State of New South Wales v Potger

1. [1]

   On 30 August 2023, the plaintiff, State of New South Wales, (“the State”) commenced proceedings by Summons against the defendant, Noel Potger, seeking orders pursuant to the Crimes (High Risk Offenders) Act 2006 (“the Act”), including a final order for the imposition of an Extended Supervision Order (“ESO”).

2. [2]

   This judgment deals with the State’s application for interim and interlocutory relief. The State seeks:

3. [3]

   As well, ancillary relief is sought with respect to the confidentiality of the documents on the file.

4. [4]

   The defendant, by his counsel, consented to the making of the interlocutory and interim orders sought by the State on the conditions ultimately agreed to between the parties, subject to one condition discussed below.

5. [5]

   As this is a civil proceeding in which the defendant is represented by counsel, the Court is entitled to rely upon the various concessions made by counsel. Those concessions included:

6. [6]

   As well, it is accepted by the State and the defendant that the offender’s current custody, which is due to expire on 22 November 2023, will expire before the proceedings commenced by Summons are finally determined.

Interim Supervision Order

1. [7]

   Section 10A of the Act vests a discretion in the Court to make an order for the interim supervision of an offender where the statutory preconditions to the proceedings have been met, the offender’s current custody will expire before the proceedings are determined, and that the matters alleged in the documentation relied upon by the State would, if proved, justify the making of an ESO. –The concessions of the defendant address each of these underlying matters.

2. [8]

   I note that the defendant makes no concession about whether, ultimately at a final hearing, on all of the evidence then available to the Court, an ESO should be made. No concession made in these proceedings relates to any such question.

3. [9]

   It is necessary also to note that the last matter requires the Court to be satisfied on this application that the supporting documentation of the Crown would, if proved, justify the Court being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, being a serious violence offence, if not kept under supervision: see s 5B(d) of the HRO Act.

Conviction and Imprisonment

1. [10]

   The defendant was convicted of an offence of the reckless causing of grievous bodily harm in company, for which he was, on 11 December 2018, sentenced to a term of imprisonment of 2 years and 9 months with a non-parole period of 1 year and 8 months.

2. [11]

   That offence occurred whilst the defendant was in custody in a correctional centre. The sentencing Judge described the offence as objectively serious, and well within the mid-range of objective seriousness. The defendant was 21 years old at the time of that offence.

3. [12]

   As is clear, the sentence for that serious violence offence has expired.

4. [13]

   However, the defendant is presently in custody as a consequence of a sentence imposed by Gallagher DCJ on 13 July 2023 for an offence of reckless wounding contrary to s 35(4) of the Crimes Act 1900. Two other offences were taken into account on the Form 1. Gallagher DCJ sentenced the defendant to a term of imprisonment of 2 years and 6 months to commence on 28 July 2022, with a non-parole period of 1 year and 3 months.

Expert Reports

1. [14]

   In a risk assessment report dated 15 April 2023, prepared by Mr Mystakidis, a psychologist in the Serious Offenders Assessment Unit, the author concluded that the defendant was in the high risk category for violent offending.

2. [15]

   Mr Mystakidis accepted that the defendant had completed the Violent Offenders Therapeutic Program and other programs to address his previous behaviour. He noted that the defendant’s level of compliance and responsivity were poor, although when he engaged in individual intervention with the maintenance program of the Violent Offenders Therapeutic Program that there had been positive reports of his level of engagement. Post-treatment, the assessment of the defendant’s risk for violence was that he was in the high range.

3. [16]

   A Risk Management Report dated 19 May 2023, prepared by officers of the Extended Supervision Order Team, noted that the defendant was able to be effectively managed in the community by the imposition of an ISO with conditions.

4. [17]

   Finally, I note that the material relied upon by the State with respect to the defendant’s behaviour whilst in custody suggested that, notwithstanding the various programs which the defendant had undertaken, he continued to demonstrate a lack of respect, or at least an indifference towards authority.

5. [18]

   Since March 2022, the defendant has had 35 disciplinary offences recorded against him whilst in custody relating to violence, disobeying a direction, or failing to comply with the routine of the Correction Centre.

6. [19]

   Whilst it is important to note that conduct in custody is not necessarily a reliable predicter of the defendant’s behaviour in the community, it may in the circumstances be additional material which, if accepted, would justify the making of an ESO.

Conclusion

1. [20]

   In the circumstances outline above, namely that the material relied upon by the State is sufficient, if proved, to justify the making of an ESO and the defendant, through his counsel, accepts that that is so, it will be appropriate to make an ISO for a period of 28 days.

Conditions

1. [21]

   Ultimately, after discussion and debate, the parties agreed on all of the conditions which are to be imposed except for Condition 10, which is the following form:

2. [22]

   In State of NSW v Sotheren (preliminary) [2018] NSWSC 754 at [25], Johnson J said:

3. [23]

   In oral submissions, counsel for the State, when asked to identify “the risk to which the curfew [condition] is addressed”, said:

4. [24]

   Counsel called in aid the contents of paragraphs 74 and 75 of the Risk Assessment Report dated 15 April 2023, to which earlier reference has been made in [1616].

5. [25]

   Those paragraphs contain the following:

6. [26]

   The State submitted particularly having regard to the remarks in paragraph 74, that the Court should take:

7. [27]

   I accept, as Johnson J said in Sotheren at [24], that it is necessary to bear in mind that the effect of including a condition is to expose the defendant to criminal sanctions if the condition is breached. Accordingly, so his Honour remarked, a basis needs to be demonstrated for including the conditions in the first place.

8. [28]

   I also note that other conditions which are sought, and which are not opposed, are that the defendant is to wear electronic monitoring equipment as directed by the Departmental Supervising Officer (“DSO”) and that he is obliged to obey all reasonable directions of a DSO. Each of those conditions are sufficient, so it seems to me, to address the risk which may arise if the defendant is found to be persistently or regularly absent from his accommodation between the hours specified in the present proposed curfew condition.

9. [29]

   In those circumstances, I am not satisfied that the curfew condition is necessary for the protection of the community in circumstances arising from the risks which the defendant is said to pose. I decline to include the curfew condition (Condition 10), as a condition of the order which I make.

Orders

1. [30]

   I make the following orders:

   1. (1)

      Order pursuant to s 7(4) of the Crimes (High Risk Offenders Act) 2006 that:

   2. (2)

      Order that: