State of New South Wales v Dennis

1. [1]

   By way of summons filed on 22 December 2023, the State of New South Wales (“the plaintiff”) seeks an Interim Supervision Order (“ISO”) against Shane Barry Dennis (“the defendant”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The plaintiff seeks an order pursuant to s 7(4) of the Act that the Court appoint two qualified psychiatrists or two registered psychologists to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and direct that the defendant attend those examinations.

3. [3]

   By way of interim relief, the plaintiff seeks an order:

   1. (1)

      Pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 30 April 2024 (“the ISO”);

   2. (2)

      Pursuant to s 10C(1) of the Act, that the ISO be for a period of 28 days; and

   3. (3)

      Pursuant to s 11 of the Act, directing that the defendant, for the period of the ISO, comply with the conditions set out in the Schedule to the summons.

4. [4]

   By way of final relief, the plaintiff seeks an order:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 18 months from the date of the order (“the ESO”); and

   2. (2)

      Pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in the Schedule to the summons.

5. [5]

   The plaintiff also seeks ancillary relief that an order be made that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

6. [6]

   The defendant opposes the orders sought and contends that the plaintiff’s application for an extended supervision order (“ESO”) is incompetent and should be dismissed with costs.

Background Summary

1. [7]

   The defendant is 47 years old. On 19 June 2022 he suffered an eye injury which has left him blind in his left eye and with 6/60 vision in his right eye. The defendant is legally blind and has been in receipt of a disability support pension since February 2023. He has been told by his doctors that his vision will progressively deteriorate over the next few years so that he will eventually lose all sight.

2. [8]

   The defendant reported a chaotic and unhappy childhood. The defendant’s parents separated when he was a baby and his mother remarried a year after that separation. The defendant was corporally punished by his mother and stepfather. He was exposed to family violence throughout his childhood. His mother abused drugs and was also the victim of domestic violence resulting in frequent moves to escape the violence. The defendant’s mother then had a number of partners following her re-marriage, many of whom were abusive towards the defendant. The defendant also reported being the victim of sexual abuse by a family member.

3. [9]

   During his youth, the defendant attended five primary schools and three high schools. The defendant truanted regularly and was suspended in Year 7 for carrying an air rifle and drinking alcohol. The defendant’s sister was also the subject of bullying and the defendant resorted to violence against those bullying her, in her defence. The defendant also reported he was suspended from school again in Year 8.

4. [10]

   On leaving school, the defendant began engaging in drug abuse and criminal activity. He reported injecting heroin and amphetamines around that time and has continued to use illicit substances for much of his adult life on a regular basis. The defendant engaged in delinquent behaviour for much of his youth and was first placed in juvenile detention at the age of 15. The defendant also reported that he was sexually abused whilst in juvenile detention.

5. [11]

   The defendant’s early criminal history includes offences of assault occasioning actual bodily harm and possession of an offensive implement. He has been convicted for matters of violence, including episodes of domestic violence. In January 2011, the defendant committed an aggravated robbery and was sentenced to 2 years and 3 months imprisonment with a non-parole period of 9 months. Two related charges of assault were dealt with by way of concurrent fixed terms of imprisonment. The defendant’s parole included conditions to accept drug and alcohol treatment as directed.

6. [12]

   The circumstances of the aggravated robbery in January 2011 included the defendant approaching two women on a train at about 10:00pm and taking a handbag from one of them. The women gave chase and a struggle for the bag ensued in another carriage, with the bag ending up on the floor and the women being prevented from retrieving it. The defendant blocked their path. He punched one of the victims in her ribs and in the right eye. He slapped the second victim in her sternum area. The defendant was arrested shortly after the incident and was found to be in possession of cash, a wallet, and a phone belonging to one of the victims.

7. [13]

   Between February and March 2012, the defendant attended five sessions at a relapse prevention program at the Nepean Hospital and three sessions of a SMART Recovery Australia program.

8. [14]

   On 29 August 2012, the defendant committed the index offence, an aggravated robbery causing grievous bodily harm, contrary to s 98 of the Crimes Act 1900 (NSW). At the time of offending, he was on parole for the previous aggravated robbery committed in January 2011. At about 7:00pm on 29 August 2012, the defendant boarded a train going from Kingswood to Werrington and approached a passenger from behind. He grabbed the passenger by the hair and demanded his belongings, at the same time cutting and causing a wound to the victim’s throat. The implement used to cut the victim’s throat was a device like a scalpel. As a result of the injury, the victim sustained a 16cm scar. The victim required suturing to his injured anterior jugular vein and has continued to experience pain as a result of the injury some two years later. After wounding the victim, the defendant took the victim’s phone. The defendant’s whereabouts were then detected via a location finder on the phone, adjacent to St Marys train station.

9. [15]

   For the index offence, the defendant was sentenced to 11 years imprisonment, commencing 1 May 2013 and expiring 30 April 2024, with a non-parole period of 8 years and 3 months. The defendant was released to parole on 31 July 2021. Prior to his release he completed the Violent Offender’s Treatment Program (“VOTP”). The defendant completed that program between September 2020 and July 2021. He was initially reluctant to participate and refused to consent to entry into the program, claiming that he was not violent when he was not using drugs. [1] However, he did participate and completed the program.

10. [16]

    Ms Helen Dimitrios, psychologist, completed a report (“the treatment report”) dated 4 November 2021 in respect of the defendant. She noted that the defendant’s cognitive distortions included minimising and externalising blame for his offending. The treatment report described the defendant as having anti-authoritarian attitudes which perpetuated his poor supervision compliance. The treatment report described the defendant’s violence as either “instrumental” (that is, to fund his drug addiction), in response to provocation, or as an expression of anger. The treatment report also recorded that the defendant displayed poor conflict resolution skills. A number of precipitating factors for violence were identified including antisocial intimate relationships and relationship breakdowns leading to the abuse of illicit substances; unemployment and financial strain; perceived threat, provocation or disrespect; and a lack of engagement with community support.

11. [17]

    On the other hand, Ms Dimitrios noted that the defendant had also demonstrated an ability to use assertive communication, restructure unhelpful thoughts and consider alternative perspectives. He developed goals towards a prosocial life and was motivated to engage in treatment. He reported regretting not pleading guilty to the index offence, although maintained that he used scissors and not an implement like a scalpel and that he had not attacked the victim from behind.

12. [18]

    In the six months immediately following the defendant’s release on parole (on 31 July 2021), apart from issues with housing, the defendant was progressing well. On 29 March 2022 the defendant disclosed to Community Corrections that he had used methylamphetamine the day before. [2]

13. [19]

    On 29 April 2022 the defendant reported recent “ice” and cannabis use, stating that he used “ice” when he had “nowhere to go”. [3] On 9 May 2022 the defendant reported being temporarily homeless. [4] On 19 June 2022 he suffered a significant injury to his right eye, as a result of a stick penetrating it, during swordplay with his young son. [5]

14. [20]

    On 28 June 2022 the defendant was found in possession of a small amount of cannabis and was convicted and fined for possessing a prohibited drug. On that day the defendant again made admissions to using methylamphetamine two days before.

15. [21]

    On 2 and 25 August 2022 the defendant disclosed recent use of cannabis. [6] On 6 and 27 October 2022 he disclosed recent use of methylamphetamine. [7] On 10 November 2022 he tested positive for methylamphetamine. The defendant reported to Community Corrections that his drug use related to socialising with other drug users and was a way of relieving mental health issues. [8]

16. [22]

    On 19 January 2023 the defendant again disclosed to Community Corrections that he had used methamphetamines the day before. [9] He was counselled for missing psychologist appointments and not contacting Odyssey House, a rehabilitation centre he had been engaged with. On the same day he was found in possession of a knife and charged with custody of a knife in a public place. He was subsequently convicted and fined for that offence. The 6cm knife he was found with was part of a multitool device which the defendant said was used to fix his bike.

17. [23]

    On 20 March 2023 the defendant was found at Penrith train station in possession of an extendable baton. He was convicted and fined for that offence on 2 May 2023. The defendant disclosed that three or four days prior to being in possession of the baton, he had used methylamphetamine. [10] The use of drugs on that occasion was precipitated by a deterioration in his relationship with his current partner, placing him “on edge”. [11]

18. [24]

    On 12 April 2023 the defendant was charged with contravening a domestic apprehended violence order (“AVO”). The police facts disclose that the defendant was at his partner’s house despite a condition prohibiting him from approaching her. On 13 April 2023 the defendant disclosed to a Justice Health nurse that he used methylamphetamine once or twice a week. [12]

19. [25]

    On 2 May 2023 the defendant was convicted and fined for the AVO breach that he was charged with on 12 April 2023. A further AVO was made on 2 May 2023. As a result of the charges and the defendant’s failures under supervision (including ongoing methylamphetamine use and failing to attend psychologist appointments), several parole breach reports were prepared and the defendant’s parole was eventually revoked on 20 March 2023. The defendant’s parole was restored on 11 May 2023. On 1 December 2023, the defendant was charged with and released on bail for a breach of the current AVO. On 8 December 2023 he was placed on a Community Corrections Order for a period of 12 months. The defendant appealed that decision. At the time the plaintiff’s submissions were filed, on 22 January 2024, the defendant’s appeal was next listed on 31 January 2024 at Parramatta District Court. There is no material before the Court that indicates what the outcome of that appeal was.

20. [26]

    A selection of Offender Integrated Management System (“OIMS”) notes, exhibited on this application, reveal varying degrees of progress on the part of the defendant. On several occasions, he disclosed to Community Corrections that he had used methylamphetamine. The notes disclose that he engaged with counsellors to discuss his alcohol and drug issues, amongst other things. The defendant reported on 23 August 2023, that he managed his anger through strategies that he learnt from counsellors at Relationships Australia.

21. [27]

    On 12 January 2024, the defendant reported to Community Corrections that he wanted to move to Queensland for a fresh start with his partner and did not want to be subject to police attention. [13] He acknowledged that he would have to cease drug use to do this. [14] OIMS records from 23 February 2024 indicate that the defendant had purchased a home in Queensland and intended to move there once his parole order expired. [15] A letter prepared by Michelle Attenborough, the defendant’s case worker at Odyssey House, confirms that the defendant was referred to Odyssey House Aftercare on 31 July 2023 and has attended several case management sessions. [16] Odyssey House Aftercare provides treatment options by qualified caseworkers, with programs tailored specifically to the individual client’s needs. In her letter, Ms Attenborough described Aftercare as a program which involves an integrated approach of care that guides and tracks a person over time through a comprehensive array of health services and continuous supportive care.

22. [28]

    Ms Attenborough observed the defendant to be motivated and consistently demonstrating a positive attitude towards his recovery. [17] The defendant’s case worker reported that the defendant had indicated to her he was making positive changes in his life including deleting old phone numbers, avoiding negative influences and keeping himself busy with projects and chores around the house. [18]

The Issues

1. [29]

   There are three issues for consideration.

2. [30]

   Firstly, is the defendant a “supervised offender” as defined in s 5I(2) of the Act so that an application for an ESO may be made in relation to him under s 5B of the Act? Central to that question is whether the index offence of armed robbery occasioning grievous bodily harm (contrary s 98 of the Crimes Act) is a “serious violence offence” as defined in s 5A of the Act.

3. [31]

   Secondly, if the defendant is a “supervised offender” as defined in s 5I(2), is the Court satisfied, pursuant to s 5B(d) of the Act, to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision?

4. [32]

   Thirdly, if the Court is minded to make an ISO, are the proposed orders appropriate?

5. [33]

   Whether the Court needs to consider the second and third issues, turns on the answer to the first. If the defendant is not a “supervised offender” under s 5I(2) an ESO cannot be made in respect of him. There would be no need, therefore, to consider whether the defendant poses an unacceptable risk of committing another “serious offence” (s 4(1) of the Act) if not under supervision, or whether proposed orders are appropriate.

6. [34]

   The parties agree that in the event the defendant is not a “supervised offender” it is not necessary to determine the second and third issues.

7. [35]

   As noted above, an application for an ESO may only be made in respect of a “supervised offender”: s 5I(1) of the Act.

8. [36]

   An offender is a “supervised offender” if they meet the statutory requirements set out in s 5I(2) of the Act which provides:

9. [37]

   This summary is taken from the plaintiff’s submissions filed on 22 January 2024, plaintiff’s submissions in reply, filed on 20 March 2024 and oral submissions made on 25 March 2024.

10. [38]

    The plaintiff argued that the defendant can be characterised as an “offender” for the purposes of s 4A of the Act, in relation to his index offence conviction; and that the index offence constitutes a “serious violence offence” for the purposes of s 5A(1)(a) of the Act, having regard to the elements of robbery causing grievous bodily harm and the circumstances of the offending.

11. [39]

    The plaintiff’s submissions turn on whether the index offence can properly be regarded as a “serious violence offence” and whether the defendant is a “supervised offender” within the meaning of s 5I(2)(a)(i).

12. [40]

    The plaintiff acknowledged that there has been general acceptance by the courts that the definition of what constitutes a “serious violence offence” is guided by an analysis of the elements of the index offence. With respect to Leeming JA’s conclusion in Lynn v State of New South Wales [2019] NSWCA 300 (“Lynn (CA, 2019)”) at [22], that “what matters are the elements of the offence said to constitute a serious violence offence”, the plaintiff submitted that Leeming JA did not intend to stipulate a rule that, in the context of s 5A(1)(a), the Court is limited to a consideration of the elements comprising an offence.

13. [41]

    The plaintiff seeks to rely on evidence beyond the elements of s 98 of the Crimes Act. In support of the submission that the Court can look past the elements to the circumstances of the offending, to determine whether the index offence is a “serious violence offence”, the plaintiff relies upon the following authorities.

14. [42]

    Firstly, the plaintiff addressed the judgment of State of New South Wales v Mackey [2015] NSWSC 514 (“Mackey”) where the defendant had been charged with malicious wounding with intent to cause grievous bodily harm. He was convicted in 2004 of that offence, which was contrary to s 33 of the Crimes Act. At the time of offending, s 33 relevantly required proof an offender had maliciously inflicted grievous bodily harm with intent to do so. The term “maliciously” in s 5 of the Crimes Act included an act done recklessly. It was submitted that Mackey supports the proposition that inflicting grievous bodily harm with intent to do so, or being reckless as to inflicting grievous bodily harm would fall within s 5A.

15. [43]

    Mackey does not provide support for the plaintiff’s contention that a court ought to conduct an inquiry into the circumstances or the evidence relating to the offending conduct. In Mackey the offence for which the defendant was convicted included “intent” as an element, and therefore aligned with the statutory requirements in s 5A of the Act.

16. [44]

    Secondly, the plaintiff relied on State of New South Wales v Evers [2015] NSWSC 1231 (“Evers”). In that case his Honour Button J dealt with an offender who was originally charged with five counts of murder but had been convicted of five counts of manslaughter relying on a partial defence of diminished responsibility. The index offences did not expressly contain an element of intention to kill or cause grievous bodily harm. However, his Honour considered it was implicit in the facts of the offending that shotgun blasts at a close range demonstrated such an intention.

17. [45]

    The plaintiff submitted that Evers is an example of a case in which the Court considered it was appropriate to go beyond the elements of an offence. In particular, the plaintiff relied on his Honour Button J’s comments at [34]:

18. [46]

    The plaintiff submitted that the only way to understand the emphasised text in the above passage, is that his Honour accepted the submission that the offence of manslaughter fell within the definition of a “serious violence offence.” The plaintiff accepted that in that case, the conviction for manslaughter was via a pathway of the partial defence of diminished responsibility but argued it would be wrong to regard that fact as “determinative”. His Honour went beyond the elements of the offence of manslaughter, to the specific facts, to find that the offence fell within the definition of manslaughter.

19. [47]

    Thirdly, the plaintiff relied on Decision Restricted [2016] NSWSC 1052 (“Decision Restricted’). The plaintiff submitted that Button J found that “unlike s 5 of the Act, [s 5A of the Act] did not create an offence based series of serious (sex) offences, but rather relied on an extended definition.” His Honour held that it is the elements of an offence which ought to be analysed for the purposes of s 5A(2), not the evidence relied upon to establish those elements. Button J acknowledged that in some circumstances there may be “opacity” as to the elements. The plaintiff submitted that this would “presumably” require further analysis of the underlying evidence “despite his Honour not explicitly stating so” and that it was open for a Court to have regard to the circumstances of the offending in determining whether an offence is a “serious violence offence”.

20. [48]

    The plaintiff advanced the argument that there has been no practice of applying, as a rule, the proposition that it is impermissible to go beyond the elements of the offence noting that this approach was taken in Decision Restricted.

21. [49]

    Fourthly, the plaintiff relied on State of New South Wales v Coe (Final) [2023] NSWSC 1142 (“Coe (Final)”) in which N Adams J concluded that the definition of “serious violence offence” includes, by virtue of s 5A(1)(b) of the Act, a case where the offender does not actually cause death or grievous bodily harm to an individual.

22. [50]

    The plaintiff sought to call in aid the reasoning in Coe (Final) to support the proposition that a consideration of whether an offence is a “serious violence offence” is not limited to a consideration of the elements of the offence.

23. [51]

    The plaintiff accepted that the decisions of Ford v R [2020] NSWCCA 99 (“Ford”) and Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2 support a finding that s 98 does not include an element of intention to cause grievous bodily harm (or was reckless as to causing such harm). However, the plaintiff argued that even still, the Court is entitled to consider the evidence supporting the elements of the offence.

24. [52]

    The plaintiff submitted that to say it is impossible to go behind the elements of an offence would mean that, notwithstanding an offence involving significant criminality (in this case, s 98), that offence could never fall within the scope of the Act. The plaintiff also submitted there are strong purposive considerations against such a construction.

25. [53]

    It was submitted that the facts of the index offence are an example where the underlying evidence sheds light on the state of mind of the offender in that the use of a sharp weapon causing a degree of harm, clearly evinces at the very least, a recklessness as to whether actual bodily harm would result. It was submitted therefore the Court could “readily conclude” an intention to inflict at least actual bodily harm, is established by the evidence.

26. [54]

    In short, the plaintiff submitted that in the context of the present proceedings, the defendant has been convicted of a “serious violence offence”, that being, the index offence; the defendant is therefore an “offender” within the meaning of s 4A the Act and a “supervised offender” pursuant to the definition in s 5I(2)(a)(i) owing to the defendant’s unexpired period of parole for the index offence pursuant to s 5I(3).

27. [55]

    The defendant is an offender who has served a sentence of imprisonment for a serious offence (s 5B(a)), and he is a supervised offender under s 5I(2)(a)(i) (s 5B(b)). He satisfies the requirements for an ESO application under s 5I (s 5B(c)).

28. [56]

    At the core of the defendant’s submission is the contention that the offence of armed robbery occasioning grievous bodily harm, contrary to s 98 of the Crimes Act, is not a “serious violence offence” as that term is defined in s 5A of the Act, because s 98 does not include the element of intent required by s 5A(1)(a) (“with the intention of causing…grievous or actual bodily harm). Accordingly, the defendant is not a “supervised offender” because he is not serving a sentence of imprisonment for a “serious offence” under ss 5I(1) and (2)(a)(i) of the Act.

29. [57]

    The defendant submitted that, on its proper construction, s 5A(1)(a) of the Act describes an offence which is constituted by two elements. First, conduct causing death or grievous bodily harm and, second, an intention to cause (at least) actual bodily harm.

30. [58]

    The defendant relied on Ford at [91] and Ryan to submit that s 98 is not an offence “constituted by” conduct “with the intention of causing, or while being reckless as to causing, grievous or actual bodily harm to another person” because the intention to cause bodily harm is not an element of s 98. It was submitted the s 98 offence is not “constituted by” conduct causing grievous bodily harm because it may be constituted by conduct causing lesser physical harm, namely, wounding.

31. [59]

    The defendant submitted that it is not for the Court to determine whether it could be inferred that the defendant was reckless as to causing actual or grievous bodily harm. The defendant submitted that the definition of “serious violence offence” requires the Court to consider whether the s 98 offence objectively fulfils the criteria of the definition in s 5A – and not whether the evidence establishes a relevant intention or recklessness.

32. [60]

    The defendant then turned to consider the decisions of Lynn (CA, 2019), Evers, Decision Restricted and Coe (Final).

33. [61]

    With respect to Lynn (CA, 2019), the defendant relied on Leeming JA’s remarks at [22]: “it is clear from s 5A(2) that what matters are the elements of the offence which is said to constitute a serious violence offence”, as supporting the contention that the focus, in determining whether an offence is a “serious violence offence”, is on the elements of that offence and not some inquiry into the evidence or circumstances constituting the offence.

34. [62]

    The defendant noted that in Evers, the Court was “faced with an index offence which did not contain an express element of intention to kill or cause grievous bodily harm, but his Honour considered that it was implicit in the facts of the offending that shotgun blasts at very close range demonstrated an intent to kill” (Evers at [34]). The defendant argued that his Honour examined the circumstances of the offending in the context of a case where a manslaughter verdict was “based upon a partial defence of diminished responsibility” and not upon “the absence of a requisite mental element for the offence of murder” (Evers at [34]), as in the present case.

35. [63]

    The defendant submitted that to the extent Evers appears to sanction an examination of the particular elements of an offence in the context of the defence raised it may be consistent with s 5A of the Act, as long as those elements are determined by reference to the defence raised, and not the evidence itself. Properly understood, the decision in Evers does not support an approach that allows for the examination of evidence to determine whether an offence is a “serious violence offence.”

36. [64]

    Turning to Decision Restricted, the defendant submitted that this authority supports the defendant’s position. Button J rejected the suggestion that the Court ought to look to the evidence placed before the Court in the substantive proceedings to support a conviction. In particular, the defendant relied on his Honour’s reasoning at [56]-[58] in which his Honour enumerated three reasons to reject an approach which involves looking past the elements of an offence.

37. [65]

    Further, the defendant referenced his Honour’s reasoning that the chapeau of s 5A(1) of the Act speaks of a serious indictable offence which is “well-known” to criminal law and “focuses on the characteristics of the offence” not on “the conduct underpinning the offence.”

38. [66]

    The defendant acknowledged that in strongly preferring an approach that focused on the elements of an offence, Button J did contemplate a qualification to that approach in limited cases. His Honour noted that in “some limited circumstances… the elements of the offence are not the end of the matter.” The defendant submitted that properly understood, the “limited circumstances” are confined to cases where an offence could have variable elements.

39. [67]

    The defendant submitted that Coe (Final) is of little assistance. It is not in contention that an offence of attempting to commit, or conspiring with, or inciting another person to commit, a particular type of violent offence can be a “serious violence offence”. Additionally, the offence with which the defendant has been convicted is not one of attempting, conspiring, or inciting another to offend.

40. [68]

    It was submitted that the defendant is not serving a sentence of imprisonment for a “serious offence” within s 5I(2)(a) and is neither an “offender”, nor a “supervised offender” in relation to whom an application for an ESO may be made. As such, it was submitted the application is incompetent and the summons filed on 22 December 2023 ought to be dismissed.

Consideration

1. [69]

   It is useful to set out the legislative history in order to appreciate the close consideration that has been given to the development of the relevant statutory requirements and the multiple occasions on which the legislation has been amended to address perceived inadequacies, additional concerns, and expand the category of offences covered by the Act.

2. [70]

   In Australia, legislation relating to ongoing detention began to emerge at the beginning of the 20th century. In New South Wales that type of legislation took the form of the Habitual Criminals Act 1905 (NSW). Section 3 of that Act empowered a judge to declare, at their discretion, a person as an “habitual criminal” as provided for:

3. [71]

   Pursuant to s 5 of the Habitual Criminals Act, every “habitual criminal” was, at the completion of their sentence, to be detained at his Majesty’s pleasure, and subject to the regulations, in some place of confinement set apart by the Governor, by proclamation in the Gazette, for that purpose. Section 13 of the Habitual Criminals Act defined any place of confinement under that Act to be a “prison” within the meaning of the Prisons Act 1899 (NSW).

4. [72]

   Section 3 of the Habitual Criminals Act dealt with defining an offender as a “habitual criminal” at the time of conviction. Limitations upon and curtailments of an offender’s liberty that are imposed at the time of conviction and sentence have not been an uncommon feature of Australian sentencing regimes. Features such as this include, for example, mandatory sentencing requirements. The Habitual Criminals Act of 1905 was eventually replaced by the Habitual Criminals Act 1957 (NSW).

5. [73]

   The high risk offender legislative scheme, however, targets the liberties of an offender at a distinctly different stage in the sentencing process. It deals with characterising offenders as “supervised offenders” and the controls that are imposed upon “supervised offenders” after the completion of a sentence. In contrast to sentencing schemes that impose controls upon offenders at the time of conviction (or shortly thereafter), legislation that allows post-sentence curtailment of an offenders liberties is of more recent origin. [19]

6. [74]

   A number of post-sentence preventative detention regimes were enacted across Australian jurisdictions in the 1990s, Victoria being the first to do so, with the Community Protection Act 1990 (Vic). New South Wales was the second.

7. [75]

   The Community Protection Act 1994 (NSW) (now repealed) came into force on 9 December 1994. The introduction of that Act was prompted by offending of Gregory Wayne Kable. In the course of Mr Kable serving a term of imprisonment for the manslaughter of his wife, he sent a number of threatening letters to members of his deceased wife’s family, which raised safety concerns for them. As a result, the Community Protection Act was introduced. Section 3 of that Act related specifically to Mr Kable and provided:

8. [76]

   The Community Protection Act was the subject of a constitutional challenge in the High Court. Brennan CJ noted in Kable v DPP (NSW) (1996) 189 CLR 51 at 63; [1996] HCA 24 (“Kable”) that whilst the provisions in the Community Protection Act were introduced in general terms, they were amended and “restricted in the course of the passage of the Bill through Parliament” notably because “the liability to suffer the consequences of a detention order was limited so that only the person against whom a detention order might be made was the appellant, Gregory Wayne Kable”. A majority of the High Court bench ultimately held that the Community Protection Act was invalid as it required a Chapter III court (as defined in the Commonwealth Constitution) to perform a non-judicial function incompatible with federal judicial power and was incompatible with s 71 of the Commonwealth Constitution.

9. [77]

   Thereafter, a series of Bills seeking to introduce post-sentence preventative detention schemes targeted towards serious sex offenders emerged in the 2000s. [20] In 2003 the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) came into force in Queensland, which introduced a scheme of supervision orders and post-sentence preventative detention. In effect, the Dangerous Prisoners (Sexual Offenders) Act is similar to NSW legislation relating to high risk offenders, which will be discussed below. Section 13 of the Dangerous Prisoners (Sexual Offenders) Act enables the Court to make an order in respect of a prisoner if the Court is satisfied the prisoner is a “serious danger to the community” and there is an unacceptable risk the prisoner will commit a serious sexual offence if the prisoner is released from custody or released from custody without a supervision order.

10. [78]

    Like the Community Protection Act, the Dangerous Prisoners (Sexual Offenders) Act was also subject to constitutional challenge. However, unlike the decision in Kable, the High Court held in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 (“Fardon”) the legislation was constitutional. This had the effect of acting as a “green light” for a number of other states, including NSW, to introduce post-sentence preventative detention schemes. [21]

11. [79]

    Two years after the decision in Fardon, in 2006 the New South Wales Parliament introduced the Crimes (Serious Sex Offenders) Bill 2006 (NSW). The Bill was directed towards targeting:

12. [80]

    The Crimes (Serious Sex Offenders) Act 2006 (NSW) commenced operation on 3 April 2006.

13. [81]

    It is helpful at this point to note that the Crimes (Serious Sex Offenders) Act 2006 (NSW) was subject to a number of amendments one of which broadened the scope of the Act to violent offenders, such that the name of the Act was amended to the Crimes (High Risk Offenders) Act 2006 (NSW). The amending acts of relevance, that will be discussed below, are the:

    1. (1)

       Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW);

    2. (2)

       Crimes (High Risk Offenders) Amendment Act 2014 (NSW);

    3. (3)

       Crimes (High Risk Offenders) Amendment Act 2016 (NSW); and the

    4. (4)

       Crimes (High Risk Offenders) Amendment Act 2017 (NSW).

14. [82]

    In March 2013, the Crimes (Serious Sex Offenders) Amendment Bill 2013 (NSW) (“2013 Amendment Bill”) was introduced for the purpose of broadening the scope of the Crimes (Serious Sex Offenders) Act 2006 (NSW) to apply to violent offenders who had not engaged in sexual offending.

15. [83]

    The 2013 Amendment Bill was precipitated by an examination of the Crimes (Serious Sex Offenders) Act 2006 conducted by the New South Wales Sentencing Council commencing in 2009, and a Statutory Review of the Act in 2010. During the course of the Statutory Review, in April 2010, and in line with a direction from the Premier of New South Wales, Corrective Services undertook an audit of all “serious offenders” in custody. [23] The audit was designed to identify which violent offenders were not taking responsibility for their actions; identify which offenders were participating in rehabilitation programs; and help determine whether stricter orders should be implemented to keep offenders incarcerated. [24] The Statutory Review noted that despite its infrequent use, the Habitual Criminals Act 1957 had not yet been repealed, and was still the law in New South Wales and considered that the issue of post-custody management options for high risk violent offenders should be referred to the New South Wales Sentencing Council. [25] In the New South Wales Sentencing Council’s Report published in May 2012, the majority of the New South Wales Sentencing Council reached a view that with respect to the legislative framework that existed in NSW at the time "there [was] a gap that might justify an additional sentencing or post-custody management option for high risk violent offenders.” [26]

16. [84]

    The Crimes (Serious Sex Offenders) Amendment Bill 2013 altered the name of the Act by replacing “Serious Sex Offenders” with “High Risk Offenders”. The Bill also introduced s 5A into the Crimes (High Risk Offenders) Act (as it became known as) which set out the term “serious violence offence” in the following terms:

17. [85]

    In considering Parliament’s intention as to the operation of the legislation, as amended, it is relevant to briefly reflect on the Second Reading Speech for the 2013 Amendment Bill:

18. [86]

    Helpfully, comments in the Second Reading Speech for the 2013 Amendment Bill also shed light on the meaning of “serious violence offence” and what comprises a “serious violence offence”:

19. [87]

    On 19 March 2013 the Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW) commenced operation.

20. [88]

    Further amendments were made to the Crimes (High Risk Offenders) Act 2006 (NSW) in October 2014. The Crimes (High Risk Offenders) Amendment Bill 2014 (NSW) was introduced and passed as the Crimes (High Risk Offenders) Amendment Act 2014 (NSW). The 2014 Amendment Act established a High Risk Offenders Assessment Committee (s 24AB of the Act) and introduced ex parte emergency detention orders (s 18CA of the Act), amongst other amendments (none of which provide insight into the origins of or definition of “serious violence offence”). The 2014 Amendment Act also inserted the definition of “serious offence” in the following terms:

21. [89]

    Two years later, the Crimes (High Risk Offenders) Amendment Bill 2016 was passed. The Crimes (High Risk Offenders) Amendment Act 2016 (NSW) commenced on 7 June 2016 and inserted subsection (2A) into s 5A of the Act to clarify the reference to a “serious violence offence”.

22. [90]

    At the time of amendment, s 5A of the Act was in the terms set out at [84] of this judgment.

23. [91]

    The provision that was inserted by the 2016 Amendment Act after s 5A(2) provides:

24. [92]

    The Explanatory Note to the Crimes (High Risk Offenders) Amendment Bill 2016 (NSW) states that:

25. [93]

    In the Second Reading Speech to the Crimes (High Risk Offenders) Amendment Bill 2016, the Attorney-General stated that, if passed, that Act will apply to violent offenders who have been imprisoned for a number of specific offences:

26. [94]

    The Attorney-General made clear that up until this amendment, a number of violent crimes were not covered by the Act owing to “technical elements of the offence”, clearly implying that the “elements” of the offence are what precluded a number of offences, supporting the contention that it is elements (and only the elements, given there is no reference to evidence beyond the elements) that must be used to determine the nature of a “serious violence offence”.

27. [95]

    It is also noted in that Second Reading Speech that prior to the 2016 Amendment Act there was a “limitation in the Act whereby people who have engaged in the same criminal conduct… are either covered or not covered by the Act depending on the offence they were charged with and convicted of.” The limitation in the Act stemmed from certain offences falling within the definition of a “serious violence offence” based on their elements only.

28. [96]

    The Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) was subsequently introduced and passed as the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) to further amend the Act. Of relevance, the definition of “serious offence” was amended in the following manner:

29. [97]

    The 2017 Amendment Act related to “eligibility requirements” and was targeted towards “generalist offenders” who have a history of “general offending rather than a category of one offence” [32] .

30. [98]

    The Explanatory Note to the Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) states that an object of the Bill is:

31. [99]

    The Second Reading Speech for the Crimes (High Risk Offenders) Amendment Bill 2017 states:

32. [100]

    As can be gleaned from this brief legislative history, considerable attention has been given to the objectives of the statutory regime; the offences that should be included within its scope; the operation of the Act; and, importantly, its limitations, given the substantial intrusion on the liberty and privacy of the individual, that the making of a supervision order entails.

33. [101]

    In construing statute – in this case, s 5A and the definition of “serious violence offence” contained within that provision – I have had regard to the principle of legality as set out by French CJ in Momcilovic v the Queen [2011] HCA 34; (2011) 245 CLR 1 at [42]-[43]:

34. [102]

    Regard must be had to the primary object of the Act which is contained in s 3(1) and is to:

35. [103]

    The word “ensure”, which is referred to in the objects of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: State of New South Wales v King (Final) [2019] NSWSC 151 (“King (Final)”) at [11].

36. [104]

    Another object of the Act is to encourage high risk offenders to engage in rehabilitation, provided for in s 3(2) of the Act:

37. [105]

    The Court’s power to impose particular conditions upon a “supervised offender” depends upon the scope of the Act: State of New South Wales v Rush (Final) [2022] NSWSC 984 at [91] citing Winters v Attorney-General of New South Wales [2008] NSWCA 33 at [19].

38. [106]

    Imposing restrictions or constraining an individual’s liberty requires careful consideration. In State of New South Wales v Donovan [2015] NSWSC 1254 McCallum J (as her Honour then was) considered at [2] that:

39. [107]

    There are a number of principles the Court must have regard to when imposing conditions on an offender. Those principles are set out in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44]:

40. [108]

    The conditions imposed upon an offender must not be unjustifiably onerous or simply punitive: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing R A Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003. Nor should those conditions be, as set out in State of New South Wales v Bugmy [2017] NSWSC 855 at [89]:

41. [109]

    The principles applying to the extent and nature of conditions attaching to an order also reflects a recognition of the balance between community safety, acknowledging its primacy as an objective, and the liberty and privacy of an individual.

42. [110]

    Section 5H of the Act provides that the State may apply to the Supreme Court for an ESO against an “offender”.

43. [111]

    Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a “supervised offender”.

44. [112]

    A “supervised offender” is defined in s 5I(2) of the Act. For the purposes of this application, a “supervised offender” is a offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a “serious offence”: s 5I(2)(a)(i).

45. [113]

    A “serious offence” is defined as a “serious violence offence” under s 4(1) of the Act, which provides:

46. [114]

    The definition of a “serious violence offence” is contained in ss 5A(1), (2) and (2A) of the Act, which provide:

47. [115]

    The Court’s power to make an ESO is discretionary. Section 9(1) of the Act provides that the Court may determine an application for an ESO by either making an ESO or dismissing the application.

48. [116]

    Sections 9(2) and (3) of the Act provide for a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO as follows:

49. [117]

    The first issue requires a determination of whether this application for an ESO is competent, a question that involves consideration of whether the index offence is a “serious violence offence”. In short, in order to be the subject of preliminary orders, the defendant must have been imprisoned after conviction for a “serious violence offence” as defined in s 5A of the Act.

50. [118]

    In determining if an offence is a “serious violence offence”, a question arises as to whether the Court is limited to a consideration of the constituent elements of the offence of which the defendant has been convicted or whether the Court is entitled to have regard to the evidence said to substantiate those elements; to draw inferences from that evidence, and to make findings outside the scope of the elements of the offence.

51. [119]

    The defendant has been convicted of and is serving a sentence for an offence against s 98 of the Crimes Act. Section 98 provides:

52. [120]

    The elements of an offence contrary to s 98 are that:

    1. (1)

       While the offender was:

    2. (2)

       The offender did rob or assault a person;

    3. (3)

       The offender did have the intention to rob any person; and

    4. (4)

       In doing so – either immediately before, after, or during the robbery – assaults, wounds or inflicts grievous bodily harm on such a person.

53. [121]

    In Ryan the High Court considered the offence of armed robbery with wounding contrary to the Crimes Act which at that time provided:

54. [122]

    It is clear on the text of s 98 that an offence contrary to that provision is not constituted by an intention to cause, or recklessness as to causing, grievous or actual bodily harm to another person. Intention and/or recklessness as to grievous bodily harm is not an element of the offence; only the infliction of that grievous bodily harm is an element of the offence. A key observation in Ryan was that where the act which caused “wounding” was not in any relevant sense an act of the accused, a charge contrary to s 98 would fail, because, in that situation it was not the accused’s act that had caused the wounding: Ryan at [231] per Taylor and Owen JJ.

55. [123]

    In Ryan, Barwick CJ also commented on the construction of s 98, in particular, with respect to “wounding” at 223-224:

56. [124]

    In the above passage, his Honour draws on the terms of s 96 of the Crimes Act to shed light on the scope of s 98, and whether intention is required to prove an offence under that provision. Section 96 is in somewhat similar terms to s 98 and provides:

57. [125]

    Barwick CJ considered that it is only necessary that an individual must be wounded in the course of a robbery and there need not be an associated intention to wound. It is sufficient that wounding of someone is caused by an act of the accused. His Honour in particular noted that in s 98, it was not necessary to import “maliciously” – a word indicative of some level of intention – prior to “wounds” in s 98 so that the provision would read that “whosoever… maliciously wounds, or inflicts grievous bodily harm.” The absence of the term in s 98 would suggest that Parliament did not intend that an accused’s intention to inflict grievous bodily harm is required to be proved for an offence contrary to s 98.

58. [126]

    This construction appears to suggest that there was an express exclusion of intention as an element of s 98, which supports the submission that s 98 does therefore not fall within the scope of “serious violence offence” under s 5A(1)(a) of the Act (which requires that a defendant has the “intention of causing” or is “reckless as to causing, the death of another person or grievous or actual bodily harm to another person”).

59. [127]

    State of New South Wales v Lynn [2013] NSWSC 1147 (“Lynn (SC, 2013)”) appears to be one of the earliest decisions that dealt with the scope of the term “serious violence offence” under s 5A of the Act (albeit briefly), following the 2013 amendments to the Act. The judgment related to an application for an ISO.

60. [128]

    It is useful to note at this point, that after the decision in Lynn (SC, 2013) two subsequent procedural rulings were made in relation to Mr Lynn. One in 2015, State of New South Wales v Lynn [2015] NSWSC 665 (“Lynn (SC, 2015)”) per Hidden J, and the other in 2019, State of New South Wales v Lynn (Final) [2019] NSWSC 580 (“Lynn (SC, 2019)”), per Ierace J. Neither of these decisions dealt with the meaning of “serious violence offence” in detail. The later decision of Ierace J, Lynn (SC, 2019), was subject to an appeal, Lynn (CA, 2019), which will be dealt with further below. All the decisions related to the same offending committed by Mr Lynn.

61. [129]

    His Honour Button J’s decision in Lynn (SC, 2013) did not set out the specific facts of Mr Lynn’s offending. However, Hidden J’s judgment in Lynn (SC, 2015) which related to an ESO application, did set out the facts of the offending. The following summary of that offending is therefore taken from Lynn (SC, 2015).

62. [130]

    Mr Lynn was refused service at a hotel in Parramatta after extensive drinking and then became involved in an altercation with the victim. An agreed statement of facts attributed to the victim the words: “I will kill you, motherfucker”, to which Mr Lynn replied: “not if I get you first”. Mr Lynn stabbed the deceased once, very quickly, at the base of the neck above the collarbone. The victim died from blood loss from the stab wound, which had perforated a large vein above his heart and wounded his lung.

63. [131]

    Mr Lynn was charged with murder. In April 2008 a jury was unable to agree upon a verdict. He subsequently entered a plea of guilty to manslaughter which was accepted on the basis of excessive self-defence.

64. [132]

    Button J considered the background to the application for the ISO at [5]. The defendant was in custody at the time of hearing, having breached parole. His sentence was set to expire in two days. That sentence related to the defendant’s conviction for manslaughter that was entered as a result of a plea of guilty on the basis of excessive self-defence.

65. [133]

    With respect to Mr Lynn’s manslaughter conviction falling within the scope of a “serious violence offence” under s 5A, Button J remarked at [9]:

66. [134]

    His Honour makes clear that an offence that comprehends an element of intention (to kill or inflict grievous bodily harm), as Mr Lynn’s manslaughter plea did, may fall within the scope of s 5A. In the present case, the conviction for the s 98 offence comprehends the elements of s 98. Those elements do not include “intention”. The elements are not opaque. The pathway to conviction in the present case did not involve variable elements and there was no pathway to conviction which comprehended elements of intention or recklessness.

67. [135]

    The case of Evers does not support the plaintiff’s contention. Evers related to an application for an ISO. In Evers the defendant was originally charged with five counts of murder. In a trial by judge alone in the Supreme Court of New South Wales, the defendant relied upon the partial defence of diminished responsibility (a partial defence that is similar, but not identical, to the partial defence of substantial impairment now contained in s 23A of the Crimes Act): Evers at [11]. The Crown did not dispute that the mental condition of the defendant at the time of the offences should reduce his culpability. He was, as a result, convicted of five counts of manslaughter.

68. [136]

    The parties jointly submitted in Evers that all of the statutory preconditions for the making of the orders had been established: Evers at [32]. Although Button J did examine the circumstances of the offending in concluding that the conduct demonstrated an intention to kill (at [34]), His Honour did not state as a matter of principle, that in determining whether an offence is a “serious violence offence”, a court should consider the evidence or the circumstances of the offending. (Indeed, in a later decision, Decision Restricted, Button J explicitly rejected such an approach at [68].)

69. [137]

    Furthermore at [34], Button J emphasised that “the verdict of not guilty of murder but guilty of manslaughter was based upon the partial defence of diminished responsibility; it was not based upon the absence of a requisite mental element for the offence of murder”:

70. [138]

    The above passage demonstrates that some recourse was had to the circumstances of the offending noting that the offending “…featured, at the very least, an intention to cause grievous bodily harm to another person” because the repeated discharge of a firearm at close range “unquestionably” demonstrated an intention to kill. Unlike the present offending, the elements of the offence in Evers were determined based on the partial defence of diminished responsibility that was raised, and not simply on the evidence.

71. [139]

    The defendant’s conviction for manslaughter by reason of diminished responsibility contemplated the elements of murder (including intention). Unlike Evers, the present defendant’s conviction was not reached through a finding of guilt to an alternate charge, by a process of reasoning that must have comprehended an element of intention.

72. [140]

    Evers was decided prior to the 2016 amendments to the Act which broadened the definition of “serious violence offence” to include constructive murder, manslaughter by unlawful and dangerous act, and wounding with intent to cause grievous bodily harm. [35] It is useful, therefore, to examine the authorities post-dating those amendments.

73. [141]

    The two key decisions relating to a “serious violence offence” that were decided after the 2016 amendments are Decision Restricted and Lynn (CA, 2019). Both Lynn (CA, 2019) and Decision Restricted, strongly support the proposition that the Court ought to look only to the elements of an offence to assess whether an offence is “serious violence offence”, save for limited circumstances.

74. [142]

    In Decision Restricted the defendant was convicted and sentenced to imprisonment for an offence of causing grievous bodily harm while reckless as to the infliction of actual bodily harm, contrary to s 35(2) of the Crimes Act. The making of an ESO was opposed by counsel for the defendant. A central dispute was whether the preconditions for the making of such an order had been established by the plaintiff.

75. [143]

    It was submitted in that case that when deciding whether s 35(2) was a “serious violence offence”, the Court was required to examine the evidence in the criminal proceedings for the index offence. Button J summarised the submissions for the defendant at [54] as follows:

76. [144]

    At [56]-[58] of Decision Restricted, Button J rejected the defendant’s submission that the Court ought to look to the evidence when determining whether an offence is a “serious violence offence” for the purposes of s 5A of the Act, for the following reasons:

77. [145]

    Of note, in particular, is that his Honour specifically considered that prior to the 2016 amendments to the Act, there were a small subset of offences for which the evidence of an offence could be considered to determine whether that offence was a “serious violence offence” at [60]-[61]:

78. [146]

    His Honour went on to say that there may be some exceptions, requiring a consideration of the evidence and/or circumstances of the offending but that such a course should only be taken where the elements of the offence are “opaque” at [62]:

79. [147]

    Button J ultimately concluded at [68]:

80. [148]

    The elements of s 35(2) – that a person causes grievous bodily harm to any person and/or is reckless to causing actual bodily harm to that or any other person – considered in Decision Restricted, are clearly encompassed within the definition of a “serious violence offence”. Section 5A(1)(a) of the Act clearly contemplates that a person who is “[engages in conduct] that causes… grievous bodily harm to another person… with the intention of causing, or while being reckless as to causing…. actual bodily harm to another person.” In Decision Restricted the defendant was convicted of and imprisoned for the offence of causing grievous bodily harm while reckless as to actual bodily harm. The elements themselves included recklessness.

81. [149]

    Unlike the “limited class of offences” referred to by Button J in Decision Restricted, in this case, the elements of the s 98 offence are not opaque.

82. [150]

    The decision in King (Final) related to an application by the plaintiff for an ESO to be imposed on the defendant who had been convicted of an offence contrary to s 35(2) of the Crimes Act, of recklessly inflicting grievous bodily harm. That is, the defendant caused grievous bodily harm and was reckless as to causing grievous bodily harm.

83. [151]

    In that case, Walton J dealt with a submission by a defendant that the Court could not be satisfied that the defendant was an “offender” because the victim’s injury, based on what was contained in an agreed statement of facts (placed before the District Court in the sentencing of the offender for the index offence), did not amount to “grievous bodily harm”. It was submitted that the Court could not be satisfied that the offence was a “serious violence offence” as that term is defined in s 5A: King (Final) at [19(2)]). Walton J rejected that construction: at [20].

84. [152]

    To find that the injury was not in fact “grievous bodily harm” would require the Court to look beyond the elements to consider the evidence of the harm sustained by the victim. His Honour reasoned (at [25]-[28]) that it was not appropriate for the Court to make a “separate factual determination as to whether, on the material before the Court in support of an application for an ESO, there was proof of the necessary “elements”:

85. [153]

    In King (Final) Walton J agreed with Button J’s reasoning in Decision Restricted at [68], that the characterisation of a “serious violence offence” ought to be “limited to the elements of an offence of which he was convicted, and for which he was sentenced to imprisonment”: King (Final) at [32]. Walton J further commented at [32]-[33] that:

86. [154]

    In the present case, there is no dispute that the defendant has been convicted of an offence contrary to s 98 of the Crimes Act. Unlike the offence in King (Final), contrary to s 35(2), the elements of s 98 do not include an intention of causing, or recklessness as to causing, grievous or actual bodily harm to another person. Rather, s 98 requires only that “[w]hosoever…immediately before, or at the time of, or immediately after… inflicts grievous bodily harm upon, such person.” There is nothing opaque about the elements of the offence.

87. [155]

    Lynn (CA, 2019), is strong support for the proposition that what matters is the elements of the offence which is said to constitute a serious violence offence: [22]. The respondent’s conviction for manslaughter in Lynn (CA, 2019) comprehended all the elements of murder, which, relevantly, included an element of intent. That is in no way analogous to the index offence in this case, an offence contrary s 98 of the Crimes Act, which does not explicitly include intention as an element of that offence.

88. [156]

    The decision in Coe (Final) does not support the plaintiff’s contention. An issue raised in Coe (Final) was whether conspiring to discharge a firearm with intent to cause grievous bodily harm is a “serious violence offence” for the purposes of s 5A(1)(b). In Coe (Final) the index offence was one of intending to cause grievous bodily harm with intent by discharging a firearm contrary to s 33A of the Crimes Act.

89. [157]

    Both parties agreed the statutory criteria were met for the purposes of s 5A and both agreed that the offence of discharging a firearm fell within s 5A(1)(b) of the Act. The State, however, in its role as a model litigant, raised a “threshold jurisdictional issue” as to whether the index offence of conspiring to discharge a firearm with intent to cause grievous bodily harm is a “serious violence offence.” Both parties agreed that the offence of discharging a firearm fell within s 5A(1)(b): Coe (Final) at [11].

90. [158]

    The decision in Coe (Final) does not assist in determining whether a court is permitted to look beyond the elements of an offence to the evidence in determining whether an offence is in fact, a “serious violence offence” for the purposes of s 5A. The issue raised by the State and dealt with by N Adams J, clearly related to the statutory language of s 5A(1)(b) which specifies that a “serious violence offence” can be constituted by a person “attempting to commit or conspiring with or inciting another person to commit” a “serious violence offence”. The offending engaged in by the defendant in this case does not concern any form of conspiracy, attempt or incitement of a serious violence offence.

91. [159]

    The analysis of the previous cases supports the following conclusions:

Determination

1. [160]

   In my view the question of whether an index offence satisfies the definition of a “serious violence offence” requires an analysis of the elements of the offence itself. It does not (except in limited circumstances as described above) require an analysis of the evidence concerning the commission of the offence in question. Put another way, I do not accept that, in order to determine whether the defendant has committed a “serious violence offence”, consideration of the evidence that was placed before the trial court to substantiate the elements of the offence, is required. My analysis in this case is properly limited to the elements of the index offence.

2. [161]

   The index offence does not contain an element of an intention (or recklessness) to cause death of another person or grievous or actual bodily harm to another person. The elements of a s 98 offence include a requirement that the prosecution establish that at the time of, or immediately after the robbery, grievous bodily harm was inflicted upon the victim. There is no requirement to prove a state of mind involving either an intention or recklessness to inflict such harm.

3. [162]

   It follows, that I am not satisfied in the circumstances of this case that the index offence is a “serious violence offence”. An application for an ESO may be made only in respect of a “supervised offender”. Given that I am not satisfied that the index offence is a “serious violence offence”, the defendant is not a “supervised offender” and the application for an ESO is incompetent and should therefore be dismissed.

4. [163]

   Accordingly, the orders are as follows:

   1. (1)

      The plaintiff’s summons filed on 22 December 2023 is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.