State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311 Hearing dates: 17 October 2024 Date of orders: 21 October 2024 Decision date: 21 October 2024 Jurisdiction: Common Law Before: Yehia J Decision: (1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): (a) I appoint two qualified psychiatrists or two registered psychologists (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) I direct the defendant attend those examinations. (2) Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order commencing on 22 October 2024. (3) Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days. (4) Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment. (5) I order 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 of access. Catchwords: HIGH RISK OFFENDER – Preliminary hearing – application for Interim Supervision Order pursuant to s 10B of the Act – whether the index offence is a "serious violence offence" as defined in s 5A(1)(b) – appropriate conditions – striking a balance between supervision of the defendant and his personal liberty – interim supervision order is granted – variation of the proposed conditions Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a) Crimes Act 1900 (NSW), ss 29, 33A, 33(1)(b), 86(3), 98 Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 4A, 5A, 5A(1),5A(2), 5A(2A), 5A(1)(a), 5A(1)(b), 5B, 5B(d), 5I(2), 7(4), 9 ,10A, 10C(1), 11 Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales [2019] NSWCA 300 State of New South Wales v Dennis [2024] NSWSC 388 State of New South Wales v Dillon (Final) [2018] NSWSC 1626 State of New South Wales v French (Final) [2017] NSWSC 1475 State of New South Wales v Holschier (No 3) [2019] NSWSC 341 State of New South Wales v HT (Preliminary) [2023] NSWSC 249 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v McGorm (Final) [2019] NSWSC 484 State of New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 State of New South Wales v Pacey [2015] NSWSC 1983 State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 State of New South Wales v Windle (No 6) (Final) [2020] NSWSC 753 Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Calhoun (a pseudonym) (Defendant) Representation: Counsel: J Emmett SC (Plaintiff) Calhoun (a pseudonym) (Self-represented)

Solicitors: Crown Solicitor's Office (Plaintiff) Calhoun (a pseudonym) (Self-represented) File Number(s): 2024/00268777 Publication restriction: Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) the defendant is referred to by the pseudonym "Calhoun" until the final hearing of this matter.

JUDGMENT

Introduction 1. By way of amended summons filed on 29 August 2024, the State of New South Wales ("the plaintiff") seeks an Interim Supervision Order ("ISO") against Mr Calhoun ("the defendant") under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). 2. By way of interim and interlocutory relief, the plaintiff seeks: 1. An order pursuant to s 7(4) of the Act: 1. Appointing two qualified psychiatrists or two registered psychologists (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. 1. An order: 1. Pursuant to s 10A of the Act, that the defendant be subject to an ISO from 22 October 2024; 2. Pursuant to s 10C(1) of the Act, that the ISO be for a period of 28 days; and 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. 1. By way of final relief, the plaintiff seeks the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an Extended Supervision Order ("ESO") for a period of 12 months from the date of the order; and 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 Schedule to the summons. 1. By way of ancillary relief, the plaintiff seeks an order 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 of access. 2. Finally, the summons sought by way of ancillary relief, that an order be made pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the defendant be identified in relation to these proceedings by the pseudonym "Calhoun". 3. The matter came before me for hearing on 17 October 2024. Mr Calhoun is not represented by legal counsel. He appeared on the hearing of this application, representing himself. Given the nature of the proceedings and the technical issues involved in the threshold question, I expressed some concern about the absence of legal representation. The defendant does not have a grant of Legal Aid and, as I understand it, has been otherwise unsuccessful in privately funding legal representation. Having raised these matters with the defendant at the commencement of the proceedings, he was content to continue with the hearing. 4. The defendant opposes the granting of an ISO and some of the proposed conditions, in the event that the ISO is granted. 5. The defendant is presently on parole for a drug supply offence. His sentence is due to expire on 22 October 2024. This sentence is partly cumulative with the sentence for the index offence that is said to enliven the Court's jurisdiction. 6. There are three issues for consideration. 7. 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 is a "serious violence offence" as defined in s 5A of the Act. 8. Secondly, if the defendant is a "supervised offender", is the Court satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO? 9. Thirdly, if the Court is minded to make an ISO, are the proposed conditions appropriate?

Pseudonym order 1. As a preliminary matter, the plaintiff seeks a pseudonym order in respect of the defendant's name pursuant to s 7 of the Court Suppression and Non-publication Orders Act. In effect, the application is for an extension of an existing pseudonym order. The defendant did not oppose the extension of the order. I was satisfied that it is "necessary to prevent prejudice to the proper administration of justice" that an order for a pseudonym be made and I made such an order on 17 October 2024.

Factual background and relevant criminal history 1. The plaintiff's Draft Statement of Agreed Facts was provided to the defendant. The defendant was taken through that document during the hearing. He agreed with the contents of the document. The document was tendered and marked Exhibit A. Some of the factual background is taken from the Draft Statement of Agreed Facts. 2. The defendant described his upbringing to a psychologist in 2009 as "increasingly difficult". He is the sixth of nine children. His father was arrested and jailed for over three years when he was six years old. His mother experienced significant difficulty raising nine children on her own. The family suffered financial difficulties after his father's incarceration and the defendant began stealing. The defendant reported a negative adjustment to his education acknowledging behavioural issues which led to his expulsion midway through year 10. 3. The defendant was made to leave the family home at the age of 15 or 16, due to his behaviour. He initially lived with friends, then a sister, before securing his own apartment. The defendant first appeared before the Children's Court at the age of 16. Thereafter he amassed a considerable criminal history. 4. The relevant criminal history is as follows.

June 2002 firearms offences 1. On 27 June 2002, the defendant was involved in the armed robbery of a service station with three co-offenders. The defendant or one of his co-offenders was armed with a firearm, which was aimed at the head of the shop attendant and later pressed to the back of the shop attendant. The defendant pleaded guilty to robbery armed with a dangerous weapon and the sale of a firearm. 2. A Form 1, dealing with a break, enter and steal (in company) which involved the taking of mobile phones from a shop and a further robbery whilst armed with a dangerous weapon, was taken into account on sentence. In that latter robbery (involving one co-offender), a sawn-off firearm was discharged during the offence. 3. On 2 July 2004, Freeman DCJ sentenced the defendant in relation to the count of robbery with a dangerous weapon (taking into account the matters on the Form 1) to an overall sentence of 6 years and 9 months commencing on 28 June 2002 with a non-parole period of 4 years. In relation to the sale of a firearm, the defendant was sentenced to 5 years imprisonment commencing on 2 July 2005 with a non-parole period of 2 years.

September 2007 firearms offences 1. On 10 September 2007, the defendant was involved in a robbery of an Armaguard van in the company of two co-offenders. One of the co-offenders brandished a shotgun and a second co-offender was holding what appeared to be a pistol. Shots were discharged during the robbery, and one of the guards was hit to the side of the face. He was treated in hospital for minor injuries. $72,241 was also stolen. The defendant had been on parole for just over two months at the time of this offending. 2. On 17 June 2009, Ellis DCJ sentenced the defendant to 6 years and 6 months imprisonment consisting of a non-parole period of 3 years and 3 months for the offence of robbery while armed with a dangerous weapon. One count of larceny of a motor vehicle and one count of use mobile phone in a corrective services facility was taken into account on a Form 1. His Honour found that the defendant had a lesser role in the robbery as the getaway driver.

October 2013 drug supply offences 1. Police executed a search warrant at the defendant's home on 9 October 2013. 636 tablets containing approximately 191 grams of a prohibited drug were located. The defendant pleaded guilty to supply a commercial quantity of a prohibited drug. On 19 May 2017, I sentenced the defendant to 4 years and 6 months imprisonment consisting of a non-parole period of 2 years. The sentence was partially cumulative on the previous sentence and is due to expire on 22 October 2024. The defendant was released to parole in relation to the following drug supply offence on 22 April 2022.

May and June 2013 offences 1. On 12 November 2015, the defendant appeared before me in the District Court, and I sentenced him to an aggregate sentence of 9 years imprisonment for the following offences: 1. Discharge firearm with intent to cause grievous bodily harm, contrary to s 33A of the Crimes Act 1900 (NSW) ("the index offence"). 2. Aggravated detain for advantage contrary to s 86(3) of the Crimes Act. 3. Assault with intent to rob, whilst armed with an offensive weapon and causing grievous bodily harm contrary to s 98 of the Crimes Act. 1. The first two offences took place during the "Smithfield incident". The third offence took place during the "Rydalmere incident". Further offences were taken into account on a Form 1. 2. The facts of the Smithfield incident were that at some point prior to 23 June 2013 the defendant wanted to purchase a gun and was put in contact with the victim. The victim attended the defendant's home and collected $5500. The agreement was that the victim would use the money to buy a firearm and would return shortly afterwards. 3. As the day went on, the defendant became increasingly convinced that the victim had reneged on the deal. He rang the victim at 8:00am and accused him of ripping him off. The defendant began speaking to others to organise retribution against the victim. 4. The victim was shot in his thigh and sustained injuries, including a broken femur. The victim was pushed into his own car and abducted by the offenders. The defendant took $2000 from the victim and told him that he would be shot in the other leg if the balance of the funds was not returned. The victim was dropped off at Auburn Hospital at 10:08pm. The victim's vehicle was set on fire and destroyed shortly afterwards. 5. The defendant was sentenced as the "principal" offender in the criminal activity. 6. The facts of the Rydalmere incident were that in the early hours of 1 May 2013 the victim, who was 53 years of age, left the Arrows nightclub in Rydalmere and walked to the carpark. He found his vehicle blocked by a stolen Hiace van. He returned to the club to seek assistance. 7. When he returned to his car, he was attacked by two masked men. One began firing a gun at him. Seven shots were discharged. Four struck the victim (one in the ankle and three in the torso) and the victim was shoved and kicked as he tried to crawl away. The victim's car was ransacked, and he suffered life threatening injuries, including a ruptured kidney, lacerated liver, sphincter injury and fractured fibula. 8. The offenders fled in another stolen vehicle, a Nissan Pulsar. The day before the shooting the defendant had conducted surveillance with another offender. The defendant's DNA was found on the vehicle's ignition wiring, and audio from a camera in the Hiace recorded another co-offender using his name. 9. The defendant was sentenced on the basis that it could not be proved that he was the shooter, nor was I satisfied that he was not the shooter. He was sentenced on the basis that he had knowledge of the firearm and had contemplated its possible discharge during the robbery.

The Index Offence 1. The index offence that is said to enliven the Court's jurisdiction to make an ESO is the offence of discharge firearm with intent to cause grievous bodily harm ("the Smithfield offence"), contrary to s 33A of the Crimes Act. 2. Section 33A provides: 33A Discharging firearm etc with intent (1) Intent to cause grievous bodily harm A person who-- (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to cause grievous bodily harm to any person is guilty of an offence. Maximum penalty--Imprisonment for 25 years. (2) Intent to resist arrest etc A person who-- (a) discharges any firearm or other loaded arms, or (b) attempts to discharge any firearm or other loaded arms, with intent to resist or prevent his or her (or another person's) lawful arrest or detention is guilty of an offence. Maximum penalty--Imprisonment for 25 years. 1. The elements of an offence contrary to s 33A are: 1. engaging in conduct (discharging or attempting to discharge a firearm) in an attempt to cause grievous bodily harm; and 2. engaging in that conduct with the intention of causing grievous bodily harm. 1. The facts relating to the index offence are set out above at [26]-[29].

Is the index offence a "serious violence offence"? 1. The definition of a "serious violence offence" is contained in ss 5A(1), (2) and (2A) of the Act, which provide: 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person— (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to— (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. 1. In the State of New South Wales v Dennis [2024] NSWSC 388 ("Dennis") at [159] I set out some of the principles relevant to a consideration of whether an index offence is a "serious violence offence". No challenge is made to the principles set out in that judgment. The approach requires an assessment solely of the elements of the offence. It does not require the Court to look behind the elements of the offence to the evidence or circumstances of the offending. That approach facilitates the protective purpose of the Act and ensures that equivalent offences are treated consistently, provided they include the requisite elements, irrespective of how the elements of the relevant events are expressed. 2. The index offence does not fall within s 5A(1)(a) of the Act. It is not an offence that involved conduct that caused death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person. So much is accepted by the plaintiff. 3. The question arises as to whether the index offence is a "serious violence offence" by virtue of s 5A(1)(b). There is no authority on this point. During the course of the hearing, the plaintiff referred to the State of New South Wales v Windle (No 6) (Final) [2020] NSWSC 753, a decision of Hoeben CJ at CL (as his Honour then was). The index offence in that case was an offence contrary to s 29 of the Crimes Act, namely attempted suffocation, or strangulation with intent to commit murder. The only relevance of that decision to the present case is that his Honour held that the index offence was "of the same kind as that in s 5A(1)(a) of the CHRO Act for the purpose of the definition of "serious violence offence". 4. The plaintiff submitted that focusing solely on the elements of the index offence, those elements necessarily comprehend somebody engaging in conduct that is an attempt to cause grievous bodily harm while having the intention of causing grievous bodily harm, conduct which is specifically referred to in s 5A(1)(a) of the Act. 5. I was not assisted by submissions on this point from the defendant. These issues are technical legal issues that I would not have expected the defendant to engage with. I repeat however that the defendant was content to proceed with the hearing. During the hearing, the defendant acknowledged that the index offence involved serious offending. I do not treat that acknowledgement as a concession that the index offence is a "serious violence offence". 6. Having conducted my own analysis of the relevant legislation, and mindful that I have not received submissions which challenge the plaintiff's suggested approach, I am satisfied that the index offence falls within the definition of a "serious violence offence". Having regard solely to the elements of the index offence, I am satisfied that s 33A "necessarily comprehends" all of the elements of an attempt to commit an offence against s 33(1)(b): Lynn v State of New South Wales [2019] NSWCA 300 at [27]. This approach to s 5A(1)(b) is consistent with previous cases of this Court which were recently restated in the decision of Dennis at [159]: "The analysis of the previous cases supports the following conclusions: (a) In determining what is and is not a "serious violence offence" the focus is on the elements of the offence which is said to constitute a serious violence offence: Lynn (CA, 2019) at [22]. (b) Except in some "limited circumstances" a court cannot look to the evidence or circumstances of the offending, for the purposes of determining whether an offence is a "serious violence offence": Decision Restricted at [62]. (c) The "limited circumstances" in which a Court can go behind the elements of an offence and look to the evidence, are cases where the defendant has raised a partial defence (which has resulted in a conviction for an offence that may not explicitly include elements of intention or recklessness) but reveals that the pathway to conviction must have comprehended elements of intention and/or recklessness; or where the elements of the offence are "opaque": Decision Restricted at [62]; Evers at [34]. (d) There are good policy reasons for restricting the scope of "serious violence offence" to offences where elements expressly meet the legislative definition of s 5A(1) (or in the "limited circumstances" identified at [159(c)]). Any supervision order imposed upon an individual is onerous and has the effect of significantly curtailing an individual's liberty and intruding upon an individual's privacy. (e) There have been numerous amendments to the Act, and ample opportunity to amend the Act to include specific offences. If Parliament's intention was to extend the scope of "serious violence offence", such an intention would have been expressly provided for. Indeed, Parliament has acted to expand the category of offences by specifically including constructive murder, manslaughter (by an unlawful and dangerous act), and wounding with intent to cause death or grievous bodily harm. (f) To accept the plaintiff's contention that a court can and ought consider the evidence and/or circumstances of the offending to determine whether the offence is a "serious violence offence" would result in requiring a court to hold a further inquiry as to whether and to what extent the constituent elements of the offence were satisfied, or, conversely, whether the evidence establishes a state of mind that is not an element of the index offence. Such an inquiry would involve a considerable increase in the time and resources dedicated to the hearing of these applications. That is not a desirable outcome." 1. Therefore, I am satisfied in the circumstances of this case that the index offence is a "serious violence offence" under s 5A(1)(b).

Is the Court satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO? 1. The Court's power to make an ESO is discretionary. Sections 9(2) and (3) of the Act provide for several mandatory considerations to which the Court must have regard to in determining whether or not to make an ESO as follows: 9 Determination of application for extended supervision order … (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. … (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant— (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. …

Should the preliminary orders be made? 1. The defendant is an "offender" for the purpose of s 4A of the Act. He is over 18 years of age (s 4A(a)) and has served a sentence of full-time imprisonment for a "serious violence offence" (s 5A(1)(b)). The defendant is a "supervised offender" under s 5I(2). The defendant is presently on parole for a drug related offence. His sentence is due to expire on 22 October 2024. This sentence was imposed partly cumulatively with the sentence for the index offence. 2. The approach to be taken by the Court in determining whether an ESO should be made has been set out in numerous authorities: State of New South Wales v McGorm (Final) [2019] NSWSC 484 at [189]–[204]; State of New South Wales v HT (Preliminary) ("HT") [2023] NSWSC 249 at [23]; State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]–[39]; State of New South Wales v French (Final) [2017] NSWSC 1475 at [43]–[54]. 3. The determination of whether an offender poses an unacceptable risk of committing a "serious offence" (as defined in s 4 of the Act) if not kept under supervision may require a consideration of various factors and may entail a balancing of factors. For example, where there is a low risk of recidivism but consequences are likely to be drastic if the risk eventuates: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]; HT at [23]; State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]–[128]; State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]; State of New South Wales v Pacey [2015] NSWSC 1983 at [43]; State of New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 at [29]. 4. The wording of "high degree of probability" in s 5B(d) of the Act indicates something "beyond more probable than not". The risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. There must be "a firm foundation, rather than a merely reasonable basis, for the conclusion that the risk posed by the offender is unacceptable absent supervision. Reasonable satisfaction is of itself insufficient": State of New South Wales v Holschier (No 3) [2019] NSWSC 341 at [56]–[57]. 5. The task of the Court at a preliminary hearing is similar to the prima facie case test and is one which is "not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing": Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. At the preliminary hearing, the application "proceeds on the assumption that the matters would be proved and without regard to any evidence that the defendant may call": State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 at [16]. 6. I turn to consider the unacceptable risk test pursuant to s 5B(d) of the Act. I must undertake a forward looking, evaluative exercise, proceeding on the assumption that the asserted facts are proved, to determine whether the plaintiff has discharged its burden of establishing to a high degree of probability that the defendant poses an unacceptable risk of committing a "serious offence".

Section 9 Relevant Considerations 1. Section 9 of the Act requires that consideration be given to various matters.

The reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s 9(3)(b) 1. This consideration is not engaged at a preliminary hearing.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment: s 9(3)(c) 1. The Risk Assessment Report ("RAR") dated 31 May 2024, was prepared by Dr Richard Parker, who interviewed the defendant on 28 May 2024. Dr Parker described the defendant as both "polite and cooperative with the interview". 2. In the Executive Summary to the RAR, Dr Parker describes the defendant as a man "who was raised in a family where criminality was common". He observed that "his serious violence has all been committed for financial purposes, within the context of a criminal lifestyle". 3. After the defendant's release from prison in April 2022 he commenced working for his wife's business. The defendant indicated that his involvement in this business, and his current location in Sydney, has assisted him in avoiding antisocial associates. 4. Dr Parker challenged the defendant in relation to his desire to employ his nephews and his brother, who have criminal histories. The defendant identified that he "wished someone had sat him down 20 years ago and explained how his life would turn out if he made certain choices, and he wants to give them that opportunity". 5. The defendant "expressed great satisfaction with his current lifestyle and pride in the success he has had in business." The defendant noted that this was the longest period he has lasted out of custody. Recent Offender Integrated Management System ("OIMS") notes are consistent with the defendant continuing to have a stable relationship with his present partner and continuing to conduct his business activities. 6. There is no evidence that the defendant has abused substances since a psychological report was prepared in 2009 by Dr Emma Collins. Indeed, before me it appears that the defendant has not used prohibited drugs since 2002. Dr Parker also noted that there are no records of the defendant experiencing any psychotic disorder, and that he denied having experienced mental illness. 7. Dr Parker identified the following criminogenic needs to be most relevant for the defendant: 1. Antisocial associates: Dr Parker observed that many of the defendant's offences have been committed in company. The defendant reported to Dr Parker that his antisocial associates were the "single most important factor" behind his serious offending. 2. Self-regulation/impulsivity: Dr Parker identified that while the defendant may wish to reform from crime and violence, "at times of heightened emotions and/or difficulties, automatic thought patterns may override this pre-existing plan". 3. Antisocial attitudes: Dr Parker identified that the key relevant antisocial attitudes for the defendant are the "normalisation of violence" and the idea of "beat or be beaten". He observed that the defendant does "not appear to engage in violence for violence's sake but appears to regard it as an (acceptable) means to an end". Dr Parker identified that the defendant's use of violence is likely to be connected to a criminal lifestyle. Similarly, he described most of the defendant's violence as being "instrumental in nature, to obtain money he believes he must have". At present, Dr Parker identified that the defendant was meeting his desire for material success through legitimate means (his business). 4. Cooperation with supervision: Dr Parker identified that the defendant has generally complied with supervision but "this has often been accompanied by a quick return to offending, suggesting that his interactions with Community Corrections have been superficial, rather than meaningful." 1. Dr Parker further opined: "70. The primary drivers of his offending appear to be his antisocial attitudes, antisocial personality pattern, and antisocial associates (Andrews & Bonta, 2010). Within this context, his violence appears to have been mostly instrumental – what is 'necessary' to obtain what he wanted, rather than expressive violence. 71. He has, on several occasions, appeared to have lived in the community without resorting to crime, for a period, but quickly relapsed into serious criminal behaviour. His last offence, was more reactive than planned, and involved only threats of violence, rather than actual violence. More importantly, the period, since that offence, marks the longest he has been in the community without being arrested for further offending – albeit a relatively short period by most measures. 72. Within this context, he is married and has custody of his two children, and has built a successful niche within his wife's business. Consequently, he has more to lose by reoffending than at any previous time of his life. He reports satisfaction with his current life and a determination to avoid a return to his old ways. Time will tell if he is able to achieve this. 73. He scores high on static risk factors for violence – a reflection of his unenviable history, but in the average range on an instrument dominated by dynamic risk factors. This reflects the stability (albeit fairly recent) of his current lifestyle, compared to his history. If he can maintain this lifestyle over a longer period, his risk rating would, no doubt, reduce." 1. In relation to risk scenarios, Dr Parker identified that the risk of future violence from the defendant is "almost inextricably linked to his desistance from/return to further criminal activity". Dr Parker went on to say: "…If he can refrain from criminal activity, then his risk of serious violence will be fairly low. This is underpinned by a stable marriage and a financial rewarding work life. These factors are linked by the reality that he is working for his wife's business – a breakdown in the marriage would likely lead to a loss of work, causing financial strain. If such a breakdown were to occur, [the defendant] may relocate to his old neighbourhood, where he would undoubtably come across old associates. Such interactions, combined with financial stress, may incite him to search for 'easy money', with the strong likelihood of serious violence."

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence: s 9(3)(d) 1. The defendant was assessed using the Violence Risk Scale ("VRS") assessment tool, which places him in the category of Risk Level III (average risk). Dr Parker also administered the Violence Risk Appraisal Guide – Revised ("VRAG-R") to the defendant. The defendant's score was equal to, or higher than, the score of 93% of the construction sample, and places him in the ninth of nine "bins". 76% of violent offenders with a similar score reoffended violently within five years, and 87% within twelve years.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1) 1. A Risk Management Report ("RMR") has been prepared by Jason Saad of the Metropolitan Extended Supervision Order Team, dated 19 June 2024. The RMR identifies the following priorities in relation to the defendant's supervision: "The primary focus of [the defendant's] community supervision will be to ensure he is engaged in offence specific intervention, primarily facilitated through the VOTP Maintenance Program, and that his associations in the community are closely monitored. [The defendant's] supervision plan will continue to focus on ensuring he is seeking out a pro-social lifestyle, and that he is engaging in activities and associating with people who will continue to assist in his community reintegration in a positive manner." 1. The RMR confirms that if the defendant becomes subject to an ESO, he will be seen by a Community Corrections Officer on a weekly basis. Further third-party contact will also include contact with his allocated psychologist and contact with the ESO Investigations Team ("ESOIT") attached to the New South Wales Police Force.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs: s 9(3)(e) 1. The defendant completed the Violent Offenders Therapeutic Program ("VOTP") between 5 January 2011 and 6 June 2011. The VOTP Discharge Report identified that the defendant "displayed conscientiousness and diligence while participating in the programme and he made a number of treatment gains. He made a concerted effort in identifying and acknowledging violent and offence supportive cognitions, in addition to developing appropriate countering challenges". 2. However, the defendant's completion of the VOTP occurred before the Smithfield and Rydalmere offences were committed. As such, while the defendant's participation in rehabilitation programs might ordinarily suggest a diminished risk, in the present case, it did not prevent the defendant from returning to a pattern of violent behaviour. 3. The defendant has, however, subsequently engaged consistently with a psychologist allocated through the VOTP. He continues to engage with the Violent Offenders Maintenance Program. In April 2019, the defendant completed the EQUIPS Aggression Program and in July 2020 he completed the EQUIPS Foundation program.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1) 1. Dr Parker identified in the RAR that an ESO would mean that the defendant would receive "intensive supervision and case management". Dr Parker opined that the conditions sought as part of the ESO would be targeted to reduce the likelihood of the defendant re-offending by assisting in consolidating the pro-social developments in the defendant's life. If an ESO is not imposed, this would mean that the defendant will be unsupervised in the community, as his parole expires on 22 October 2024.

Compliance with obligations, including while on parole: ss 9(3)(e2), (f) and (g) 1. The defendant's compliance with obligations historically has been very poor. His parole has been revoked, following breaches of the conditions of his parole on 11 October 2007, 11 September 2008 (a review of the revocation determined the revocation should stand), 13 September 2012, 11 October 2013, and 6 July 2022 (though the revocation of parole in July 2022 was rescinded on 27 January 2023). 2. A Breach of Parole Report dated 23 June 2022 revealed that the defendant "engaged well" during supervision but reoffended after only two months in the community. Dr Parker expressed the view that "[t]his echoes his pattern during previous periods of supervision, where he has maintained attendance and not resisted supervision, but reoffended, nevertheless". However, Dr Parker went on to observe that since his most recent release to parole he has been in the community without incident for (at the time of 2024 RAR) one year and four months. That is the longest period he has been in the community since he was 18 years old. 3. The defendant has now been in the community for 20 months without reoffending. He is involved in a supportive relationship and is gainfully employed.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h) 1. The defendant has a long history of violent offending, commencing as a juvenile which has been set out above. He has been involved in several robberies which have involved the presence or discharge of firearms. The victim of the Smithfield offence was shot in the thigh and suffered serious injuries. The victim of the Rydalmere offence also suffered life threatening injuries. He was shot four times and shoved and kicked as he tried to crawl away. 2. The defendant's risk of offending is diminished when he is gainfully employed, not engaging with antisocial associates and is financially secure. The defendant has not abused prohibited drugs since 2002 and last associated with antisocial criminal associates in 2013.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1) 1. On 12 November 2015, I sentenced the defendant in relation to the index offence, where I said: "Where a firearm is used to inflict grievous bodily harm the sentence imposed should involve a substantial component to reflect general deterrence… The courts must give a clear message to persons who are minded to use firearms to resolve disputes that they will be dealt with severely… An offence that involves pointing a loaded firearm at anyone is particularly serious when done in circumstances of aggression or as an exercise of domination… This offence was committed in company and in a public place where members of the public might be expected to be present. I am satisfied that the offender was the principal in this criminal activity. He organised his associates to lure the victim to the location where he would be intimidated, assaulted and shot. The offender's motivation was to teach the victim a lesson for what he perceived to be a "rip off" by the victim. I am satisfied that this offence also falls above the middle of the range of objective seriousness. Both incidents call for significant weight to be given to general and specific deterrence and denunciation. A clear message needs to be conveyed that the courts will not tolerate serious violence involving the use of firearms. It behoves the court to discourage any tendency for firearms to become tools of the trade for those whose activities are outside the law. Considerations of general deterrence and retribution require that any sentence for such violent conduct involving firearms require a substantial sentence to be imposed."

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i) 1. The defendant's behaviour in custody included 12 institutional charges between October 2013 and July 2021. These include charges of possession of contraband, an assault in 2015 and one of which involved intimidation in 2018. It cannot be established that any of those charges were related to the use of prohibited drugs. OIMS notes reveal that the defendant was generally polite to staff and his misconduct was directed to other inmates.

Determination 1. I have had regard to the various matters set out above. In resisting the order, the defendant pointed to the fact that he has been subject to parole and has not reoffended since June 2022. The defendant submitted that he is in a committed relationship with his wife and is supported by her and various family members. The defendant is also gainfully employed. 2. The defendant has a history of violent offending and non-compliance with supervision. Notwithstanding the progress that the defendant has made in the community in the past 20 months, at this preliminary stage, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the Court's satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing another "serious offence" if not kept under supervision under the order.

Appropriate Conditions 1. Section 11(1) of the Act provides that an ISO/ESO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". Section 11(2) provides a mandatory condition that the defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services. Regard must be had to the primary objects set out in s 3 of the Act. Important principles to be considered in relation to the imposition of conditions were set out by Hoeben CJ at CL (as his Honour then was) in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44]: "Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. (vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855. (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]. (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131])." 1. In the event that an interim order is made, the defendant agreed to the imposition of many of the conditions contained in a schedule of conditions proposed by the plaintiff. He opposed the imposition of other conditions. 2. I have determined that a number of the proposed conditions are unnecessary. While of the view that an order is appropriate, I am not of the view that conditions which are onerous and likely to interfere with the progress that the defendant is making in the community, should attach to the order. Having regard to the progress made by the defendant over the past 20 months and the motivation demonstrated by him to continue on the path of rehabilitation, care should be taken to impose conditions that minimise the risk of derailing his progress. 3. I turn then to the particular conditions proposed in the schedule to the plaintiff's summons.

Part A: Reporting and Monitoring Obligations 1. The defendant agrees with the imposition of Conditions 1-3 with some amendment to the wording of Condition 1. I am of the view that those conditions are appropriate with some amendment to Condition 1. I am also of the view that Condition 4 is appropriate because it involves the sharing of information between those who supervise the defendant's rehabilitation which is necessary for the proper coordination of the supervision. 2. Condition 5, which proposes electronic monitoring, is agreed to by the defendant in an amended form. I am satisfied that in its amended form, the condition is appropriate, bearing in mind that a Departmental Supervising Officer ("DSO") cannot direct electronic monitoring unless the defendant has been charged with an offence of breaching an ESO or an indictable offence. 3. Conditions 6-8 are not appropriate or necessary. The requirement that the defendant provide a schedule of movements, (even if only in circumstances where he is charged with an offence of breaching an ESO or an indictable offence), is extremely onerous. He is working as a plumber. I am prepared to accept that such work may involve unscheduled or unrostered callouts. This is an example of striking a balance between the supervision of the defendant on the one hand and conditions not being unjustifiably onerous or punitive.

Part B: Accommodation 1. Conditions 9, 11 and 12 are in my view appropriate. The defendant agrees to the imposition of Conditions 9 and 11. I am satisfied that Condition 12 is also appropriate and is not onerous. If the defendant wants to travel within New South Wales to visit family members, it is unlikely that a DSO would disapprove.

Part C: Place and Travel Restrictions 1. The defendant agrees to the imposition of Conditions 14-16. Condition 15 is a mandatory condition under the Act and will be imposed. I am also satisfied that Conditions 14 and 16 are appropriate.

Part D: Finance 1. The defendant agrees to the imposition of Condition 17. It is, in my view appropriate that there be some ability to monitor the defendant's financial affairs.

Part E: Drugs 1. Conditions 18 and 19 are not appropriate. There is no evidence that the defendant has consumed prohibited drugs since 2002. In those circumstances, a condition requiring him to submit to drug testing is not only unnecessary, but wholly intrusive.

Part F: Non-Association 1. Conditions 20-22 deal with the defendant's associations with others. Given his prior offending history and associations with people who have committed serious crimes, the conditions are appropriate. I note that the defendant agrees to the imposition of these conditions.

Part G: Weapons 1. Conditions 23 and 24 prohibit the possession of firearms and implements designed or adapted to inflict violence. Having regard to the defendant's association with firearms in the past and the use of weapons in the commission of his offences, the conditions are appropriate. Again, I note that the defendant consents to the imposition of these conditions.

Part H: Access to the internet and other electronic communication 1. Condition 25 is not appropriate. The material does not disclose a history of communication by electronic means with co-accused or associates involved in crime. I am of the view that such a condition is highly intrusive and unnecessary on the material before me.

Part I: Search and Seizure 1. Conditions 26 and 27 are not appropriate. The defendant is subject to a Weapons Prohibition Order authorising police to search his home. That order does not authorise the search of the defendant's home for items other than weapons. However, I am not of the view that a search power in excess of the power to search for firearms is warranted in this case. To impose these conditions would be highly intrusive and has the potential to create such stress and tension as to risk derailing the defendant's progress.

Part J: Personal Details and Appearance 1. Conditions 28-31 relate to measures that ensure that any change in the defendant's personal details or appearance are notified to a DSO. I am satisfied that those conditions are appropriate, and I note that the defendant consents to their imposition.

Part K: Intervention and Treatment 1. Condition 32 directs the defendant to participate in the Violent Offender Therapeutic Maintenance Program as directed by a DSO. The defendant agrees to the imposition of this condition. The condition is appropriate given the defendant's prior history of violent offending. The defendant has continued to engage in this program which is beneficial to him. 2. In my view, Conditions 33 and 34 are also appropriate. These conditions relate to the sharing of information between service providers involved in the defendant's supervision. The sharing of information between these individuals and agencies is important to ensure a coordinated approach to the defendant's rehabilitation.

Orders 1. Accordingly, I make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. I appoint two qualified psychiatrists or two registered psychologists (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. I direct the defendant attend those examinations. 1. Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order commencing on 22 October 2024. 2. Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days. 3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment. 4. I order 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 of access.

SCHEDULE OF CONDITIONS In these conditions: "Commissioner" means Commissioner for Corrective Services. "CSNSW" means Corrective Services New South Wales. "DSO" means Departmental Supervising Officer. "NSWPF" means New South Wales Police Force.

PART A: REPORTING AND MONITORING OBLIGATIONS 1. You must accept the supervision and guidance of a DSO. 2. Where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. 3. You must truthfully answer questions from a DSO, or any other person supervising you, about: 1. where you are or have been; 2. where you are going; 3. who you are with or have been with; 4. what you are doing or have been doing; and 5. the nature of your associations. 1. You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

ELECTRONIC MONITORING 1. If directed by a DSO, you must wear electronic monitoring equipment as directed and must not tamper with or remove the equipment. A DSO may not direct you to wear electronic monitoring equipment unless you have been charged with an offence of breaching an ESO or an indictable offence.

SCHEDULE OF MOVEMENTS 1. Condition not imposed. 2. Condition not imposed. 3. Condition not imposed.

PART B: ACCOMODATION 1. You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements. 2. Condition not imposed. 3. You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address. 4. You must not spend the night anywhere other than your approved address or any alternative approved addresses without the approval of a DSO. 5. Condition not imposed.

PART C: PLACE AND TRAVEL RESTRICTIONS 1. You must surrender any passports held by you to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. 2. You must not leave New South Wales without the approval of the Commissioner. 3. You must not go to any place specified by a DSO.

PART D: FINANCE 1. You must provide any information relating to your financial affairs, including income and expenditure, if directed by a DSO.

PART E: DRUGS 1. Condition not imposed. 2. Condition not imposed.

PART F: NON-ASSOCIATION 1. You must not associate with any person specified by a DSO. 2. Without limiting Condition 20, you must not without prior approval of a DSO associate with any person whom you know to be: 1. consuming or under the influence of illegal drugs; or 2. held in custody. 1. You must obtain written approval from a DSO prior to joining or affiliating with any club or organisation.

PART G: WEAPONS 1. You must not possess or use any of the following: 1. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996 (NSW); or 2. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 (NSW). 1. Without limiting or altering Condition 23, you must not possess or use any of the following, without a DSO's prior approval: 1. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; 2. any other implement made or adapted for use for causing injury to a person; or 3. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. NOTE: Condition 24 does not apply to knives for ordinary domestic use.

PART H: ACCESS TO THE INTERNET AND OTHER ELECTRONIC COMMUNICATION 1. Condition not imposed.

PART I: SEARCH AND SEIZURE 1. Condition not imposed. 2. Condition not imposed.

PART J: PERSONAL DETAILS AND APPEARANCE 1. You must not change your name from [redacted] or use any other name without notifying a DSO. 2. You must not significantly change your appearance without the approval of a DSO. 3. You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance. 4. If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details.

PART K: INTERVENTION AND TREATMENT 1. You must participate in the Violent Offender Therapeutic Program Maintenance program as directed by a DSO. 2. You must agree to your Violent Offender Therapeutic Program Maintenance program treatment and service providers sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO. 3. You must agree to any information obtained under Condition 33 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2024