State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076 Hearing dates: 22 July 2021 Date of orders: 26 August 2021 Decision date: 26 August 2021 Jurisdiction: Common Law Before: N Adams J Decision: (1) Pursuant to ss 41 and 42(1) of the Terrorism (High Risk Offenders) Act 2017 (NSW), I order that the defendant be subject to an interim detention order for a period of 28 days commencing from 9 September 2021. (2) Pursuant to s 49(1) of the Terrorism (High Risk Offenders) Act, I order that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to at Order 1 above. (3) Pursuant to s 38(5) of the Terrorism (High Risk Offenders) Act: (a) I appoint Dr Andrew Ellis, a qualified psychiatrist, and Dr Katie Seidler, a registered psychologist, to conduct separate psychiatric and psychological examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by 21 October 2021; and (b) I direct the defendant to attend those examinations. (4) Access to the court file in this proceeding shall not be granted to a non-party without the leave of a judge of the Court. 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. Catchwords: TERRORISM HIGH RISK OFFENDER – preliminary hearing – application for an interim detention order and the appointment of experts – whether test under s 41 satisfied – whether test under s 38(5) satisfied – whether orders would be futile due to other custody – where defendant is in custody in respect of NSW firearms offences and Commonwealth child pornography offences – where defendant stands to be sentenced for further NSW child pornography offences – actual release date unknown – "unacceptable risk" – where defendant has held neo-Nazi and white supremacist views since adolescence – where defendant capable of manufacturing firearms from widely available materials – construction of s 34(1)(a) – whether defendant required to be "eligible offender" at time of final orders – orders granted Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 Crimes Act 1900 (NSW), s 91H Crimes (High Risk Offenders) Act 2006 (NSW), ss 4A, 13B, 18A Criminal Code (Cth), Part 5.3, ss 474.19, 474.27, 474.27A Firearms Act 1996 (NSW), ss 7(1), 51D(2), 50A(1) Interpretation Act 1987 (NSW), s 34 Justice Legislation Amendment Act (No 2) 2018 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 4, 7, 10, 11, 12A, 20, 21, 26, 28, 33, 34, 35, 37, 38, 39, 41 Cases Cited: Cheema v State of NSW [2020] NSWCA 190 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 State of New South Wales v Dunn [2018] NSWSC 1008 State of New South Wales v Elmir (Final) [2019] NSWSC 1867 State of New South Wales v Elmir [2019] NSWSC 263 State of New South Wales v Lawrence (Preliminary) [2019] NSWSC 1101 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 Turner v State of New South Wales [2019] NSWCA 164 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2018 at 1731 New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 May 2018 at 266 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Michael Holt (Defendant) Representation: Counsel: P McGuire SC with J Harris (Plaintiff) T Anderson with J Wilcox (Defendant)