State of NSW v Howard (Preliminary) [2022] NSWSC 41

Supreme Court New South Wales

Medium Neutral Citation: State of NSW v Howard (Preliminary) [2022] NSWSC 41 Hearing dates: 31 January 2022 Decision date: 03 February 2022 Jurisdiction: Common Law Before: Button J Decision: See paragraph 45 Catchwords: HIGH RISK OFFENDER – application for mandatory psychiatric and psychological examinations and interim supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – not opposed by counsel for the defendant – long history of sexual offences – evidence of continuing sexual attraction to children – several breaches of existing extended supervision order leading to re-incarceration – mandatory examinations and interim supervision order imposed – circumscribed dispute about conditions – dispute resolved Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 7, 10A, 10C, 11 Cases Cited: State of New South Wales v Howard [2015] NSWSC 1193 State of New South Wales v Howard [2015] NSWSC 1811 Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Kevin Howard (Defendant) Representation: Counsel: L Gallagher (Plaintiff) D Bhutani (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid (Defendant) File Number(s): 2021/283698

Judgment 1. This is a preliminary application brought by the State of New South Wales (the plaintiff) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) pertaining to Mr Kevin Howard (the defendant). In a summons filed on 5 October 2021, the plaintiff ultimately seeks the imposition of an extended supervision order (ESO) of five years. At the preliminary stage, mandatory psychiatric and psychological examinations of the defendant are sought, along with an interim supervision order (ISO) of 28 days. (A further order to do with limitation upon access to the court file was made some time ago by another judge of this Court.) 2. The matter needs to be seen in the context of similar applications pursuant to the Act that commenced approaching seven years ago. Reference should be made to my judgment of 24 August 2015: State of New South Wales v Howard [2015] NSWSC 1193, and to the judgment of Hall J of 1 December 2015: State of New South Wales v Howard [2015] NSWSC 1811. In the former, I ordered mandatory examinations and imposed an ISO. In the latter, Hall J imposed an ESO of five years commencing on 2 December 2015, and expiring – if it had been uninterrupted – on 1 December 2020. In fact, the ESO to which the defendant is currently subject will expire on 3 February 2022, that being three days after the preliminary hearing. 3. That history gives rise to a number of aspects of my approach, all of them adopted with the concurrence of the parties. 4. First, despite my previous involvement with the defendant, I did not regard it necessary to recuse myself on the basis of actual or apprehended bias, or for any other reason. 5. Secondly, because no aspect of the two earlier judgments was called into question, and in order to avoid fruitless repetition, this judgment will not repeat all that has been said in them, except to a very small degree. Rather, it will focus upon events since December 2015. 6. Thirdly, because the dispute between the parties is in truth a very circumscribed one that relates only to a few conditions of the proposed ISO, and also because of the urgency of the matter, this judgment is concise.