Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Kennedy (Preliminary) [2023] NSWSC 691 Hearing dates: 5, 21 June 2023 Decision date: 22 June 2023 Jurisdiction: Common Law Before: Button J Decision: Interim supervision order imposed Catchwords: HIGH RISK OFFENDER – application for interim supervision order – Indigenous defendant – record of repeated violent offending – history of substance abuse – moderate intellectual disability – whether unacceptable risk of committing serious offence if not kept under supervision – defendant back in custody – bail refused – conditions of interim supervision order opposed – electronic monitoring not imposed – psychiatric and/or psychological examinations ordered – interim supervision order imposed Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Category: Principal judgment Parties: State of New South Wales (Plaintiff) Walker Kennedy (Defendant) Representation: Counsel: S McGee (Plaintiff) R El-Choufani (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/111958 Publication restriction: Nil JUDGMENT Introduction 1. Mr Walker Kennedy (the defendant) is a 31-year-old Aboriginal man who has spent most of his life in far western New South Wales. Tragically, his life has been one of chronic deprivation and physical and emotional hardship, aspects that have undoubtedly played a significant if not primary role in his intersections with the criminal justice system. 2. He was born in February 1992, raised by two alcoholic parents, and suffers from a moderate intellectual disability (the misnomer is well known). He was exposed to significant violence and substance abuse from a young age. By age 14, he was drinking alcohol and petrol sniffing. By 17, he had begun injecting prohibited drugs, most recently methylamphetamine. 3. As one might expect from the psychological damage suffered during those early years, the defendant has a lengthy criminal record. He first appeared before the Children's Court in 2006, when he was 13 years old. His sundry convictions for offences to do with property are not entirely irrelevant, but in the current context I give them little weight. However, he has been incarcerated repeatedly for acts of violence, accepting again that some of them are toward the less serious end of the objective spectrum. Over a period of quite some years, he has not been able to succeed in staying out of custody for more than a matter of months on each occasion before reoffending. 4. Most recently, he was incarcerated for a long period for significant violence committed against his stepfather, by way of the use of a baseball bat to the head of the victim. It is noteworthy that that violence was accompanied by a threat to the victim "to cut your fucking throat in your own house". Self-evidently, repeatedly hitting a human being to the head with a baseball bat with force can have catastrophic consequences; luckily, they were not realised in this case. 5. The defendant pleaded guilty to recklessly inflicting grievous bodily harm, and was sentenced by Judge McClintock SC to a head sentence of imprisonment for 3 years 6 months, with a non-parole period of 2 years 2 months, to commence on 25 December 2019. Judge McClintock emphasised the defendant's persistent record of violence, and expressed concern that he might engage in further acts of offending. 6. The defendant re-entered the community on 24 February 2023, not having been released to parole at the end of his non-parole period. The entirety of his sentence expires on 24 June 2023, a day or so away from today. 7. In fact, at the point on 5 June 2023 when I reserved my judgment pertaining to a preliminary application by the State of New South Wales (the plaintiff) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for mandatory examinations and the imposition of an interim supervision order (ISO) to follow the expiry of his parole, the defendant had achieved a great deal. He had been living in the community for many weeks, was applying what he had learnt in interventionist therapeutic programs that he had completed in custody, getting help from a number of sources, was abstaining from abusing alcohol (whilst not avoiding it entirely), and appeared overall to be making sound progress. The question was finely balanced in my mind whether the test for making an ISO had been established by the plaintiff. 8. Regrettably, events intervened that called for the matter being reopened and reconsidered by me on 21 June 2023. By that stage, the defendant sadly was back in custody, having pleaded guilty to a charge of common assault against a young woman with whom he has been in an intimate relationship for about four months. The basis of the admitted charge is that, whilst well intoxicated by alcohol on 14 June 2023, he punched the victim twice to the face, resulting in substantial pain and a bruise under her eye. 9. As at the reopening of the matter, the defendant was bail refused pending sentence on that charge. Records of Broken Hill Local Court placed before me show that alternatives to custody are being explored. 10. For reasons given at the second hearing, I rejected the submission of counsel for the defendant that my decision about the preliminary application should be deferred. In summary: because of the unpredictable contingencies of the criminal justice system, including the possibility of the defendant being granted bail on his pending matter, I believe it is incumbent upon me to determine the application of the plaintiff before his parole period expires completely, even if it is distinctly possible that he will remain in custody on that day. 11. On the other hand, I respectfully agree with counsel for the defendant that this undoubtedly backward step does not set at naught the progress that has been made by the defendant, both in custody and outside of it. He deserves credit for that, and I hope that his reincarceration will not cause him to regress further. 12. I also think that the defendant is to be commended for his maturity in promptly accepting responsibility for what he had done, by way of his recent plea of guilty. 13. Finally, I appreciate the point that only one of the previous convictions for violence of the defendant is "a serious violence offence" as defined by the Act, and indeed I appreciate that this latest conviction does not fall within that statutory definition either. 14. But I respectfully disagree with the proposition of counsel that this latest development need not necessarily play a substantial role in my determination as to whether the test for the imposition of an ISO has been established, in accordance with the foundational test contained in the Act. 15. In my opinion, the fact that the defendant, only a few days short of the expiry of his parole period, and whilst I was reserved with regard to whether his liberty should be further curtailed, committed yet again an act of violence against another person whilst he was intoxicated by alcohol is very significant. 16. It establishes, I think, that the defendant is a person who continues to need help to succeed whilst living in the community – albeit underpinned by compulsion by way of possible reincarceration for breach – by way of conditional liberty in the form of an ISO. To express that thought in accordance with statute, on all the evidence placed before me, I am well satisfied that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to such an order. 17. As I remarked at the second hearing, that does not necessarily mean that an extended supervision order (ESO) will be called for. Much may change between now and the pursuit by the plaintiff of that second stage, not least a non-custodial sentencing option of which I have been informed, and that I consider may be very helpful. 18. But as things stand, I believe that it is soundly appropriate for me to impose an ISO, along with mandatory consultations by the defendant with experts. Recent events, to my mind, amply demonstrate the need for further curtailment of the liberty of the defendant, at least for a short time. 19. Finally, there was a very circumscribed dispute between the parties about conditions, as follows (I interpolate that I have reflected upon all conditions that were not opposed, and believe that they are appropriate). The plaintiff contended for electronic monitoring, a condition to which the defendant has not been subject whilst on parole. The point was made that this latest offence shows the need for close supervision of where the defendant is and, if possible, what he is doing. 20. I see the force in that. But my fear – expressed at the first hearing, and maintained – is that the wearing of an ankle bracelet will be seen by the defendant as yet another backward step being imposed upon him by the administration of justice, criminal and, in this case, civil. I think that such a step could do more harm than good. And I am not convinced of the desirability of it in any event, especially since the defendant spends his time in small regional towns. Electronic monitoring will not be imposed. 21. Separately, it was said by counsel for the defendant that a search power pertaining to digital materials was inappropriate. The point was made that the offending of the defendant is nothing to do with the Internet or any other aspect of digital life, and indeed the defendant is illiterate in any event. 22. So much is true, but in my opinion even very straightforward people live a great proportion of their lives online nowadays. I think that to impose a search power that does not include digital materials would very often simply be, in 2023, incomplete. 23. That portion of condition 35 will therefore be imposed. Orders 1. I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): a) appointing two qualified psychiatrists of psychologists (or any combination of such persons) to conduct separate psychiatric and/or psychological 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) directing the defendant to attend those examinations. 2. a) Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 24 June 2023 ("the interim supervision order"); b) pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and c) pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the attached Schedule. Kennedy - Agreed Conditions for ISO as at 21 June 2023 (163529, pdf) ********** 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 June 2023