Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Kreuzberg [2015] NSWSC 379 Hearing dates: 7 April 2015 Decision date: 08 April 2015 Jurisdiction: Common Law Before: Button J Decision: (1) An order pursuant to section 7(4) of Crimes (High Risk Offenders) Act 2006: (a) Appointing one qualified psychiatrist and one qualified psychologist 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) Directing that the defendant attend those examinations. (2) The matter is relisted before the Common Law Registrar at 9 am on Wednesday 15 April 2015 for further directions. Catchwords: CIVIL LAW – application for mandatory psychiatric examination pursuant to s 7(4) of Crimes (High Risk Offenders) Act 2006 – test arising from combined effect of s 5E and s 7(4) of the Act Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5A(1), 5E, 7(4), 9(3) Cases Cited: Attorney General for NSW v Hayter [2007] NSWSC 983 State of New South Wales v Lynn [2013] NSWSC 1147 State of New South Wales v Reay [2014] NSWSC 1362 Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Jason Kreuzberg (Defendant) Representation: Counsel: L Fernandez (Plaintiff) S Hall (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2015/68956 Publication restriction: Pseudonym used for the defendant Judgment Background 1. Mr Jason Kreuzberg ("the defendant") was born in August 1974, and accordingly is aged 40 years. He is an Aboriginal man who grew up in far western New South Wales. Regrettably, from the age of 11 years he commenced to commit criminal offences. In November 1990, when aged 16 years, he committed the offence of malicious wounding, and was made the subject of a control order. 2. In August 1992 in the Sydney suburb of Kingswood Park, he stabbed a man through the neck with a knife with sufficient force for the point of the knife to come to rest near the inside of the victim's nose. He was originally arraigned on a count of wounding with intent to murder. 3. In June 1993, whilst on bail for that offence, he murdered a man in the Newcastle suburb of Carrington by stabbing him repeatedly throughout the course of an evening. He was found guilty of the murder after a trial by jury. Thereafter, he pleaded guilty to the first stabbing, the Crown accepting a plea to the lesser offence of malicious wounding. He was sentenced for the murder by Wood J in the Supreme Court of New South Wales to a head sentence of imprisonment for 22 years with a non-parole period of 15 years. For the malicious wounding, his Honour imposed a wholly concurrent fixed term of imprisonment for 4 years 9 months. His Honour remarked "Viewed objectively, the circumstances in respect of which the prisoner now stands for sentence are about as serious as one could possibly imagine. He stands convicted of murder involving the use of a knife, that offence occurring at a time when he was already facing trial and on bail for a malicious wounding involving the use of a knife. It is plain beyond question that that is a circumstance of grave concern." 4. On 22 January 2002, after he had been in custody serving his non-parole period for many years, the defendant requested to have a visit with his cousin, who had very recently come into custody. Although the cousin was on strict protection, the prison authorities agreed to the request of the defendant. They met in the company of a prison officer. The defendant immediately produced a wooden shiv that he had either spent quite some time carving, or that he had sourced from another prisoner. He stabbed his cousin to the chest, puncturing his lung. The offence was unquestionably premeditated. 5. The defendant was charged with malicious wounding yet again. He pleaded guilty to that offence. On 28 February 2013 in the District Court at Wollongong, J B Phelan DCJ sentenced him to a head sentence of imprisonment of 2 years 8 months with a non-parole period of 2 years. The sentence was dated in such a way as to extend the pre-existing non-parole period of the defendant by two years. The result was that the defendant was thereafter serving a head sentence of imprisonment for 22 years with a total non-parole period of 17 years. 6. That total non-parole period expired many years ago, on 14 June 2008. The defendant has been consistently refused parole. The head sentence will expire absolutely on 14 June 2015. 7. The custodial history of the defendant shows that he came into custody for the last time on 15 June 1993. He has been in custody continuously since that time; that is, for a period of well over 21 years. He has never had the benefit of day release during that period, due to his inmate classification. One is entitled to infer that he is thoroughly institutionalised. 8. Whilst in custody over the years, he has committed many offences against prison discipline. Those offences include the infliction or threatened infliction of violence upon others. The victims have been both prisoners and prison officers. The defendant has been placed in segregation on many occasions. Having said that, there is force in the submission of his counsel, Ms Hall, that, except for the attack upon his cousin, only two of the acts of the defendant in custody have been deemed serious enough to be placed before a court, they being an assault upon a prison officer and an act of malicious damage. There is also force in the submission that, in recent times, his behaviour in custody has improved. 9. To his credit, the defendant has sought help in recent years within the prison system. He has engaged in a number of courses and programs designed to help him change his thoughts, emotions, and behaviour. Most importantly, he has engaged in the Violent Offenders Therapeutic Programme ("VOTP"), although it was not followed up to completion. It cannot be said, however, that those programs have been a complete success. The most pessimistic view of experts who have assessed the defendant is that, despite taking part in those programs, the defendant lacks any insight or willingness to change. The most optimistic view is that the defendant has reached a stage where he has begun to engage in constructive reflection on the past and the future. 10. To complete my very brief précis of the evidence that was placed before me, the defendant was recently assessed as being at a high risk of the commission of an offence of violence, when compared to other violent offenders in his position. The proceedings 1. It is in that context that the Attorney General of New South Wales ("the plaintiff") filed a summons in this Court on 6 March 2015. Many of the orders sought in that document were not pressed at the preliminary hearing that was conducted before me yesterday. The plaintiff merely sought the appointment of two qualified psychiatrists to assess the defendant, along with an order directing him to attend upon them. A foreshadowed application for an interim supervision order ("ISO") was not pressed, on the basis that any final orders should be able to be made before the sentence of the defendant fully expires. The submissions of the parties 1. Counsel for the plaintiff made it clear at the preliminary hearing before me that, unless something changes markedly, at any final hearing the plaintiff will seek only an extended supervision order ("ESO"), not a continuing detention order ("CDO"). 2. He also submitted that the statutory requirements for the making of the orders sought under s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act") had been made out. That submission was developed as follows. 3. First, the defendant has been convicted of murder, a "serious violence offence" as defined in s 5A(1) of the Act. 4. Secondly, the defendant is a "serious violent offender" as defined in s 4 of the Act, because of his conviction for murder and the fact that he is aged over 18 years. 5. Thirdly, s 5E of the Act is as follows: 5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence. 1. Fourthly, s 7(4) of the Act is as follows: 7 Pre-trial procedures (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. … 1. Counsel for the plaintiff submitted that, properly understood, the combined test in s 5E and s 7(4) of the Act that I am required to apply at this first stage is whether, on the evidence placed before me by the plaintiff at the preliminary hearing, a prima facie case has been made out for the making of an ESO at any final hearing: see Attorney General for NSW v Hayter [2007] NSWSC 983 at [6]; State of New South Wales v Reay [2014] NSWSC 1362 at [29]. 2. He emphasised that the definition of a "serious violence offence" contained in s 5A of the Act is a surprisingly broad one, and relied upon my analysis of that breadth in State of New South Wales v Lynn [2013] NSWSC 1147 at [8]. 3. In short, he submitted that the statutory pre-conditions had been fulfilled, and that the two orders sought should be made. 4. Counsel for the defendant did not dispute that the statutory pre-conditions founded on the index offence and the age of the defendant had been made out. Nor did she cavil with the formulation of the applicable test, including the breadth of the definition of a "serious violence offence" that informs it. 5. Counsel explained that her client did not consent to the appointment of the two psychiatrists and the mandatory psychiatric examinations. Having said that, as a matter of law she did not seek to dissuade me from the proposition that the relevant test had been made out. 6. She made it perfectly clear that the imposition of an ESO could well be opposed in the future, although her client frankly and realistically accepts that he will need assistance in reintegrating into the community. In particular, he is concerned to ensure that no ESO should be so rigorous or inflexible as to prohibit, as a matter of practicality, contact with loved ones in western New South Wales. 7. Finally, she explained that her client is concerned for the Court to understand that, whilst he accepts that the authorities must act in the interests of the community as well as a prisoner, nevertheless he feels that he has been insufficiently assisted whilst in custody. In particular, he feels that he has been caught, since the expiration of his total non-parole period, in something of a "Catch 22", whereby he has for years felt unable to prove himself except by succeeding on parole, but the authorities have not been content to grant him parole until he can prove himself in custody. Determination 1. There is force in the proposition that here is a man who commenced to offend criminally as a very young child, no doubt because of profound deprivation suffered in his upbringing. His first control order commenced in August 1991, when he was aged only 17 years. He has been in continuous custody for well over two decades since he was aged 18 years. Tragically, I consider that Mr Kreuzberg is able to survive quite well in a prison, but would find it very difficult, at least at first, to survive in the community. 2. Unlike many prisoners in his position, he has sought to do something constructive about the problem. His engagement in the VOTP and other programmes is commendable, and shows that he has a motivation to address the gravely antisocial conduct in which he has engaged in the past. 3. Nevertheless, at this preliminary stage, I am merely called upon to assess whether a prima facie case has been made out for the imposition of an ESO at a future final hearing. I consider that that test has been amply satisfied on the evidence placed before me, bearing in mind the longstanding and repeated proclivity of the defendant to engage in serious offences of violence, one of which was fatal, and at least one other of which could easily have been. 4. I accept the expert opinion about his high risk of committing an offence of violence if simply released into the community, unsupervised and unassisted, in 10 weeks' time. But quite apart from the views of experts, I consider that, as a matter of simple common sense, to release this man, burdened by that proclivity and without any supervision or support after 21 years in custody, could certainly give rise to a very real risk of him committing a serious offence of violence, perhaps a catastrophic one. 5. Each counsel submitted that, at this preliminary stage and in light of the fact that the orders sought constitute a minimal infringement upon the liberty of the defendant, there is no need for this judgment to engage in an explicit analysis of the factors contained in s 9(3) of the Act, despite their indirect relevance to the question that I must determine. In light of the joint position of the parties, I shall not do so; nevertheless, I indicate that I have referred myself to the pertinent matters in that section in coming to this initial determination. 6. In short, I am soundly satisfied that, on the evidence placed before me, the plaintiff has demonstrated a prima facie case for the making of an ESO at a future hearing. It follows that the test arising from the combined effect of s 5E and s 7(4) has been made out. For that reason, I propose to make orders reflecting orders 1(a) and 1(b) sought in the summons of the plaintiff. Orders 1. Accordingly, I make the following orders: 1. An order pursuant to section 7(4) of Crimes (High Risk Offenders) Act 2006: 1. Appointing one qualified psychiatrist and one qualified psychologist 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 that the defendant attend those examinations. 1. The matter is relisted before the Common Law Registrar at 9 am on Wednesday 15 April 2015 for further directions. ********** Amendments 20 June 2024 - Publication restriction lifted. 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: 20 June 2024