Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Donovan [2015] NSWCA 273 Hearing dates: 1, 2 September 2015 Date of orders: 02 September 2015 Decision date: 09 September 2015 Before: Beazley P Decision: Reasons for orders made 2 September 2015 published. Orders confirmed: 1. Direct a stay of the extended supervision order made by her Honour Justice McCallum on 1 September 2015; 2. Order pursuant to s 18B(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to an interim detention order commencing at 11 am on 2 September 2015 which expires at 12 pm on 9 September 2015 or upon further order of this Court, whichever is the earlier; 3. Order pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order 2 above; 4. Order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) that the Commissioner cause Brian James Donovan to be produced to the AVL rooms at Bathurst Correctional Centre at 10.15 am on 9 September 2015; 5. Leave granted to the applicant to amend para (4) of the notice of motion returnable 1 September 2015 to read s 18B(1) not s 18C(1); 6. Matter set down for hearing at 10.15 am, 9 September 2015. Catchwords: CRIMINAL LAW – high risk violent offender – application for stay of extended supervision order – Crimes (High Risk Offenders) Act 2006 (NSW), s 5F PRACTICE & PROCEDURE – stay – application for continuation of interim detention order until appeal of extended supervision order heard – Crimes (High Risk Offenders) Act 2006 (NSW), s 18B – whether granting of stay would give effect to primary object of the Crimes (High Risk Offenders) Act 2006 (NSW) to ensure the safety and protection of the community – Crimes (High Risk Offenders) Act 2006 (NSW), s 3(1) Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2015] NSWCA 227 Category: Principal judgment Parties: State of New South Wales (Applicant) Brian James Donovan (Respondent) Representation: Counsel: N Sharp; A Avery-Williams (Applicant) M Johnston (Respondent) Solicitors: Crown Solicitor's Office (Applicant) Legal Aid Commission of New South Wales (Respondent) File Number(s): 2015/256953 Decision under appeal Court or tribunal: Supreme Court Citation: State of New South Wales v Donovan [2015] NSWSC 1254 Date of Decision: 1 September 2015 Before: McCallum J File Number(s): 2015/153125 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. HER HONOUR: The respondent, Brian James Donovan, has completed the term of imprisonment imposed upon him in respect of his conviction for the offence of recklessly inflicting grievous bodily harm contrary to the Crimes Act 1900 (NSW) (the index offence). The crime of which Mr Donovan was convicted falls within the definition of a "serious violence offence" in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW) (the High Risk Offenders Act). Mr Donovan, therefore, falls within the definition of "violent offender" in s 4 of that Act. 2. Section 5E of the High Risk Offenders Act provides that 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 violent offence if he or she is not kept under supervision. 3. Section 5F of the High Risk Offenders Act provides for the making of an extended supervision order for the supervision of an offender if the offender is a "high risk violent offender". However, pursuant to s 5G, the Supreme Court may make an order for the continued detention of a high risk violent offender (a continuing detention order) if the Court "is satisfied that adequate supervision will not be provided by an extended supervision order". 4. A right of appeal to the Court of Appeal from orders made by the Supreme Court under the High Risk Offenders Act is provided by s 22. 5. On 1 September 2015, McCallum J made an extended supervision order pursuant to s 5F of the High Risk Offenders Act. The order was made subject to conditions, including conditions that Mr Donovan refrain from using drugs or alcohol. That condition was of particular importance, given that Mr Donovan's offending conduct in respect of the index offence occurred whilst under the influence of alcohol and that alcohol was a significant, but not invariable, aspect of his extensive record of prior convictions. Many acts of violence and, in particular, acts of domestic violence, which were described in the material before the primary judge as being of "escalating seriousness" were linked to Mr Donovan's substance abuse: judgment at [24]. 6. Following the making of the extended supervision order, the State made an application for a stay of the order and, pursuant to the High Risk Offenders Act, s 18B, sought an order for the continuation of an interim detention order pending the determination of an appeal from McCallum J's orders. It was the State's contention that her Honour had erred in making an extended supervision order and that the appropriate order to be made in the circumstances of Mr Donovan's offending history was a continuing detention order pursuant to s 5G. 7. On 2 September, I ordered a stay of McCallum J's orders and made an interim detention order as sought by the State, and reserved my reasons. At the same time, of its own motion, the Court gave the matter an urgent hearing date of 9 September 2015 for the hearing of the appeal. The matter raised serious questions of the liberty of the individual, Mr Donovan's lawful period of imprisonment having expired on 25 July 2015, some five weeks previously, and of the public interest in the protection of the community. 8. My reasons for granting the stay and continuing the interim detention order until the hearing of an appeal are as follows. 9. In Woodlawn Capital Pty Limited v Motor Vehicles Insurance Limited [2015] NSWCA 227, I summarised the well-known principles by which a court will determine whether or not to grant a stay, as follows: "7. The applicant must demonstrate that there is a reason for the grant of a stay, or that the matter is an appropriate case, in the exercise of the Court's discretion: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694. It is not necessary for the applicant for the stay to establish special or exceptional circumstances: Alexander v Cambridge Credit Corporation at 694. 8 … A stay is likely to be granted if the appeal would otherwise be rendered nugatory. The court considering the grant of a stay is not required to determine the merits of the appeal but usually considers whether the applicant has at least an arguable case ..." 1. In the present case, the State submitted that her Honour erred in the following three respects in making the extended supervision order as opposed to the making of a continuing detention order. First, her Honour erred in her construction of "adequate supervision" for the purposes of s 5G. Secondly, her Honour erred in failing to provide reasons for her conclusion that she was not satisfied that an extended supervision order would not provide adequate supervision. Thirdly and in the alternative, the finding that the extended supervision order would provide adequate supervision was contrary to the weight of the evidence. 2. The State submitted that there was a real risk to the safety of the community which justified the continuing detention of Mr Donovan pending the outcome of the appeal. The State submitted that the grant of a stay would give effect to the "primary object" of the High Risk Offenders Act as provided for in s 3(1), namely, the "safety and protection of the community". Section 3(2) of the High Risk Offenders Act provides that the encouragement of rehabilitation of the offender is "another object" of that Act. 3. The State contended that the evidence was that Mr Donovan presented a risk to the safety of the community should he be released. In this regard, McCallum J found that he presented an unacceptable risk of reoffending: see judgment at [62]; and has a propensity for violence: judgment at [72]. These findings are not, as I understand it, in dispute. 4. An issue before her Honour was the proper construction of "adequate supervision" within the meaning of s 5G of the High Risk Offenders Act. The State submitted that the supervision to which an offender would be subject pursuant to an extended supervision order must be adequate to eliminate or substantially reduce the unacceptable risk of reoffending by the commission of a serious violence offence. Mr Donovan's contention was that s 5G(1) is directed to the amelioration of the unacceptable risk of committing a serious violence offence. He accepted that this required that an extended supervision order would be adequate to substantially reduce that unacceptable risk. As I see it, therefore, there was no real difference in approach to the proper construction of that section as between the parties. 5. Her Honour considered that it was not necessary to define, in any more precision than the words of the statute, what constitutes "adequate supervision" for the purposes of s 5G. As her Honour remarked, at [55], the High Risk Offenders Act had left to the Court the evaluative judgment as to the degree of supervision that will be adequate in a particular case, having regard to the objects of the Act and the discretion as to whether to make a continuing detention order in any event. 6. I do not consider it necessary to determine whether there is an arguable case that her Honour erred in her approach to the proper construction and application of s 5G, as I have concluded that there is a more pressing reason why a stay should be granted. As the State submitted, and as her Honour observed in her judgment, Mr Donovan has a propensity for violence. He has failed to complete various treatment courses, including a residential course relating to his drug and alcohol dependence. In the evidence before her Honour, a concern was raised as to whether he currently has the motivation or commitment to comply with any schedule of movements regime imposed upon him in respect of his management in the community. It was noted in evidence before her Honour that electronic monitoring would not preclude Mr Donovan from meeting with family, friends and others from whom he could access drugs. 7. It was apparent from a reading of the psychiatric evidence before her Honour that whilst the two psychiatric experts, Dr Roberts and Dr O'Dea, did not disagree as to the role that alcohol played in Mr Donovan's offending behaviour, there was a greater preference by Dr O'Dea for treatment in the community. Her Honour accepted that approach. 8. This is not a case where, had a stay not been granted, the appeal would, in the language used in this area of jurisprudence, be rendered nugatory, as the Court could revoke the extended supervision order and make an continuing detention order. Nonetheless, questions of statutory construction and application aside, there is a question raised by the appeal as to whether the orders made by her Honour in the evaluative task required by the section should remain in force, or whether Mr Donovan should be made the subject of a continuing detention order. 9. In circumstances where Mr Donovan is a person who continues to exhibit significant risk factors in relation to violent offending, I formed the opinion that the Court should give primacy to the safety and protection of the community by granting the stay, and should make orders consequential upon the granting of a stay as sought by the State. I confirm the orders made on 2 September 2015 as follows: 1. Direct a stay of the extended supervision order made by her Honour Justice McCallum on 1 September 2015; 2. Order pursuant to s 18B(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to an interim detention order commencing at 11 am on 2 September 2015 which expires at 12 pm on 9 September 2015 or upon further order of this Court, whichever is the earlier; 3. Order pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order 2 above; 4. Order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) that the Commissioner cause Brian James Donovan to be produced to the AVL rooms at Bathurst Correctional Centre at 10.15 am on 9 September 2015; 5. Leave granted to the applicant to amend para (4) of the notice of motion returnable 1 September 2015 to read s 18B(1) not s 18C(1); 6. Matter set down for hearing at 10.15 am, 9 September 2015. ********** Amendments 22 September 2015 - Typographic errors corrected at [5] and [17] 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: 22 September 2015