Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Lynn [2018] NSWSC 1240 Hearing dates: 2 August 2018 Decision date: 10 August 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006: (a) appointing two qualified psychiatrists and/or registered psychologists (or any combination of such persons) to conduct separate psychiatric 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) The parties have leave to approach the chambers of Bellew J with regard to the further hearing of the matter, such approach to be joint and within 4 days from today. Catchwords: HIGH RISK OFFENDER – application for appointment of two psychiatrists/psychologists pursuant to s 15(4) of Crimes (High Risk Offenders) Act 2006 (NSW) – expiration of current custody unknown – whether highly limited preliminary order premature – order made Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 15 Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Lynn v State of NSW [2016] NSWCA 57 State of New South Wales v Lynn [2013] NSWSC 1147 State of NSW v Lynn [2013] NSWSC 1346 State of NSW v Lynn [2015] NSWSC 665 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Scott David Lynn (Defendant) Representation: Counsel: P Aitken (Plaintiff) T Evers (Defendant) Solicitors: Crown Solicitors NSW (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/160408 Publication restriction: Nil Judgment Introduction 1. By an amended summons filed on 8 June 2018, the State of New South Wales (the plaintiff) seeks, at this stage, one substantive order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), pertaining to Mr Scott David Lynn (the defendant): "1. An order pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 ("The Act"): a. appointing two qualified psychiatrists and/or registered psychologists (or any combination of such persons) to conduct separate psychiatric 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. 1. Counsel for the plaintiff confirmed at the hearing before me that he was not seeking any interim detention order or interim supervision order. I understood that to be for the following reasons. 2. As things stand, the defendant is serving a sentence that was imposed on 4 June 2018 in the Local Court, the non-parole period of which will expire on 3 June 2019. Having said that, the defendant has lodged an appeal against conviction and severity of sentence to the District Court, and the hearing of the appeal was to have been assigned a date on 9 August 2018. 3. Furthermore, due to the operation of s 10 of the Act, when released at the conclusion of his non-parole period, the defendant will be subject to an extended supervision order (ESO) that was imposed by Hidden J on 17 December 2013, and the operation of which is currently suspended. 4. Accordingly, on the one hand, the plaintiff does not apply to curtail or remove the liberty of the defendant at this stage; on the other hand, the plaintiff seeks to be in a position promptly to do so as the need may arise in the future. Adjournment? 1. At the commencement of the hearing of this matter, counsel for the defendant submitted that the application was premature. In rejecting that submission in a separate concise judgment, I determined that, even if the defendant's release date may, at least for the time being, be quite some months from now, it was appropriate for me to hear the highly limited application as to whether or not two psychologists or psychiatrists should be ordered to prepare reports, and for the defendant to attend upon them. Application to recuse? 1. On an earlier occasion, on which the hearing of the matter was adjourned on the application of the defendant, I also refused an application made on his behalf to recuse myself on the ground of apprehended bias. My reasons for doing so were as follows. 2. Put simply, that application was founded upon the fact that, in August 2013, I determined a preliminary hearing pursuant to the Act in favour of the plaintiff and against the defendant. In applying the test to be found in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 – namely, whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of a question I am required to decide – I thought the following factors to be important. 3. First, my previous interaction with the defendant had been five years beforehand. 4. Secondly, in the interim I had heard very many preliminary and final applications pursuant to the Act. In other words, there was no reason for the defendant to stand out particularly, and he is by no means the only person with regard to whom I have made orders pursuant to the Act. 5. Thirdly, the orders that I had made against the defendant were preliminary only, not final, and in that sense I was merely predicting what another judge of this Court might ultimately decide. 6. Fourthly, I had imposed an interim supervision order (ISO) on the defendant, thereby restricting his liberty, rather than an interim detention order (IDO), thereby removing it. 7. Fifthly and finally, in my judgment on that earlier occasion, I had not made particularly harsh or adverse findings against the defendant: see State of New South Wales v Lynn [2013] NSWSC 1147. Background to the present application 1. Many judgments of this Court, at both levels, have been delivered that delineate the ongoing litigation between the plaintiff and the defendant. To state them chronologically, they are: State of NSW v Lynn [2013] NSWSC 1147, State of NSW v Lynn [2013] NSWSC 1346, State of NSW v Lynn [2015] NSWSC 665, and Lynn v State of NSW [2016] NSWCA 57. In light of all of that factual and legal analysis, I shall not be repetitive in this further judgment. 2. The defendant was born in May 1976 in Tamworth, and accordingly is now 42 years of age. His upbringing was an unhappy one, featuring as it did protracted divorce proceedings between his parents when he was aged about 8, his leaving school during year 8, and his subsequent abuse of heroin and amphetamines. 3. At the age of 16 years the defendant fathered a child, when one respectfully suspects he was incapable of fulfilling his responsibilities as a parent. 4. Since that time, the life of the defendant has been disrupted and difficult, not least because he is a man who is quick to take offence; readily relies on his purported right to self-defence; and possesses an established tendency to use weapons when doing so. All of that has been exacerbated by his abuse of prohibited drugs, including amphetamines. The result is that he has been interacting with the criminal justice system for many years, and has been convicted of many offences of violence, albeit that some are towards less serious end of the spectrum. He has spent a not insignificant part of his adult life in custody. 5. Those negative attributes of the life of the defendant came to a head in 2006 when, in the course of a trivial dispute in the Parramatta pedestrian mall in the west of Sydney, he fatally stabbed another man. A plea of not guilty of murder but guilty of manslaughter was accepted in full satisfaction of an indictment, on the basis that the defendant had acted in excessive self-defence. On conviction, Hidden J sentenced the defendant to a head sentence of imprisonment for 7 years with a non-parole period of 4 years 6 months, each to commence on 18 August 2006. 6. It was towards the end of the expiry of that head sentence that the plaintiff first brought proceedings pursuant to the Act against the defendant. After I made preliminary orders on 15 August 2013, Hidden J made final orders on 17 December 2013, in the form of an extended supervision order of three years, to commence on that same day. As I have said, that ESO has not yet expired, because its effluxion has been suspended more than once. 7. By any measure, the imposition of the ESO has not been a success. I say that because the reality is that the defendant has, since the imposition of the ESO less than five years ago, allegedly breached it in many ways, and has been convicted of breaching it several times. He has also been returned to custody a number of times as a result. 8. The most recent sentence imposed upon the defendant was for an offence of assault occasioning actual bodily harm, which arose from an ugly interaction between the defendant and a neighbour, in which the defendant is said to have armed himself with a metal bar, and used it (as I have noted above, the defendant has appealed against both conviction and sentence, and his counsel confirmed to me that he maintains his innocence). 9. There was also evidence placed before me that, quite apart from alleged or established breaches, supervision of the defendant pursuant to the ESO has been difficult indeed. There are differing perspectives about where fault lies in that regard. 10. From the perspective of the defendant, he feels hard done by, oppressed, picked on, and that all of the restrictions that are part and parcel of the ESO are doing nothing to help him rehabilitate himself. 11. At the other end of the spectrum, the view of the plaintiff (founded on the reports of its officers) is that the defendant has deployed actual and threatened violence against those given the task of supervising him, with the result not only that any rehabilitation has been grossly interfered with, but also that his supervision, far from being intensified, has actually been inappropriately reduced, simply as a public safety measure. 12. The result of all that, sadly from the perspective of the defendant and indeed the community, is that on the day of the substantive hearing of the application for the single order, the defendant appeared before me from custody by audio-visual link (AVL), just as he had done almost exactly 5 years ago, when I was first asked to make a preliminary order against him. Submissions of the plaintiff 1. Counsel for the plaintiff submitted that the order sought simply mandates that the defendant consult two psychologists, hardly an onerous curtailment of his liberty. 2. It was emphasised that the test for making a preliminary order – found in s 15(4) of the Act – is on its face not a stringent one, an impression confirmed by authority of this Court. 3. It was submitted that the attempts at past supervision and management of the defendant over the period of the ESO have resulted in many breaches by him, and actually caused the inappropriate relaxation of conditions in order to deal with problems arising from his conduct, to the detriment of the safety of the community. 4. It was submitted that the recent report of Dr Parker, psychiatrist, of 11 April 2018 contains the most recent discussion of the assessment of risk. That report states at [54]: "while much of the violence committed under this pattern would not be considered as a serious offence under the Act, the process leading to a serious violence offence would be identical, with the only difference being the outcome". The point was made by counsel that a serious violence offence may readily evolve (simply by way of its consequences) from an offence of violence that does not fall within that concept as defined, especially when weapons are used. 5. Furthermore, the psychiatric reports of Dr Parker and Dr O'Dea (both from 2013, admittedly five years ago) outlined issues that would inform the question of the moderation of risk of the defendant in the future. Those issues included: his lack of insight into his problems; his unwillingness to engage in therapy, or to make any commitment to change; his prior issues with supervision; his limited personal support; his unstructured plans for the future; his use of illicit substances; and the presence of Antisocial Personality Disorder. And it was submitted that the issues and risk factors identified by these psychiatrists in 2013, when Hidden J made the original ESO, still persist unabated today. 6. The further instances of conduct which underscore the nature of risk were submitted to include the April 2017 offences (affray and assault occasioning actual bodily harm), which are under appeal, and which involved the defendant hitting his neighbour with a metal bar. In addition, the defendant has in the past been involved in fights in custody, and has been found with gaol-made weapons or implements in his possession. 7. In short, it was said that I would be well satisfied that the test for making the highly limited order sought had been made out on the material placed before me by the plaintiff. Submissions of the defendant 1. In a nutshell, counsel for the defendant resisted the making of the single order on the following bases. 2. First, she submitted that dire predictions have been made since 2013 about the risk of the defendant committing a serious violent offence; however, the simple fact is that he has not been convicted of a serious violence offence since 2013. In particular, the parties agreed that the recent conviction for assault occasioning bodily harm does not fall within the definition of "serious violence offence" to be found in s 5A of the Act. 3. Secondly, aspects of the personality of the defendant make his being subject to an ESO an extremely demanding experience for him. But the fact is that the real complaint of the plaintiff is that the defendant is obstreperous and resistant to authority; those perhaps difficult aspects of his personality are not the bases upon which one could determine that the test in question is made out. 4. Thirdly, one should be cautious about placing too much emphasis on things that happened a decade or more ago. 5. Fourthly, the regrettable fact is that gaols are violent places, in which the authorities cannot always protect a person, and sometimes a person must protect himself or herself. That was said in support of the proposition that I should not read too much into the violent misconduct of the defendant in custodial settings. 6. Fifthly and finally, the ancillary submission was made that, if I were satisfied that the test for the making of the order has been made out, then the assessments should not be undertaken too early. That was said to be appropriate so that anyone assessing the defendant will have a clearer picture of the custodial position of the defendant, and the true extent of his criminal convictions. Determination 1. For the following reasons, I am satisfied that I should make the single order sought. 2. First, there was no dispute before me that all mechanistic pre-conditions for the making of an order against the defendant have been established. The only question is whether the test to be found in s 15(4) of the Act has been established; namely, that the Court "is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order." 3. Secondly, I accept the submission of the plaintiff that that test, calling as it does for reflection on the possibility of orders being made by another judge of this Court at some time in the future, is not an overly demanding one. 4. Thirdly, I think there is significant force in the submission of counsel for the defendant that, despite the many negative predictions about the defendant, as things have turned out, in the past five years he has not been convicted of a serious violence offence as defined by the Act. And it is noteworthy that the definition of such an offence is in fact reasonably broad, not narrow. 5. Fourthly, to be weighed against that is the fact that the defendant possesses an established tendency to use weapons in confrontational situations. In 2008, that tendency led to the unlawful death of a fellow human being. On the material placed before me, there is little or nothing to suggest that that tendency has faded or disappeared; indeed, he has recently been convicted of doing so yet again. 6. Fifthly, one can accept that aspects of the personality of the defendant – aspects that are perhaps not completely explained, or even understood – make it very difficult for him to experience being subject to an ESO. I also accept that conditional liberty can, as a generality, possess a "vicious circle" aspect to it, in that the more one chafes against its restrictive conditions, the more onerous that conditional liberty may become. And I also accept, as a general proposition, that personality clashes can sometimes develop between individuals in stressful and trying situations. 7. Still and all, even accepting all of those general propositions, the only way to characterise the behaviour and attitude of the defendant over the past several years is as seriously deficient. As the current custodial position of the defendant demonstrates, regrettably little or no progress has been able to be made. 8. Sixthly and finally, the evidence suggesting recent abuse of amphetamines – bearing in mind that they have a well-known potential to cause or exacerbate agitation, aggression, and paranoia – is particularly concerning. 9. In short, in all of those circumstances I think that it is possible that, in reflecting upon the material placed before me, another judge of this Court could see fit to impose an ESO or CDO upon the defendant, having determined that the test for imposing one or the other has been made out. In those circumstances, I am satisfied that it is appropriate for me to impose a very small curtailment upon the liberty of the defendant by making the single order that reports about him be prepared, and that he cooperate in their preparation. 10. Finally, with regard to the ancillary submission of counsel for the defendant about the timing of any such assessment, I am content simply to invite reflection on the part of the plaintiff as to whether, unless assessment becomes truly urgent, the timetable for the further progress of this matter should be a little postponed, if for no other reason than that it would be appropriate for experts assessing the defendant to have a reasonably clear picture of when his current period of incarceration will come to an end. Orders 1. I make the following orders: (1) Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006: (a) appointing two qualified psychiatrists and/or registered psychologists (or any combination of such persons) to conduct separate psychiatric 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) The parties have leave to approach the chambers of Bellew J with regard to the further hearing of the matter, such approach to be joint and within 4 days from today. ********** 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: 10 August 2018