State of New South Wales v McGee (Preliminary) [2019] NSWSC 53

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 Hearing dates: 6 December 2018 Date of orders: 06 December 2018 Decision date: 07 February 2019 Jurisdiction: Common Law Before: Fullerton J Decision: Interim supervision order imposed. Catchwords: HIGH RISK OFFENDER – preliminary hearing – application for extended supervision order – assessment of whether defendant poses an unacceptable risk – interim supervision order granted – no point of principle Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (High Risk Offenders) Amendment Act 2017 (NSW) Cases Cited: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Sancar [2016] NSWSC 867 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Charlie McGee (Defendant) Representation: Solicitors: Crown Solicitor of New South Wales (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/340127

Judgment 1. HER HONOUR: On 6 December 2018 I made the following orders, by consent, in accordance with the short minutes of order signed by the parties and countersigned by me: The Court orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. Two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 1 February 2019; and b. The defendant is directed to attend the examinations in order 1a as scheduled. 2. The plaintiff to file and serve any evidence for the final hearing and any written submissions upon which it wishes to rely by 4 February 2019. 3. The defendant to advise the plaintiff which experts are required to attend Court to give evidence at the final hearing by no later than 4pm on 6 February 2019. 4. The defendant to file and serve any evidence for the final hearing and any written submissions upon which it wishes to rely by 8 February 2019. 5. Each party is to provide to the chambers of the judge allocated to preside at the hearing a working copy of each document to be relied upon by the party by no later than 8 February 2019. 6. Each party is to inform the other of the witnesses required by that party for cross-examination at the hearing by no later than 11 February 2019. 7. The plaintiff to file and serve any written submissions in reply by no later than 12 February 2019. 8. The matter be listed for hearing on 13 February 2019 at 10.00am with an estimate of 1 day. 9. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a justice of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access. 10. Liberty to apply to relist the matter on one day's notice. 1. What follows are my reasons for making those orders. 2. By Summons dated 6 November 2018, the State of New South Wales (the plaintiff) applied pursuant to ss 5B, 5I and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") for an order that the defendant, Charlie McGee, be subject to an extended supervision order ("ESO") for a period of three years from the date of that order. The plaintiff also seeks an order pursuant to s 11 of the Act that Mr McGee be directed to comply with a range of proposed conditions, itemised in Schedule A annexed to the Summons, for the period of the ESO. 3. The plaintiff also sought in the Summons an order that Mr McGee be subject to an interim supervision order ("ISO") pursuant to s 10A of the Act to date from 28 March 2019 for a period of 28 days or, if he was released on parole prior to that date, for a period of 28 days from that date unless the order was renewed on the plaintiff's application or the proceedings were finally determined within the timeframe, and an order that Mr McGee be directed to comply with the same conditions sought in respect of the ESO for the duration of the ISO. 4. Finally, the plaintiff also sought an order pursuant to s 7(4) of the Act for the appointment of two qualified psychiatrists and/or registered psychologists ("the experts") to conduct separate examinations of Mr McGee, and to furnish reports to the Court on the results of those examinations. 5. At the preliminary hearing convened in accordance with s 7 of the Act on 6 December 2018 Mr McGee accepted, through his counsel, that he met the statutory criteria in ss 5A and 5B of the Act for the plaintiff to invoke the jurisdiction of the Court under the Act, and that the plaintiff's application for both the ISO and ESO was made within the period specified in ss 5B(c) and 5I of the Act. He also acknowledged that the plaintiff's application was made within nine months of the expiration of his sentence in compliance with s 6(1) of the Act and that the documents identified in s 6(3) of the Act were filed in support of the Summons. 6. Finally, Mr McGee acknowledged that he is over 18 years of age (he was born in September 1985, and is now 33 years of age) and that he was sentenced to imprisonment following his conviction for a "serious offence" as provided for in s 4(1), being a "serious violence offence" as defined in s 5A(1)(a) of the Act. The sentence of imprisonment for what will hereinafter be referred to as "the index offence" was imposed on 15 November 2011. It attracted a sentence of imprisonment for 4 years and 3 months commencing on 2 December 2014 with a non-parole period of 12 months. He was also sentence in those proceedings for other offending and received an effective head sentence of 9 years imprisonment with a non-parole period of 5 years and 9 months. That sentence will expire on 28 March 2019. The index offence was laid contrary to s 35(2) of the Crimes Act 1900 (NSW), being an offence of recklessly causing grievous bodily harm. That offence was committed on 16 June 2010. 7. Mr McGee was first eligible for release to parole on 28 December 2015. His application for parole was refused. A further application was refused in December 2016 due to the assessed need for him to complete custody-based programs to address his offending behaviour, including his violent offending, and the need for structured arrangements for his readjustment into the community post release, including suitable accommodation. In October 2017 Mr McGee notified the Corrective Services of his preference to complete the balance of his sentence in custody to afford him those opportunities. 8. A parole hearing before the State Parole Authority was subsequently listed for 7 December 2018 (the day following the interim hearing of the Summons in this Court). It was in those circumstances that Mr McGee applied to have the preliminary hearing adjourned until his application for parole was determined. It was submitted on his behalf that should he be granted parole subject to an appropriately stringent and extensive range of conditions by the State Parole Authority, including, in particular and by way of example, an obligation to provide his supervising parole officer with a schedule of his movements, thereby obviating any need for electronic monitoring (one of the conditions sought by the plaintiff in Schedule A to the Summons), the Court would be in a better position to assess his capacity to reintegrate into society without the need for supervision under Court imposed orders under an ISO or ESO in the exercise of the Court's discretionary judgment under the Act.