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. The statutory framework 1. While the ultimate question for determination at the final hearing of the Summons is whether the Court is satisfied, to a high degree of probability, that Mr McGee poses an unacceptable risk of committing another serious offence if not kept under supervision, at the preliminary hearing it is not for the Court to assess the weight of the supporting documentation in support of the making of interim orders, or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation (and such material as has been tendered by Mr McGee) and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO. Although that exercise has been described as likened to the application of a "prima facie case" test, the more accurate formulation, consistent with the test in s 5B(d), is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That obliges the plaintiff to allege certain facts which, if proved, would lead to a conclusion that the making of an ESO is justified. 2. It is also clear that in undertaking that evaluative task, the objects of the Act must be kept in mind. The objects of the Act contained in s 3 are as follows: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. 1. I also note that s 9(2) of the Act, introduced by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) obliges the Court to give primacy to the safety of the community. 2. Finally, it is well settled that the test to be applied at a preliminary hearing for the making of an ISO is generally regarded as "not a stringent one" (see generally State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 and State of New South Wales v Sancar [2016] NSWSC 867). The evidence 1. The evidence relied upon by the State as comprising the supporting documentation upon which the issue of the ISO is sought is as follows: 1. Affidavit of Tram Nguyen dated 6 November 2018; 2. Affidavit of Tram Nguyen dated 23 November 2018; 3. Affidavit of Janelle Farroway dated 23 November 2018; 4. Affidavit of Tram Nguyen dated 5 December 2018. 1. Mr McGee tendered the following material: 1. Affidavit of Ruth Layton dated 28 November 2018; 2. Affidavit of Mr McGee dated 28 November 2018. The preliminary hearing in summary 1. In the outline of submissions, Mr McGee's counsel notified the Court that in the event that the adjournment application was refused, Mr McGee maintained his opposition to the making of the final orders sought by the plaintiff on the basis that the material relied upon by the plaintiff to support the making of final orders would not satisfy the Court to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision. He did accept, however, that the evidence upon which the plaintiff relied at the interim hearing for an order appointing qualified experts pursuant to s 7(4) of the Act would likely satisfy the Court that those orders ought be made, the plaintiff's counsel having properly conceded in the course of the hearing that s 10A(a) of the Act precluded the plaintiff moving on that part of the Summons which sought the imposition of supervision orders on an interim basis. 2. Section 10A provides: The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. 1. The concession by the plaintiff that the Court does not have the jurisdiction to make an ISO in circumstances where Mr McGee's custody at the date of the preliminary hearing will not expire before the Summons is determined was properly made. As noted earlier, Mr McGee's sentence does not expire until 29 March 2019. The plaintiff accepted that there was no reason to suppose that the sentence would expire before a final hearing of the Summons was convened. Similarly, were he to be released to parole following the parole hearing scheduled for 7 December 2018, his "supervision" under that regime would continue until the expiration of his sentence (that is, it would not expire before a final hearing of the Summons). 2. Having regard to the agreed position of the parties at the preliminary hearing as to the limited jurisdiction of the Court to make orders under the Act, and the parole hearing scheduled for the following day, I resolved to refuse Mr McGee's application to adjourn the preliminary hearing but to make orders limited to the orders under s 7(4) obliging Mr McGee to attend scheduled examinations before appropriately qualified experts to facilitate the furnishing of reports to this Court, according to the timetable I imposed in advance of the final hearing listed on 13 February 2019. I also made orders at that time allowing the parties to file and serve any evidence upon which they propose to rely at the final hearing of the Summons, inclusive of the filing and service of written submissions and the exchange of those submissions before the final hearing. 3. Before making those orders, I note that on the basis of the documentary material read by the plaintiff on the preliminary hearing, it remains, at this time, the plaintiff's case that the evidence would satisfy the Court that Mr McGee poses an unacceptable risk of committing a further serious offence (as defined) unless he is kept under supervision, and that various matters the Court would be invited to consider would justify the making of an ESO. In particular, I note that risk assessment reports (the most recent of which is dated 31 July 2018 prepared by Gillian Tulloch, senior psychologist, together with an earlier report dated 2 November 2016, prepared by Sandy Rawson, senior psychologist) support the plaintiff's submission that Mr McGee poses a high risk of further violent offending if he is not supervised. It is not necessary, however, for present purposes to analyse the content of either of the reports in close detail or the evidence filed by Mr McGee to address it. Suffice to note that both psychologists expressed concern that Mr McGee had, at least to their understanding, declined to participate in custody based programs directed to addressing his generalised criminal profile which includes multiple offences of violence which commenced with an antecedent criminal record at age 11. 4. The Court is also conscious of the fact that the index offence involved Mr McGee hitting a man with a hammer to the right side of his face in the course of stealing that man's car, and that whilst driving a stolen motor vehicle during the course of a subsequent police pursuit Mr McGee collided with two children (aged 14 and 7) who were walking home from school. 5. Equally as importantly, although not a matter I need to analyse in close detail, the sentencing judge's reasons for imposing the sentence for the index offence reveal a positive finding that Mr McGee's moral culpability for the course of offending constituted by those events was reduced by reason of a diagnosed mental illness impacting upon his capacity for judgment and rational decision making compounded by his substance abuse. The sentencing judge also noted that Mr McGee had demonstrated insight into his mental health issues and that, in the view of the sentencing judge, Mr McGee was making conscientious efforts to address the underlying causes of his criminal offending, including his substance abuse, also while in custody. 6. I also read and considered Mr McGee's affidavit in which he sets out in some detail his insight into the offending the subject of the index offence (and the related offences) and acknowledges the need for community based programs to assist with his underlying mental illness and addressing other vulnerabilities in order to fulfil his stated determination not to reoffend in any way against the criminal law. 7. I repeat, however, I have not considered the various nuances that arise in the consideration of the evidence tendered before me bearing upon the ultimate relief sought in the Summons given the concession by both parties that at the preliminary hearing the only orders sought at that time were those sought in the short minutes; orders which I made by consent that day. It is inappropriate that I express any view, preliminary or otherwise, as to the issues that might present in the event that the plaintiff determines to move on the Summons for final relief (in the form of an ESO) or to reagitate its application for interim supervision orders. ********** 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: 07 February 2019