State of New South Wales v Holschier (No 3) [2019] NSWSC 341

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Holschier (No 3) [2019] NSWSC 341 Hearing dates: 5 March 2019 Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Common Law Before: Campbell J Decision: The application for a further Extended Supervision Order is refused The summons filed on 28 November 2018 is dismissed. Catchwords: HIGH RISK VIOLENT OFFENDER – extended supervision orders – unacceptable risk – court must be satisfied to high degree of probability that offender poses unacceptable risk – risk of commission of serious violence offence low Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5, 9, 10, 11, 12 Crimes Act 1900 (NSW), s 61 Cases Cited: Jones v Dunkel (1959) 101 CLR 298; Lynn v State of New South Wales (2016) 91 NSW LR 636; [2016] NSWCA 57; State of New South Wales v John Raymond Holschier [2016] NSWSC 234 State of New South Wales v Naaman (No2) [2018] NSWCA 328 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Category: Principal judgment Parties: State of New South Wales (Plaintiff) John Raymond Holschier (Defendant) Representation: Counsel: S. McGee (Plaintiff) M. Avenell (Defendant)

Solicitors: Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2018/366776

Judgment 1. This is a second application for an extended supervision order against the defendant, Mr Holschier, made under the Crimes (High Risk Offenders) Act 2006 (NSW). The first order was made by Hidden J after many hearing days on 8 December 2014 for a period of 3 years and subject to a suite of conditions Mr Holshier was directed to comply with under s 11 of the Act. Due to Mr Holschier re-offending during the currency of the ESO, its operation was from time to time suspended under s 10(2) of the Act, which had the legal effect of extending the original 3 year order so that it expired on 13 January 2019. 2. By orders made on 12 December 2018, Hoeben CJ at CL ([2018] NSWSC 1921) made an interim supervision order under s 10A of the Act from midnight on 13 January 2019. That ISO has been now extended thrice, the statutory maximum under s 10C(2) of the Act. The third ICO was made by me at the hearing of the substantive application on 5 March 2019. It expires on 5 April 2019. 3. As I have said s 10(3) of the Act makes clear that the Court is empowered to entertain an application and make a second or subsequent ESO against the same offender. Obviously in respect of each application against an offender, the statutory conditions in s 5B of the Act must be satisfied, the requirements of s 9 for making an order, or dismissing the application, must be observed and a determination under s 11 as to the conditions to be complied with by the offender must be made. 4. On the hearing before me the State was represented by Ms S McGee of Counsel and Mr Holschier by Ms M. Avenell of Counsel (Public Defender). Ms Avenell made it clear in written and oral submissions that there was no issue that the conditions specified in paragraphs (a) to (c) of s 5B of the Act were satisfied. The real issue for determination so far as s 5B was concerned was whether the paragraph (d) condition was satisfied. The Court may not make an extended supervision order unless "satisfied to a high degree of probability that [Mr Holschier] poses an unacceptable risk of committing another serious offence if not kept under supervision under" an ESO. 5. Ms Avenell's concessions were properly made. Paragraph (a) is satisfied because Mr Holschier is an offender who has served a sentence of imprisonment for a serious offence; paragraph (b) is satisfied by the consideration that he is a supervised offender within the meaning of s 5I because Mr Holschier was under supervision under an existing ESO as provided by s 5I(2)(b); and paragraph (c) is satisfied because the summons seeking this second extended supervision order was filed while the existing ESO was current. 6. Before turning to the outstanding issues it is important to point out that notwithstanding a somewhat chequered history of compliance with the ESO, at least initially, as I will demonstrate, Mr Holschier's compliance has been much improved such that compliance with some of the more restrictive conditions imposed by Hidden J has been relaxed. Importantly, the State seeks this second order for a period of 12 months only.