State of New South Wales v Loto [2020] NSWSC 222

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Loto [2020] NSWSC 222 Hearing dates: 4 March 2020 Date of orders: 13 March 2020 Decision date: 13 March 2020 Jurisdiction: Common Law Before: Campbell J Decision: See Paragraph 95 Catchwords: CIVIL LAW – Interim supervision order – Extended supervision order – applicability of Crimes (High Risk Offenders) Act to parolees – difference between parole and extended supervision order conditions – parole conditions superseded by interim supervision order conditions - unacceptable risk of committing another serious violence offence - criminal history – involvement in offenders programs Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Cases Cited: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Francis Loto (Defendant) Representation: Counsel: K. Curry (Plaintiff) P. Coady (Defendant)

Solicitors: Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2018/241016

Judgment

Introduction 1. By amended summons filed in court on 3 March 2020, the State of New South Wales (the State) seeks by way of final relief an order under ss 5B and 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) (The Act) that the defendant, Mr Loto, be subject to an Extended Supervision Order ("ESO") for a period of 3 years from the date on which the order is pronounced. Under s 11 of the Act, the State also seeks an order directing Mr Loto to comply with the 45 conditions set out in the schedule annexed to the amended summons. Other ancillary relief is also sought. 2. For reasons which are best explained by reference to Mr Loto's custodial history, the course of the present case has been somewhat unusual for proceedings of this type. The original summons was filed on 1 August 2018, two months before the expiration of the sentence imposed by Woodburne SC DCJ for the serious violence offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) (the index offence) expiring on 11 October 2018. This was within the last nine months of his then current custody for the purpose of s 6 of the Act. 3. The preliminary application for an interim supervision order ("ISO") and the appointment of experts under s 7(4) of the Act was heard by Rothman J on 12 September 2018. His Honour pronounced orders, including an ISO for a period of 28 days, on 11 October 2018. 4. However, Mr Loto was not released at the expiration of the head sentence for the index offence, but remained in custody on remand relating to a charge of affray which arose on 25 February 2017 and a further charge of wounding while reckless as to the causing of actual bodily harm whilst in company contrary to the provisions of s 35(3) Crimes Act 1900 occurring on 17 May 2017. Obviously both of these offences were said to have occurred while Mr Loto was an offender in custody in a correctional centre. 5. The affray charge was withdrawn at the commencement of the appointed trial on 23 July 2019. 6. In the meantime Mr Loto had been examined by Dr Andrew Ellis, forensic psychologist, on 7 July 2019, his report to the Court bears the same date, and by Mr Patrick Sheehan, forensic pathologist on 11 July 2019, who's report to the Court bears that date. Both these examinations took place pursuant to the orders of Rothman J. 7. An expected final hearing before Button J on 1 August 2019 was adjourned because Mr Loto remained in custody and was to be sentenced by Ellis DCJ for the aggravated s 35(3) offence to which he had entered a plea of guilty at his trial on 23 May 2019. By consent Button J made amendments to the conditions of the ISO ordered by Rothman J on 11 October 2018, and adjourned the proceedings. 8. On 11 September 2019, Ellis DCJ sentenced Mr Loto to a term of imprisonment of 3 years and 7 months commencing on 19 February 2018 and expiring on 18 September 2021 with a non-parole period of 1 year and 7 months. The earliest date for Mr Loto's release therefore was 18 September 2019, about 2 weeks later. 9. Probably because of the shortness of time available after sentence was passed, Mr Loto was not released on parole until 26 November 2019 on a parole order made by the State Parole Authority dated 14 November 2019. 10. The ISO pronounced by Rothman J had remained suspended under s 10C(1A) of the Act during the period of Mr Loto's lawful custody and accordingly did not commence legal operation until after his release, expiring 28 days from this date. For reasons which are not fully explained, the ISO which was extended from time to time as permitted by s 10C(2) of the Act is said to have expired on 17 February 2020 (affidavit Kelli Grabham, affirmed 26 February 2020, at [18]), rather than 25 February 2020. The latter date would represent the maximum permitted extensions under the Act for successive ISO's each of 28 days, but not exceeding a period of three months. When I heard the matter on 4 March 2020, Mr Loto was being supervised under the parole order made on 14 November 2019, but, again, in somewhat unusual circumstances which it is necessary to explain to deal with a preliminary legal argument made on his behalf.