State of New South Wales v Windle (No. 5) [2020] NSWSC 385

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Windle (No. 5) [2020] NSWSC 385 Hearing dates: 2 April 2020 Date of orders: 02 April 2020 Decision date: 02 April 2020 Jurisdiction: Common Law Before: Hamill J Decision: See [8] of the judgment. Catchwords: HIGH RISK OFFENDERS — Extended supervision orders — Preliminary hearing — Appointment of psychiatrists or psychologists Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 7A, 10(4) Cases Cited: R v Windle [2012] NSWCCA 222 R v Windle (Unreported, District Court of New South Wales, Garling DCJ, 15 December 2011) State of NSW v Windle [2016] NSWSC 1816 State of NSW v Windle (No. 2) [2017] NSWSC 94 State of NSW v Windle (No. 3) [2017] NSWSC 727 State of NSW v Windle (No. 4) [2017] NSWSC 1155 Category: Procedural and other rulings Parties: State of New South Wales (Applicant) Robert Andrew Windle (Respondent) Representation: Counsel: C McGorey (Applicant) E Kerkyasharian (Respondent) Solicitors: Crown Solicitors Office (Applicant) Legal Aid Commission (Respondent) File Number(s): 2019/393106 Publication restriction: Nil

EX TEMPORE Judgment 1. This is a preliminary hearing in relation to an application by the State of New South Wales for an extended supervision order ("ESO") under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant is Mr Windle. Mr Windle is currently subject to an existing ESO, which is due to expire on 11 June 2020. The final hearing of the State's present application is listed on 1 June 2020. Because the final hearing will occur before the expiration of the existing ESO, there is neither need nor jurisdiction to make an interim order at this stage: see Crimes (High Risk Offenders) Act 2006, s 10A. 2. A limited amount of material was tendered at the preliminary hearing and it was provided to me in advance. Mr Windle did not object to that material on the hearing of the application. Nor did he contest the making of orders under s 7(4) of the Crimes (High Risk Offenders) Act 2006. 3. Having perused the material, I am satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order". 4. In particular, on the limited material tendered at the preliminary hearing, the Court at the final hearing is likely to be satisfied, assuming there is any contest, that Mr Windle is an offender who served a sentence of imprisonment for a serious violence offence as that term is defined circuitously in the legislation, and the relevant offence was one of attempted murder by suffocation, to use lawyer's shorthand. The Court is also likely to be satisfied that Mr Windle is a supervised offender, there being no question that he is subject to an extended supervision order at this time. Thirdly, the Court is likely to be satisfied that the application was made in time and in accordance with the provisions of the Crimes (High Risk Offenders) Act. 5. Further, and perhaps more controversially, the material may persuade the judge at the final hearing that the evidence establishes to a high degree of probability that Mr Windle poses an unacceptable risk of committing another serious violence offence if a further ESO is not made. In reaching that conclusion, I have paid particular regard to the earlier judgments of this Court, particularly those two of Johnson J, [1] the remarks on sentence of Judge Garling, [2] and the risk assessment reports, including one prepared as recently as 23 March 2020, by Mr Samuel Ardasinski. I also note there is some material suggesting non-compliance, impulsivity and alcohol use that might be relevant to the issue the Judge hearing the final application will be grappling with. 6. As I have said, Mr Windle does not contest those findings and that was made clear through the cooperation of the parties and the lawyers on both sides in advance. On the assumption that I would reach those uncontested conclusions, the parties were helpful enough to provide short minutes of order. I will mark those for identification, along with my handwritten changes, as MFI 1 and I will make orders in accordance with those short minutes. 7. The hearing is being conducted by audio link. I think because of the traffic in the Court at the moment, neither counsel nor their solicitors were able to join us in the so-called virtual court facility where I would have had the pleasure of seeing their faces. But in any event, because I am doing it by audio link, I think it is appropriate that I read the orders onto the record because I note that Mr Windle is present with his solicitor and he should hear the orders being made. 8. Without opposition, the Court orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. appointing two qualified psychiatrists to conduct separate psychiatric 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 shortly. The parties agree one of those experts will be Dr Richard Furst. The parties are to agree on the second psychiatrist by the end of the week and have liberty to come back next week before me if there is any outstanding argument to be had; 2. I direct that the defendant is to attend those examinations. 1. In light of that order, and by consent, I make the following case management directions: 1. The reports of the court-appointed experts are to be furnished to the Court by 29 April 2020. 2. The plaintiff is to file and serve any evidence and submissions for the final hearing by 6 May 2020. 3. The defendant is to file and serve any evidence and submissions for the final hearing by 13 May 2020. 4. The plaintiff is to file and serve any evidence and submissions-in-reply, if any, by 22 May 2020. 5. The defendant is to advise the plaintiff of which experts are required to attend court to give evidence at the final hearing by no later than 4pm on 26 May 2020. 6. The plaintiff is to provide to the chambers of the judge allocated to preside at the final hearing a working copy of each document to be relied upon by the parties by no later than 5pm on 28 May 2020. 7. The matter is listed for final hearing on 1 June 2020 at 10am with an estimate of one day. 8. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge 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 for access. 9. Liberty to apply to relist the matter on one day's notice.