Citation: State of New South Wales v Holschier [2014] NSWSC 867
Court: Supreme Court of New South Wales
Date: 27 June 2014
Judge(s): Adams J
Background
The State of New South Wales applied to the Supreme Court under the Crimes (High Risk Offenders) Act 2006 (NSW) for orders relating to the defendant, a man convicted of murder and grievous bodily harm in 1991. His sentence had been redetermined to 25 years with a non-parole period of 17 years, making him first eligible for parole in September 2006. The State sought to have two clinicians appointed to examine the defendant and, more significantly, sought either an interim continuing detention order or an interim supervision order to apply upon his release.
The defendant had been released on parole three times and his parole had been revoked on each occasion for breaching parole conditions. His index offences arose from a domestic situation in which he killed his wife by striking her repeatedly with a house brick and caused severe brain damage and impaired sight to his then thirteen-month-old daughter using the same brick.
Legal Issues
- Whether the court should make an interim continuing detention order or an interim supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW)
- Whether the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or continuing detention order (the threshold test for interim orders)
- Whether to appoint one psychiatrist and one psychologist, or two psychiatrists, to conduct examinations of the defendant
Decision
Issue 1: Threshold for interim orders
The applicable test at the interim stage is not to predict the ultimate outcome but to assess whether, on a prima facie basis, the matters alleged would if proved justify either a continuing detention order or an extended supervision order (at [5]). Adams J was satisfied that this threshold was met. The defendant's index offences were sufficient to establish him as a violent offender, and a risk assessment by a senior specialist psychologist at Corrective Services NSW placed him in the high risk category of violent offending relative to other male violent offenders (at [9]).
Issue 2: Detention order versus supervision order
Adams J declined to make an interim continuing detention order and instead made an interim supervision order. His Honour accorded significance to the views of both the State Parole Authority and the Serious Offenders' Review Council, each of which had formed the view that the defendant should be released on parole (at [10]). Those bodies possessed specialised experience and had dealt with the defendant on multiple prior occasions. The court was not persuaded that the level of risk demonstrated by the defendant's history or the psychological material justified the more restrictive detention order at the interim stage (at [11]).
Adams J also observed that, while the risk of repeated domestic violence is well recognised, murders committed in domestic situations are very rarely repeated, a factor relevant to the overall risk assessment at this stage (at [9]).
Issue 3: Composition of examining clinicians
There was a dispute between the parties as to whether two psychiatrists or one psychiatrist and one psychologist should be appointed. Adams J accepted the plaintiff State's proposal that one psychiatrist and one psychologist be appointed (at [12]).
Orders Made
- Dr Katie Seidler and Dr Richard Furst appointed under section 15(4) of the Act to conduct separate examinations of the defendant and furnish reports to the court by 22 August 2014; the defendant directed to attend those examinations.
- Pursuant to section 10B of the Act, the defendant to be subject to an interim supervision order (on conditions set out in the Schedule) for 28 days from the date of his release from lawful custody.
- Matter listed on 25 July 2014 for the plaintiff to apply for a further interim supervision order.
- Plaintiff to file and serve evidence by 29 August 2014; defendant by 12 September 2014.
- Plaintiff to file and serve submissions by 17 September 2014; defendant by 22 September 2014; plaintiff in reply by 24 September 2014.
- Matter listed for hearing on 25 September 2014, estimated at one day.
- Liberty to apply to relist on one day's notice.
Key Takeaways
- At the interim stage under the Crimes (High Risk Offenders) Act 2006 (NSW), the court is not required to predict the final outcome but only to be satisfied on a prima facie basis that the matters alleged would, if proved, justify either a continuing detention order or an extended supervision order (at [5]).
- Even where a prima facie case is established, the decision to make an interim detention order rather than the less restrictive supervision order remains discretionary, and the court may decline to make a detention order if the evidence does not justify it at that stage (at [11]).
- The views of the State Parole Authority and the Serious Offenders' Review Council carry weight in the Supreme Court's assessment, particularly where those bodies have specialised expertise and direct familiarity with the individual, although their views are not binding (at [10]).
- Under s 5E of the Act, commission of the index offences may be sufficient to establish that a person is a "violent offender," but the court must still assess separately whether the required high degree of probability of unacceptable risk is made out (at [5]-[6]).
- In assessing risk for violent offenders, the court noted that domestic murders are very rarely repeated, distinguishing the risk profile of violent offenders from that of sexual offenders where research on risk prediction is more developed (at [9]).
Legislation and Cases Referenced
Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- State of New South Wales v Richardson (No 2) [2011] NSWSC 276; A Crim R 220