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Supreme Court 12 May 2022

State of New South Wales v Barlow (Preliminary)

[2022] NSWSC 569

Assault & violenceDomestic & family violencePublic order & justice offences
HIGH RISK OFFENDERS INTERIM SUPERVISION ORDERS CONDITIONS TEST FOR IMPOSITION RELEVANCE OF CONDITIONS TO RISK

Citation: State of New South Wales v Barlow (Preliminary) [2022] NSWSC 569
Court: Supreme Court of New South Wales
Date: 12 May 2022
Judge: Cavanagh J

Background

The State of New South Wales brought proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) seeking an extended supervision order (ESO) against a 31-year-old man whose parole was due to expire on 18 May 2022. Without an interim supervision order (ISO), he would have entered the community without any supervision. The preliminary hearing addressed whether an ISO should be imposed and, if so, on what conditions.

The defendant's index offence involved a serious and prolonged violent attack on a woman in a domestic setting, during which he also threatened police with a knife while holding his child. The victim suffered a traumatic brain injury, a fractured eye socket, and spent 14 days in intensive care. He was sentenced to 7 years and 9 months imprisonment with a non-parole period of 5 years and 6 months.

The defendant did not contest the making of an ISO or the requirement to attend psychiatric and psychological examinations. The dispute at the hearing concerned which specific conditions should be attached to the ISO.

Legal Issues

  • Whether the supporting documentation, if proved, would justify the making of an ESO, thereby warranting an ISO at the preliminary stage
  • Whether electronic monitoring and a weekly schedule of movements should be imposed as ISO conditions
  • Whether a condition requiring advance notification of new employment should be modified to accommodate casual or irregular work
  • Whether a condition permitting disclosure of the defendant's criminal history to domestic partners or family members was appropriate
  • Whether conditions restricting internet use and access to electronic devices were appropriate given the defendant's offending history

Decision

Issue 1: Whether an ISO was warranted

Cavanagh J confirmed the threshold test for making an ISO at a preliminary hearing: the court need not be satisfied the matters alleged will be proved, only that if proved they would justify an ESO. The court does not weigh conflicting evidence or predict the ultimate outcome at this stage (at [11]-[12]). Having regard to all the evidence, including psychological assessments placing the defendant in the high risk range for violent reoffending, the court was satisfied the matters alleged would, if proved, justify the making of an ESO (at [42]).

Issue 2: Electronic monitoring and weekly schedule of movements

The State sought conditions allowing a Departmental Supervising Officer (DSO) to direct the defendant to wear electronic monitoring equipment and to provide a weekly schedule of movements. The court rejected both conditions (at [59]-[63]). Cavanagh J reasoned that the defendant's offending was impulsive and associated with antisocial peers or the breakdown of a domestic relationship, and it was not clear how monitoring his movements would address those specific risk factors. The court also noted that imposing these conditions would be regressive given his compliance with parole since release and his progress with accommodation and employment (at [60]-[63]).

Issue 3: Advance notification of new employment

The State sought a condition requiring the defendant to notify his DSO before commencing new employment. The defendant opposed it, arguing it would prevent him from taking up casual or daily work given his limited qualifications. The court accepted the condition in principle but amended it to include the qualification "unless it is not reasonably possible for him to do so," addressing concerns about practical impediments to casual employment (at [66]-[69]).

Issue 4: Disclosure of criminal history to domestic partners

The State sought a condition permitting a DSO to disclose the defendant's criminal history to domestic partners or family members. The court rejected it. Cavanagh J held that stable relationships reduce risk factors and that impeding the defendant's capacity to form prosocial relationships could increase the risk of reoffending. There had been only one instance of serious violent offending, and the State had not established that the condition was appropriate (at [72]-[74]).

Issue 5: Internet use and electronic device conditions

The State sought 11 conditions relating to internet use and access to electronic devices (Conditions 32 to 42). The court rejected all of them (at [83]). Cavanagh J found it difficult to link these conditions to the mitigation of the defendant's specific risk factors: none of his offending had involved the internet, none had been planned, and there was nothing to suggest that access to social media or messaging applications would increase his reoffending risk. The court observed these appeared to be standard conditions often sought against sex offenders and were not shown to be appropriate here (at [80]-[83]).

Orders Made

  • Two qualified psychiatrists or psychologists (or a combination) appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court by a date to be fixed
  • The defendant directed to attend those examinations
  • The defendant subject to an interim supervision order commencing 19 May 2022 for a period of 28 days
  • The defendant directed to comply with the conditions set out in the Schedule to the judgment for the duration of the ISO (as modified by the court's rulings)
  • Non-party access to the Supreme Court file prohibited without leave of a judge, with parties to be notified of any such application

Key Takeaways

  • At a preliminary hearing under the Crimes (High Risk Offenders) Act 2006 (NSW), the Supreme Court need only be satisfied that the matters alleged would, if proved, justify an ESO. The court does not weigh evidence, resolve conflicts, or predict the ultimate result (at [11]-[12]).
  • Conditions attached to an ISO must be connected to the mitigation of the specific unacceptable risk posed by the particular offender. Identifying a general possibility that a condition might reduce risk, without regard to the individual's specific risk factors, is insufficient (at [48]-[50]).
  • Cavanagh J declined to impose electronic monitoring and movement scheduling conditions where the offender's violence was impulsive and situationally driven, finding the nexus between those conditions and the identified risk factors was not established (at [62]-[63]).
  • A condition permitting disclosure of an offender's criminal history to domestic partners was rejected on the basis that it could impede rehabilitation and the formation of prosocial relationships, which themselves operate as risk-reducing factors (at [72]-[74]).
  • Conditions restricting internet access and electronic device use, which are commonly sought in proceedings involving sex offenders, were found inappropriate for a violent offender whose offending history bore no connection to internet use or online activity (at [80]-[83]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483
- State of New South Wales v Ali [2010] NSWSC 1045
- State of New South Wales v Burns [2014] NSWSC 1014
- State of New South Wales v Holschier (No 2) [2018] NSWSC 1921
- State of New South Wales v Sturgeon [2019] NSWSC 559
- State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776
- Wilde v State of New South Wales [2015] NSWCA 28; [2015] 249 A Crim R 65