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Supreme Court 9 February 2022

State of New South Wales v Costigan (Final)

[2022] NSWSC 86

Public order & justice offences
HIGH RISK OFFENDERS EXTENDED SUPERVISION ORDERS APPLICATION DETERMINATION OF RISK CONSIDERATION OF CRIMINAL HISTORY WHERE ONLY ONE SERIOUS VIOLENCE OFFENCE

Citation: State of New South Wales v Costigan (Final) [2022] NSWSC 86
Court: Supreme Court of New South Wales
Date: 9 February 2022
Judge(s): Adamson J

Background

The State of New South Wales applied for a three-year extended supervision order (ESO) against the defendant, a man with a significant history of violent offending and chronic substance abuse. The application was brought under the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant had served a sentence of full-time imprisonment following his conviction for recklessly inflicting grievous bodily harm in company, which qualified as a serious violent offence under the Act.

The defendant's history included repeated cycles of release from custody, relapse into illicit drug use, and further violent conduct. Upon his most recent parole release in April 2020, he again breached conditions by using prohibited drugs and assaulting an intimate partner. In October 2021, an interim supervision order (ISO) was made, but the defendant proceeded to breach it multiple times in rapid succession, including cutting off his electronic monitoring equipment and absconding for approximately two weeks before being located in December 2021.

At the time of the final hearing, the defendant was in custody on remand for various outstanding charges. His supervising officer proposed residential drug rehabilitation as a key intervention, but considered it unlikely to be accessed without the structure of an ESO.

Legal Issues

  • Whether the defendant posed an unacceptable risk of committing a "serious offence" as defined under the Act, to the requisite standard of a high degree of probability, such that the threshold for making an ESO under s 5B(d) was met
  • Whether, given that only the index offence met the statutory definition of "serious violence offence," the defendant's broader pattern of violent conduct could nonetheless satisfy the threshold
  • Which specific conditions should be included in the ESO, particularly regarding internet access and notification of changes to physical appearance

Decision

Issue 1: Threshold requirement under s 5B(d)

The defendant's counsel accepted that the evidence established a high risk of further violent offending, but argued the court could not be satisfied to a high degree of probability that any future offence would meet the statutory definition of "serious offence." The argument rested on the index offence being an outlier from the defendant's usual pattern, committed in company against an adult male, rather than the domestic assaults more typical of his conduct (at [43]).

Adamson J rejected this argument. Her Honour noted that the statutory definition of "serious violence offence" requires death or grievous bodily harm to result, but requires only an intention to cause actual bodily harm, or recklessness as to such harm. This means whether an assault crosses the threshold is often a matter of chance: the hardness of a surface, whether a blow causes a laceration or a fracture, or whether bleeding can be controlled (at [44]). Her Honour found that the defendant's established assaults, including punching victims in the head on multiple occasions both in custody and in the community, each carried a substantial risk of causing grievous bodily harm. The past strongly indicated future conduct of the same kind, and there was an overwhelming likelihood, bordering on certainty, that without supervision the defendant would continue to commit such assaults. On that basis, the court was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious offence (at [46]).

Issue 2: Whether an ESO should be made

Having found the threshold satisfied, the court turned to whether an ESO was appropriate. The defendant's counsel accepted that, if the threshold was reached, an ESO was the proper response. Adamson J noted that the ISO had demonstrated its own value: it detected drug use that would otherwise have gone undetected, and enabled monitoring of the defendant's conduct. Without an ESO, the court found, there was no adequate mechanism to support or compel participation in residential rehabilitation (at [47]).

Issue 3: Conditions of the ESO

Two categories of additional conditions were disputed. First, conditions relating to internet access had been excluded by Dhanji J at the ISO stage because there was then no evidence the defendant used the internet. However, the defendant's subsequent communication with LW via Facebook Messenger demonstrated internet use, making the earlier distinction redundant. The court included the internet-related conditions in the ESO (at [52]). Second, conditions requiring the defendant to notify his supervising officer of changes to his physical appearance and to permit photographing were considered necessary given the defendant's successful evasion of detection for approximately two weeks after absconding in December 2021. A condition requiring prior approval before any change in appearance was considered excessive; the court substituted a requirement to notify within 12 hours (at [54]).

Orders Made

  • A three-year extended supervision order made in respect of the defendant from the date of the order, on the conditions set out in the Schedule of Conditions
  • The defendant directed to comply with those conditions for the duration of the ESO
  • Access to the Supreme Court's file restricted so that no non-party may access any document without leave of a judge, with parties to be notified of any such application

Key Takeaways

  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), the statutory definition of "serious violence offence" turns significantly on the consequences suffered by the victim rather than on the precise mental state or method of the offender. Because whether an assault produces grievous bodily harm can be a matter of physical chance, a pattern of serious but sub-threshold assaults can satisfy the serious offence threshold for an ESO (at [44]-[46]).

  • The Supreme Court confirmed that the threshold in s 5B(d) requires satisfaction to a high degree of probability of an unacceptable risk, but does not require that every past offence individually meet the definition of "serious offence." The cumulative risk across a pattern of violent conduct is the relevant consideration (at [46]).

  • Conditions excluded from an ISO at the preliminary hearing stage may appropriately be included in a final ESO where post-ISO conduct reveals new circumstances that make those conditions necessary (at [52], [54]).

  • Where a defendant has previously absconded and evaded detection for a significant period, conditions requiring notification of changes to physical appearance within a defined timeframe are proportionate and necessary, but conditions requiring prior approval before any such change may be excessive (at [54]).

  • The demonstrated value of monitoring under an ISO, including detection of drug use and the prospect of facilitating access to residential rehabilitation, constitutes relevant evidence supporting the making of a final ESO (at [47]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW) , ss 3, 4A, 5A, 5B, 5I, 9
- Crimes Act 1900 (NSW), s 35

Cases
- Minister for Immigration v Guo (1997) 191 CLR 559; [1997] HCA 22
- State of New South Wales v Costigan (Preliminary) [2021] NSWSC 1386