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Supreme Court 3 March 2023

State of New South Wales v Ryan

[2023] NSWSC 236

Assault & violence
HIGH RISK OFFENDER

Citation: [2023] NSWSC 236
Court: Supreme Court of New South Wales
Date: 3 March 2023
Judge: Fagan J

Background

The State applied for an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of a 42-year-old man with a lengthy history of violent offending. The defendant had been convicted in 2021 of recklessly inflicting grievous bodily harm after striking a victim in the face with a tomahawk, causing severe and permanent injuries including facial disfigurement, permanent speech impairment, and nerve damage. He had been re-arrested in early 2022 for further offences, resulting in parole revocation and a subsequent prison sentence.

The matter came before the Supreme Court for a preliminary hearing to determine whether an interim supervision order should be made pending a final hearing, and to appoint psychiatric and psychological experts to assess the defendant. The defendant had a history of cognitive difficulties, psychiatric disorders, and prolonged illicit drug use, all of which had been acknowledged at sentencing for the index offence.

A secondary dispute arose over the form in which any supervision order conditions should be expressed. The defendant's legal representatives proposed that conditions be drafted in informal "plain English," using first-person language, slang, and illustrations, to accommodate the defendant's low cognitive functioning. The State opposed this approach.

Legal Issues

  • Whether the matters alleged in the State's documentation would, if proved, justify the making of an extended supervision order under s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW)
  • Which conditions should be imposed on the interim supervision order, including disputes about electronic monitoring, weapons possession, and healthcare information sharing
  • Whether the conditions of the interim supervision order should be expressed in informal "plain English" with first-person language, slang, and illustrations, rather than formal legal language

Decision

Issue 1: Justification for an Extended Supervision Order

The court had no difficulty concluding that the matters alleged would, if proved, justify the making of an extended supervision order (at [4]). The defendant's significant record of violent offending from before adulthood, combined with the severity of the index offence, his low cognitive functioning in the 18th percentile, his psychiatric disorders, and his prolonged illicit drug use, collectively established that the high-degree-of-probability threshold in s 5B(d) could be met at a final hearing (at [8]-[9]). The defendant did not oppose this finding (at [4]).

Issue 2: Disputed Conditions

The court rejected the proposed conditions requiring electronic monitoring and movement scheduling (conditions 5 to 8). Because the defendant's past violent acts were universally unpremeditated and impulsive, tracking his movements would not assist in reducing the risk to the community. The court also found that intensive contact with Community Corrections officers through monitoring mechanisms was likely to exacerbate, rather than reduce, poorly controlled aspects of his behaviour (at [13]).

On the weapons prohibition, the court accepted the defendant's request to extend the exception for domestic knives to include knives ordinarily used for fishing or camping when possessed for those legitimate purposes (at [14]).

Regarding healthcare information sharing, the court limited what providers could disclose to the supervising officer. Disclosure was confined to attendance records, frequency and reliability of consultations, and observable deterioration in drug abstention, compliance with the weapons prohibition, or mental health stability. Confidential background information shared by the defendant with his healthcare providers was excluded from the scope of permissible disclosure (at [16]-[17]).

Issue 3: Form of Court Orders

The court firmly rejected the proposal to express supervision order conditions in first-person language, slang, and illustrations. Fagan J held that formal legal language is the proper medium for court orders entered on the record, and that the precision of orders must not be compromised to accommodate a party's lack of facility in English or legal language (at [22]-[24]). The responsibility to explain orders to a client rests with solicitors and counsel as officers of the court, who may also enlist friends, relatives, or social workers to assist. The court expressed the view that producing an informal or illustrated paraphrase of conditions is a matter for the defendant's legal representatives after orders are pronounced, not a function of the court itself (at [24]). Fagan J characterised the "plain English" drafting as an "unnecessary and unacceptable innovation" for court record purposes, and declined to follow other Common Law Division judges who had adopted the approach (at [29]).

Orders Made

  • Two qualified psychiatrists and/or registered psychologists appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court by a date to be fixed, with the defendant required to attend those examinations.
  • Interim supervision order made pursuant to s 10A of the Act, commencing midnight 25 March 2023 for a period of 28 days, with conditions settled by the court.
  • Leave granted to the parties to approach the registrar to list the matter in the High Risk Offender list for the purposes of fixing a final hearing date, a date for expert reports, identifying the experts, and addressing any other interlocutory matters.

Key Takeaways

  • Under s 7(4) of the Crimes (High Risk Offenders) Act 2006, a court at a preliminary hearing assesses whether the matters alleged would, if proved, justify an extended supervision order. Here, an extensive history of impulsive violence, serious cognitive and psychiatric difficulties, and prolonged drug use collectively satisfied that threshold (at [4], [8]-[9]).

  • Electronic monitoring and movement-scheduling conditions are not automatically appropriate in high-risk offender proceedings. Where a defendant's history shows uniformly unpremeditated and impulsive violence, such conditions may bear no rational relationship to the risk sought to be managed and may, in fact, be counterproductive (at [13]).

  • The court's restriction on healthcare information sharing reflects a distinction between operational information (attendance, observable deterioration) and confidential therapeutic content. Conditions requiring consent to disclosure must be calibrated to what is genuinely necessary for supervision, not drafted to allow broad access to clinical records (at [16]-[17]).

  • Fagan J held that solicitors and counsel bear the responsibility of explaining formal court orders to their clients in terms they can understand. This function does not fall on the court itself, and does not justify recasting orders in first-person language, slang, or illustrated form on the court record (at [24]).

  • The decision creates a documented point of difference among Supreme Court judges on the "plain English" drafting practice. While several other Common Law Division judges had previously approved informally expressed supervision order conditions, Fagan J declined to follow that approach, treating formal legal language as an essential requirement of court records (at [22], [29]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes Act 1900 (NSW)

Cases
- State of New South Wales v Harlow (Final) [2021] NSWSC 1278