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Supreme Court 21 October 2024

State of New South Wales v Calhoun (a pseudonym) (Preliminary)

[2024] NSWSC 1311

Assault & violenceFirearms & weaponsPublic order & justice offences
HIGH RISK OFFENDER PRELIMINARY HEARING APPROPRIATE CONDITIONS INTERIM SUPERVISION ORDER IS GRANTED VARIATION OF THE PROPOSED CONDITIONS

Citation: State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311
Court: Supreme Court of New South Wales
Date: 21 October 2024
Judge(s): Yehia J

Background

The State of New South Wales applied under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for an Interim Supervision Order (ISO) against a defendant referred to by a pseudonym. The defendant's index offence, for which he had served a sentence of full-time imprisonment, involved an armed robbery in which a victim was shot multiple times and suffered life-threatening injuries.

The defendant's parole was due to expire on 22 October 2024, at which point he would otherwise be unsupervised in the community. The defendant had a lengthy history of violent offending involving firearms, commencing in his juvenile years, and a poor record of compliance with parole conditions, with parole revoked on multiple occasions. However, at the time of the hearing, he had been in the community for approximately 20 months without reoffending, was in a stable relationship, and was gainfully employed in a trade.

The preliminary hearing required the Court to determine whether the index offence qualified as a "serious violence offence" under the Act, whether the unacceptable risk threshold was met on a preliminary basis, and what conditions should attach to any interim order.

Legal Issues

  • Whether the index offence constitutes a "serious violence offence" within the meaning of section 5A(1)(b) of the Act
  • Whether, at the preliminary hearing stage, the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision
  • Which conditions, from those proposed by the plaintiff, were appropriate and proportionate to impose on the interim order

Decision

Issue 1: Serious Violence Offence Classification

The Court held that the index offence falls within the definition of a "serious violence offence" under section 5A(1)(b) of the Act (at [44]-[45]). The analysis focused solely on the elements of the offence itself, not on the surrounding circumstances of the offending. The Court confirmed this approach facilitates the protective purpose of the Act and ensures that equivalent offences are treated consistently (at [39]). Applying the principle that one offence "necessarily comprehends" all elements of another, the index offence was found to necessarily comprehend an attempt to cause grievous bodily harm with the intention of doing so, conduct directly referred to in section 5A(1)(a) (at [44]).

Issue 2: Unacceptable Risk at Preliminary Hearing

At a preliminary hearing, the Court's task is analogous to assessing a prima facie case: it proceeds on the assumption that the asserted facts are proved and does not weigh up the documentation or predict the final outcome (at [51]). The Court found the defendant has a long history of violent offending involving firearms, commencing as a juvenile, and that his compliance with parole conditions historically had been very poor, with parole revoked on multiple occasions (at [71], [74]). Risk assessment evidence placed the defendant in a high-risk category, with the VRAG-R instrument indicating 76% of offenders with a similar score reoffended violently within five years (at [64]). The Court accepted that the defendant's risk of future violence is almost inextricably linked to whether he returns to criminal activity (at [63]), and that his risk diminishes when he is employed, financially secure, and away from antisocial associates (at [75]). Notwithstanding 20 months without reoffending and positive community indicators (at [73]), the Court was satisfied on a preliminary basis that the materials, if proved, would justify a finding to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if unsupervised (at [79]).

Issue 3: Conditions of the Interim Supervision Order

The Court declined to impose a number of conditions proposed by the plaintiff, emphasising the need to balance adequate supervision against liberty and to avoid conditions that are unjustifiably onerous or punitive (at [82]). Conditions requiring the defendant to provide a schedule of movements were rejected as extremely onerous given his work as a plumber involving unscheduled callouts (at [86]). Drug testing conditions were refused as unnecessary and intrusive given no evidence of substance abuse since 2002 (at [90]). Broad electronic search and internet monitoring conditions were also declined as disproportionate (at [93]-[94]). Conditions relating to reporting, approved accommodation, firearms and weapons prohibitions, non-association with antisocial persons, participation in the Violent Offender Therapeutic Maintenance Program, and financial disclosure were imposed, with some accepted by the defendant and others confirmed as appropriate by the Court (at [84]-[97]).

Orders Made

  • Two qualified psychiatrists or registered psychologists (or a combination) appointed to conduct separate examinations of the defendant and furnish reports to the Court by a date to be fixed
  • The defendant directed to attend those examinations
  • Interim Supervision Order imposed, commencing 22 October 2024, for a period of 28 days
  • The defendant directed to comply with conditions set out in the Schedule to the judgment for the duration of the ISO
  • Access to the Court's file restricted: no access to non-parties without leave of a judge, with parties to be notified of any such application

Key Takeaways

  • Under section 5A(1)(b) of the Crimes (High Risk Offenders) Act 2006, the classification of an index offence as a "serious violence offence" requires an assessment of the elements of the offence alone, without reference to the evidence or particular circumstances of the offending (at [39]).
  • The Supreme Court confirmed that an offence "necessarily comprehends" a listed category of serious violence where all the elements of the listed category are inherent in the elements of the index offence, a principle applied here to bring the index offence within section 5A(1)(b) for the first time in a reported decision on that subsection (at [44]-[45]).
  • At a preliminary hearing under the Act, the court does not weigh the evidence or predict the final outcome; it proceeds on the assumption the asserted facts are proved and asks whether they would, if proved, justify the unacceptable risk finding at a final hearing (at [51]).
  • Positive developments since release, including employment, stable relationships, and an absence of drug use or antisocial associations, are relevant to the conditions analysis but do not automatically defeat a preliminary risk finding where the offending history and risk scores are sufficiently serious (at [73], [79]).
  • Conditions attached to an ISO must strike a balance between supervision and personal liberty. The Court declined to impose movement schedules, drug testing, and broad search and electronic monitoring powers, finding these would be disproportionately intrusive in the circumstances and risked undermining the defendant's rehabilitation progress (at [82], [86], [90], [93]-[94]).

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-p ublication Orders Act 2010 (NSW), ss 7, 8(1)(a)
- Crimes Act 1900 (NSW), ss 29, 33A, 33(1)(b), 86(3), 98
- Crimes ( High Risk Offenders) Act 2006 (NSW), ss 3, 4, 4A, 5A, 5A(1),5A(2), 5A(2A), 5A(1)(a), 5A(1)(b), 5B, 5B(d), 5I(2), 7(4), 9 ,10A, 10C( 1), 11

Cases
- Attorney General for New South Wales v Tillman [2007] NSWCA 119
- Cornwall v Attorney General for New South Wales [2007] NSWCA 374
- Lynn v State of New South Wales [2019] NSWCA 300
- State of New South Wales v Dennis [2024] NSWSC 388
- State of New South Wales v Dillon (Final) [2018] NSWSC 1626
- State of New South Wales v French (Final) [2017] NSWSC 1475
- State of New South Wales v Holschier (No 3) [2019] NSWSC 341
- State of New South Wales v HT (Preliminary) [2023] NSWSC 249
- State of New South Wales v Kamm (Final) [2016] NSWSC 1
- State of New South Wales v McGorm (Final) [2019] NSWSC 484
- State of New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328
- State of New South Wales v Pacey [2015] NSWSC 1983
- State of New South Wales v Reed (Preliminary) [2011] NSWSC 625
- State of New South Wales v Simcock (Final) [2016] NSWSC 1805
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
- State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813
- State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367
- State of New South Wales v Windle (No 6) (Final) [2020] NSWSC 753