Bugmy v State of New South Wales

[2017] NSWCA 25

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bugmy v State of New South Wales [2017] NSWCA 25
Hearing dates:	15 February 2017
Date of orders:	15 February 2017
Decision date:	24 February 2017
Before:	Basten JA at [1]; Gleeson JA at [9]; Payne JA at [10].
Decision:	Appeal dismissed
Catchwords:	APPEAL – high risk violent offender –continuing detention order under the Crimes (High Risk Offenders) Act 2006 (NSW) – whether primary judge erred in determining the length of the continuing detention order – whether primary judge failed to give adequate reasons
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 5E, 5F, 5G, 11, 17, 18, 19 Mental Health Act 2007 (NSW), Pt 3
Cases Cited:	Anderson v State of New South Wales [2016] NSWCA 86 Attorney-General (Qld) v Francis [2006] QCA 324 Attorney-General v Wilde [2008] NSWSC 14 Keith v Gal [2013] NSWCA 339 Lynn v State of New South Wales [2016] NSWCA 57 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 State of New South Wales v Bugmy (No 2) [2016] NSWSC 1432 State of New South Wales v Davis [2008] NSWSC 664 State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of New South Wales v Manners [2008] NSWSC 1367
Category:	Principal judgment
Parties:	Damien Charles Bugmy (appellant) State of New South Wales (respondent)
Representation:	Counsel: Mr D Buchanan SC / Ms G Lewer (appellant) Mr G P Craddock SC / Mr P Aitken (respondent)   Solicitors: Legal Aid NSW (appellant) Crown Solicitor’s Office (respondent)
File Number(s):	2016/322597
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2016] NSWSC 1432 Date of Decision: 07 October 2016 Before: Button J File Number(s): 2016/210721

headnote

[This headnote is not to be read as part of the judgment]

The State applied for a continuing detention order against Mr Damien Bugmy under s 5G of the Crimes (High Risk Offenders) Act 2006 (NSW). The State also sought an extended supervision order under s 5F of the Act, to come into force after the expiry of the continuing detention order.

The primary judge found that Mr Bugmy was a “high risk violent offender” as defined in s 5E(2) of the Act, namely a violent offender who the Court is satisfied to a high degree of probability “poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision”. The primary judge held that adequate supervision would not be provided by an extended supervision order under s 5G(1) of the Act. Accordingly, his Honour made a continuing detention order for a period of 12 months, to be followed by an extended supervision order for a period of 3 years.

Mr Bugmy appealed, submitting that the primary judge (a) erred in determining the appropriate length of the continuing detention order by failing to consider on the evidence when adequate supervision could be provided by an extended supervision order, and (b) erred in failing to give reasons for fixing the length of the continuing detention order at 12 months.

Held per Payne JA (Basten and Gleeson JJA agreeing)

(1) His Honour did not err in fixing a 12 month period, as this would provide Mr Bugmy sufficient time to demonstrate that his behaviour was suitable to live at a residential facility where he could be subject to an “extended supervision order” under s 5F of the Act: at [45].

(2)   In determining the length, his Honour carefully considered accommodation options available to Mr Bugmy “in the near future” in light of the evidence of the risk Mr Bugmy posed to the community: at [46]-[49].

(3) No evidence was led on the appeal that circumstances concerning the availability of accommodation had changed: at [52].

Lynn v State of New South Wales [2016] NSWCA 57 at [97] applied

(4) His Honour gave adequate reasons for his findings in relation to the unsuitability of the available accommodation options to provide an appropriate degree of supervision required for Mr Bugmy, which were critical to the determination of the 12 month period: at [59].

(5) Before the primary judge there was no issue between the parties about the appropriate length of any continuing detention order: at [60].

Keith v Gal [2013] NSWCA 339 at [112], [114]-[115] applied

Judgment

1. BASTEN JA: On 20 September 2016 Button J made a “continuing detention order” in relation to Damien Charles Bugmy, under s 5G of the Crimes (High Risk Offenders) Act 2006 (NSW) (“High Risk Offenders Act”). [1] On 15 February 2017, this Court dismissed an appeal by Mr Bugmy against that order. The only substantive challenge went to the supposedly “arbitrary” selection of a 12 month period for the duration of the order. (A second ground challenged the adequacy of the reasons given by the primary judge.) It was not in dispute that some form of continuing detention or supervision was required. It was not in dispute in this Court that a continuing detention order was appropriate initially. I agree with the reasons given by Payne JA for dismissing the appeal.

   1. State of New South Wales v Bugmy (No 2) [2016] NSWSC 1432.

2. As explained by Payne JA, the purpose of the 12 month period was to provide sufficient time within which the appellant might be able to demonstrate that he was sufficiently adapted and amenable to living in the community that he would be accepted in a facility, such as the Nunyara Community Offender Support Program, where he could be subject to an “extended supervision order” under s 5F of the Act.

3. Such post-custodial regimes apply to “high risk violent offenders”. That characterisation covers persons over 18 years of age who have been sentenced to imprisonment for a “serious violence offence” and as to whom the Supreme Court is satisfied “to a high degree of probability” that the offender poses “an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.”[2]

   2. High Risk Offenders Act, s 5E(2).

4. The circumstances in which a person may satisfy that characterisation will be variable. In most cases there will be a history of violent offending, but that may not always be so. In some cases there may be a small number, or even a single, serious violence offence where the high risk of further offending results from a deterioration, possibly into mental illness and possibly during a lengthy period of incarceration. Such cases may give rise to a question as to whether such a person is best dealt with under the provisions of the High Risk Offenders Act, or under the provisions of the Mental Health Act 2007 (NSW).

5. The present case does not fall into the latter category, but rather the former; the appellant has a lengthy record of violent offending. In such a case, the only plausible method for reducing an unacceptable risk to the community may be for the person to accept medication and abstain from unlawful drugs. In some cases, other forms of psychiatric treatment may be proposed. However, there will always be a doubt as to whether any form of treatment will be maintained voluntarily, coupled with a doubt that treatment inside a prison will be effective. In circumstances where a person may qualify within the terms of the Mental Health Act for involuntary admission, detention and treatment in a mental health facility, there is much to be said for the view that he or she should be dealt with under that legislation, rather than under a scheme for the protection of the community as an adjunct to Corrective Services.

6. The Mental Health Act has a sophisticated scheme for the regulation of involuntary admissions, for compulsory medication and for discharge where detention is no longer appropriate. Pursuant to Pt 3 of that Act, community treatment orders can be made which will provide for involuntary treatment for a person living in the community. Satisfaction of specific criteria is necessary before such an order is made, the application of which are well understood by psychiatrists and by the Mental Health Review Tribunal, which provides a high degree of specialist accountability in the administration of the statutory scheme.

7. These remarks do not necessarily apply to the appellant; the trial judge stated that there was some doubt as to whether he suffered from a mental illness which accounted for his impulsivity, or whether it should be primarily attributed to his dysfunctional upbringing and low intellectual abilities. [3] All that can be said with any certainty is that the appellant has been at liberty for only 10 months in the past 17 years. [4] It is tolerably clear that extended periods of incarceration have not achieved a reduction in the appellant’s violent behaviour; there is presently little evidence to support the hope that further incarceration will provide an improved outcome. If the appellant is not to face an extended period of protective custody, some alternative approach may need to be addressed.

   3.    Bugmy (No 2) at [2] and [29].

   4. Bugmy (No 2) at [26].

8. These remarks do not ignore the possibility of requiring medical treatment as a condition of an extended supervision order. However, it is by no means clear that s 11(d), which permits a direction that the person “participate in treatment and rehabilitation programs”, extends to compulsory medical treatment, or that such a condition may otherwise be imposed. The conditions imposed in the present case require the appellant to “take all medications that are prescribed to him by his healthcare practitioners”, which would appear to fall short of imposing any particular treatment regime. The comments set out above are directed to the undesirability of imposing mandatory medical treatment as a condition of an extended supervision order, assuming the power to be available.

9. GLEESON JA: My reasons for joining in the order of the Court made on 15 February 2017 accord with those of Payne JA. I also agree with the additional remarks of Basten JA.

10. PAYNE JA: On 15 February 2017 the Court made an order dismissing the appeal in this matter. What follows are my reasons for joining in that order.

Overview

11. On 7 April 2011 the appellant was convicted of manslaughter of his de facto partner and sentenced by McCallum J to a term of imprisonment for eight years and three months. A non-parole period of five years and six months was fixed, with an additional term of two years and nine months. The appellant was not granted parole. His sentence expired on 13 September 2016.

12. On 12 June 2016, the respondent applied for a continuing detention order pursuant to s 5G of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), which confers power on the Supreme Court to make orders for the continuing detention of “high risk offenders” who have served their prison sentence in full. In addition, the respondent sought an extended supervision order under s 5F of the Act, to take effect after the expiry of the continuing detention order.

13. On 16 August 2016, McCallum J made preliminary orders:

1. for the preparation of two psychiatrist reports about the appellant; and

2. imposing an interim detention order of 28 days which commenced on 13 September 2016 and expired on 10 October 2016.

14. On 23 September 2016 the matter came before Button J. The respondent sought a continuing detention order of 18 months, to be followed by an extended supervision order of 3 years and 6 months. In the alternative, the respondent sought an extended supervision order of 5 years. On 30 September 2016, Button J made the following orders:[5]

(1)   The defendant is subject to a continuing detention order for a period of 12 months commencing on 10 October 2016 and expiring on 9 October 2017.

(2)   The Court is to issue a warrant for the committal of the defendant to a correctional centre for the period specified in order 1.

(3)   The defendant is subject to an extended supervision order for a period of 3 years from the date of the expiry of the continuing detention order. To express my order another way, the extended supervision order is to commence on 9 October 2017, and expire on 8 October 2020.

(4)    For the period specified in order 3 above, the defendant must comply with the conditions set out in the Schedule to the Summons of 12 July 2016.

5. State of New South Wales v Bugmy (No 2) [2016] NSWSC 1432.

15. On 28 October 2016, the appellant filed a notice of appeal, as of right, under s 22 of the Act.

Relevant aspects of the legislative regime

16. Division 2 of Part 1A of the Act deals with “violent offenders” who are “high risk offenders”. It provides:

Division 2 High risk violent offenders

5E   High risk violent offender

(1)    An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender.

(2)    An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.

(3)    The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence.

17. The Act provides for the making of extended supervision orders for high risk violent offenders:

5F   Extended supervision orders for high risk violent offenders

(1)    The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk violent offender.

(2)    An order made under this section is an extended supervision order.

(3)    An extended supervision order made under this section may also be referred to as a high risk violent offender extended supervision order.

18. Section 5G(1) of the Act confers a discretionary power upon the Supreme Court to make a continuing detention order in relation to an offender who is a “high risk violent offender”, provided it is satisfied that adequate supervision will not be provided by an extended supervision order: Lynn v State of New South Wales [2016] NSWCA 57. The section provides:

5G   Continuing detention orders for high risk violent offenders

(1)    The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk violent offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.

(2)    An order made under this section is a continuing detention order.

(3)    A continuing detention order made under this section may also be referred to as a high risk violent offender continuing detention order.

19. Other provisions of the Act relevant in the present case are s 17, which contains a non-exhaustive list of mandatory considerations the Supreme Court must have regard to when making a continuing detention order or an extended supervision order in relation to a high risk violent offender, and s 19, which permits the Supreme Court at any time to revoke or vary a continuing detention order on the application of either party.

20. The grounds for revocation or variation of a continuing detention order are not closed but include circumstances where the Court is satisfied that circumstances have changed sufficiently to render the order previously made unnecessary: s 19(1B).

Decision of the primary judge

21. The primary judge found that the appellant was a “violent offender” by reason of his manslaughter conviction and lengthy history of violence. Six of his fourteen convictions of violence involved stabbing, the most recent of which was fatal. The appellant was found to be a “high risk violent offender”, based upon the primary judge being satisfied to a high degree of probability that he would pose an “unacceptable risk” of committing a serious violence offence if, at the completion of his sentence, he were not kept under supervision: s 5E(2). There is no appeal from that aspect of his Honour’s decision.

22. The primary judge made a continuing detention order for a period of 12 months commencing on 10 October 2016 and expiring on 9 October 2017, to be followed by an extended supervision order for a period of 3 years, commencing from the date of the expiry of the continuing detention order.

23. The appellant accepted below, and in this Court, that it was appropriate for the primary judge to make a lengthy extended supervision order. The issue before the primary judge was whether he should first make a continuing detention order, as the respondent submitted he should.

24. In addressing the issues as presented to him, the primary judge relied upon two reports by court appointed psychiatrists, Dr Martin and Dr O’Dea, and their supplementary oral evidence presented at trial. He made findings about the evidence at paragraphs [37]‑[44].

25. Both experts assessed the appellant as posing a high risk of committing future violence. Both expressed the view that therapy in custody would be of no great assistance to the appellant. Both also noted the use of alcohol as playing a significant role in elevating the risk of future acts of violence. Both emphasised the importance of the continued use of a mood-stabilising medication for managing the risk that the appellant presented. Both recommended prescribing the appellant with medication designed to reduce his dependence upon alcohol.

26. The key to providing the close and constant degree of supervision required was the residential accommodation options available to the appellant. The evidence about accommodation before the primary judge was summarised by his Honour as follows (at [46]‑[53]):

1. the relevant Community Offender Support Program (“COSP”) accommodation and the newer Integration Support Centre would not accept the appellant because of his untreated proclivity for violence;

2. the appellant would not be considered suitable for virtually all otherwise suitable residential drug and alcohol rehabilitation centres because he was continuing on the methadone program and there is a policy against accepting patients who are participating in opioid replacement therapy.

27. Both experts assessed the appellant as presenting a significant risk of committing further acts of violence, regardless of the setting in which he was placed. Neither expressed optimism about the appellant’s prospects of rehabilitation in the community. In addressing the question of the adequacy of supervision, the primary judge was plainly heavily influenced by the close and constant degree of supervision over many years that the court appointed psychiatrists had recommended to mitigate the risk of violence. In oral evidence Dr Martin stressed that the close and constant degree of supervision of the appellant he recommended would need to be provided over years and not months: Tcpt, p 20(42)-(45). Dr O’Dea agreed that the supervision and monitoring he was recommending were likely to be required for years rather than months. He suggested, however, that if the appellant was “managing very well” after 6 to 12 months in the COSP facility he would be prepared to consider recommending less restrictive care and supervision of the appellant: Tcpt, p 33(15)-(25).

28. At least in the short to medium term the only potentially suitable residential facility identified in the evidence willing to accept the appellant was Rainbow Lodge in Glebe. Ms Recquel Smith, a Senior Community Corrections Officer who would supervise the appellant, opined that she would be quite “comfortable” with him living there: Tcpt, p 51.

29. The evidence disclosed that Rainbow Lodge:

1. provided residential accommodation for men who had recently been released from custody;

2. was prepared to provide residential accommodation for the appellant for three months;

1. provided drug and alcohol counselling every two weeks; and

2. provided a degree of supervision but acknowledged that the appellant would have times when he was “left to his own devices”.

30. The primary judge found at [70]:

“[70] Whilst I unreservedly accept the good intentions of those who run Rainbow Lodge, and give due deference to the optimism of Ms Smith, I think that, regrettably, if released to that facility the defendant could present a very real risk of violence to members of the community. And I include in that class of person other residents of Rainbow Lodge.”

31. In so finding, his Honour was satisfied that the level of supervision and monitoring available to the appellant at Rainbow Lodge was much less than was required for the appellant. The primary judge did not accept that Rainbow Lodge was sufficiently rigorous to give effect to the primary purpose of the Act to ensure the safety and protection of the community. His Honour found that Rainbow Lodge was not a therapeutic, closed community like a residential drug and alcohol rehabilitation centre. Nor was it a highly structured place like a COSP. The primary judge was satisfied that adequate supervision would not be provided by an extended supervision order in circumstances where Rainbow Lodge was to provide the appellant’s accommodation: at [67]. His Honour concluded that it was “imperative” that the appellant obtain very intense help with regard to the abuse of alcohol and prohibited drugs: at [69]. His Honour found that therapy every two weeks as provided by Rainbow Lodge did not come close to approaching what was required: at [69].

32. The evidence before the primary judge about the appellant’s participation in a violent offenders’ program was contained in a report by Dr Parker dated 31 May 2016. The appellant commenced the Self Regulation Program: Violent Offenders (“SRP: VO”) program in April 2016 and was estimated to complete it as early as April 2017 and as late as October 2017. However, the appellant was suspended from this program for a month for assaulting a custodial officer. At the time of hearing before the primary judge the appellant had been re-admitted and was undertaking the SRP: VO program. The primary judge specifically rejected the respondent’s submission that the completion of violence prevention courses in prison provided any basis for making a continuing detention order.

33. There was no issue between the parties before the primary judge about the length of any continuing detention order. The appellant’s case below was that he was suitable for release to Rainbow Lodge under an extended supervision order and that no continuing detention order should be made. That case was rejected by the primary judge. The respondent’s case was that a continuing detention order of 18 months should be imposed. The appellant presented no fall back argument to the primary judge that if a continuing detention order were appropriate, it should be for any particular period of time. The primary judge rejected the respondent’s submission that 18 months was appropriate.

34. In fixing a continuing detention order for 12 months the primary judge found that this was sufficient in the circumstances of this case. His Honour, in fixing the period of 12 months, made specific reference to the powers in the Act to vary or revoke orders he had made if the “length of the CDO… imposed by me is thought to be inappropriate in due course. In those circumstances I think I should err on the side of brevity with regard to the length of periods of deprivation or diminution of liberty”: at [78].

Grounds of appeal

35. The grounds of appeal were as follows:

1. His Honour erred in determining the appropriate length of the continuing detention order by failing to consider on the evidence when adequate supervision could be provided by an extended supervision order.

2. His Honour erred in failing to give reasons for fixing the length of the continuing detention order at 12 months.

Appellant’s submissions

36. Mr D Buchanan SC who appeared with Ms G Lewer for the appellant, accepted that the primary judge was correct to find that the appellant was a high risk violent offender and that an extended supervision order under s 5F of the Act was required.

37. Counsel also accepted in this Court that his Honour had not erred in making a continuing detention order. That is, it was accepted that his Honour was entitled to be satisfied that adequate supervision will not be provided by an extended supervision order, for at least some period. The error, it was submitted, was in making the order for a period of 12 months. The appellant submitted that the appropriate course was for this Court to set aside that order, make a further interim detention order, and remit the matter to the primary judge.

38. It was submitted that the primary judge was required by s 5G of the Act to fix a period of continuing detention for no longer than the period he was satisfied that adequate supervision will not be provided by an extended supervision order. The appellant’s argument about why it was that his Honour had not applied that test may be summarised as follows:

1. His Honour failed to consider accommodation options available to the appellant “in the near future”.

2. The length of the continued detention order imposed was “arbitrary and not based on the evidence” and the primary judge gave no reasons as to why a period of 12 months was necessary.

3. His Honour implicitly found that adequate supervision would be available in 12 months as the appellant could then be released to the Nunyara COSP facility. The primary judge did not “nominate any milestones” for the appellant’s rehabilitation prior to being released on an extended supervisory order.

4. His Honour held that the Nunyara COSP facility would provide adequate supervision, but proceeded on the basis that it would not be available for another 12 months, and as such His Honour failed to consider whether circumstances would change at an earlier date.

5. The primary judge should have imposed a continuing detention order for the “shortest period of time” until the appellant could be reassessed for accommodation at the Nunyara COSP facility. In support of this submission, the appellant relied on the case of State of New South Wales v Davis [2008] NSWSC 664, where Price J held that although adequate supervision could not be provided until suitable accommodation was found, his Honour was satisfied that the Nunyara COSP centre at Malabar would be suitable once it opened.

39. It was also submitted in writing that His Honour did not apply the threshold test of “high degree of probability” as to whether supervision would not be provided by an extended supervision order. Attorney-General v Wilde [2008] NSWSC 14 at [2] was cited as authority suggesting that his Honour had erred in this respect.

40. It was submitted the constraint on the liberty of the appellant is an important consideration in determining the length of a continuing detention order: Lynn per Gleeson JA at [149]; Attorney-General (Qld) v Francis [2006] QCA 324 per Keane and Holmes JJA and Dutney J at [34]. The appellant submitted that his Honour had not taken the constraint on the liberty of the appellant into account in fixing the period of the continuing detention order.

41. In the alternative, the appellant submitted that the primary judge had failed to give reasons for fixing the length of the continuing detention order at 12 months. The principles distilled in Keith v Gal [2013] NSWCA 339 were relied upon.

42. The appellant’s submissions about the alleged inadequacy of reasons were predicated on the further submission that the Court should take account of his Honour’s conclusions about the length of the continuing detention order at paragraphs [76]-[78], but not his Honour’s earlier reasons for making the orders he did when addressing the evidence about the degree of supervision and monitoring required (at paragraphs [37]-[44]) and the reasons concerning the suitable accommodation options which were available to provide such supervision and monitoring, at paragraphs [46] and following.

Consideration

Ground one

43. It may be accepted, as the appellant submitted, that s 5G of the Act requires a court to fix a period of continuing detention for no longer than the period the Supreme Court judge is satisfied that adequate supervision will not be provided by an extended supervision order. To the extent that State of New South Wales v Manners [2008] NSWSC 1367 suggests otherwise, that decision should not be followed. To so conclude, however, does not demonstrate error on the part of the primary judge in this case.

44. The language of the section requires a prediction about future matters – “adequate supervision will not be provided”. In fixing a period of continuing detention the section requires a broad evaluative judgement of the content of “adequate supervision”[6] and of the period during which it will not be provided by an extended supervision order (subject to a statutory cap under s 18(1)(b) of five years for each separate application). The ability of both parties to seek to engage the broad power to vary and revoke a continuing detention order at any time in s 19 of the Act is important in identifying the scope of the broad evaluative judgement required in making an order under s 5G of the Act.

    6. State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [14]-[15].

45. The purpose of the 12 month period here fixed by the primary judge was to provide sufficient time within which the appellant might be able to demonstrate that his behaviour was suitable to be accepted in the Nunyara COSP (or a like program), where he could be subject to an “extended supervision order” under s 5F of the Act. The primary judge did not err in fixing a 12 month period for that purpose.

46. It is not correct that His Honour failed to consider accommodation options available to the appellant “in the near future”. In determining the question posed by s 5G(1) of whether he was satisfied that adequate supervision will not be provided by an extended supervision order, the primary judge considered carefully the evidence concerning accommodation and supervision options available and likely to be available to the appellant.

47. His Honour’s finding that if the appellant was released to Rainbow Lodge he could “present a very real risk of violence to members of the community” was not challenged on the appeal. Simply put, none of the other options for residential accommodation was, on the evidence before the primary judge, available or likely to be available during the 12 month period of the continuing detention order.

48. His Honour did not err in his consideration of Ms Munright’s evidence about the availability of the Nunyara COSP facility. Her evidence was that if a treatment program was not completed, the appellant needed to illustrate he had gained a positive insight into his offending behaviour and is performing well in his treatment program before admission into a COSP facility would be re-considered. No such evidence was before his Honour. To the contrary Dr O’Dea reported that the appellant lacked insight into his own behaviour, including persistently blaming others for provoking violent reactions.

49. The length of the continued detention order imposed by the primary judge was not “arbitrary and not based on the evidence”. The reasons given by his Honour were that the period of 12 months was necessary and in fixing that period he was erring “on the side of brevity”. Given the overwhelming evidence of the risk posed to the community by the appellant and the absence of suitable accommodation options available to house him, no error was demonstrated in that approach.

50. In effect, his Honour fixed a continuing detention order being the shortest time possible on the evidence before him to enable the appellant to be re-assessed in accordance with Ms Munright’s evidence. To re-cap, that evidence was not that in three months such a re-assessment was likely or even possible. In fixing that period, his Honour was also conscious of the power to revoke or vary the order if circumstances were to change given by s 19 of the Act.

51. The primary judge did not nominate any milestones for the appellant’s rehabilitation prior to being released on an extended supervisory order because it was clear on the evidence that the appellant needed to demonstrate he has gained a positive insight into his offending behaviour and is performing well in his treatment program before admission into a COSP facility. The primary judge was in no position to identify “milestones” to be achieved within 12 months, as no evidence was before his Honour of such events by reference to dates, nor was there any statutory requirement to make this determination.

52. The submission that His Honour failed to consider whether circumstances concerning the availability of the Nunyara COSP facility would change at an earlier date should be rejected. His Honour specifically referred to the power to revoke or vary the order if circumstances were to change. If there was indeed any evidence of such a change, it could and should have been brought to the attention of this Court on the appeal: Lynn at [97] per Basten JA. The appellant led no such updating evidence in this Court.

53. The appellant’s reliance upon Davis is misplaced. In that case, involving a high risk sex offender, there was expert evidence before the court that long term rehabilitation of the offender would be best served by a structured supervision within the community. That was not the evidence in this case. Ms Munright’s evidence was that the appellant was unsuitable to be accommodated at Nunyara COSP for 2 reasons: (a) he was a threat to staff and residents and (b) he had not sufficiently completed treatment for his violent and/or offending behaviour in custody. Although it is correct that Ms Munright gave evidence orally that the appellant could be reassessed after 3 months of good conduct without the need to complete a violent offender treatment program as a precondition to COSP eligibility, on the whole of her evidence that outcome was highly unlikely.

54. The submission advanced in writing that this Court should adopt the ex tempore remarks of Price J in Wilde, to the effect that there must be satisfaction to a “high degree of probability” that supervision would not be provided by an extended supervision order, should be rejected. The state of satisfaction in s 5E(2) is the gateway to the power to make an order under s 5F or s 5G. That state of satisfaction is “to a high degree of probability”, and applies to an assessment of unacceptable risk. In contrast, the state of satisfaction in s 5G applies to the level of supervision provided by the particular extended supervision order the court has in mind. The Act requires a different level of satisfaction to be achieved in relation to s 5E, as opposed to s 5G. The question in s 5G is only reached in the event that the question posed by s 5E has been answered affirmatively: see Anderson v State of New South Wales [2016] NSWCA 86 at [16] which dealt with the same question in the context of a high risk sex offender.

55. Finally, it is clear that the primary judge took into account the constraint on the liberty of the appellant as an important consideration in determining the length of the continuing detention order. His Honour said so in terms at [78].

56. For these reasons ground one of the notice of appeal should be rejected.

Ground two

57. The submission that the primary judge failed to give adequate reasons for his decision to impose a continuing detention order of 12 months should also be rejected. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48], cited in Keith v Gal at [110], Basten JA said:

“It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.”

58. Those remarks are apposite here. The appellant’s submissions about the alleged inadequacy of reasons were predicated on the further submission that the Court should take account of his Honour’s conclusions about the length of the continuing detention order at paragraphs [76]-[78], but not his Honour’s earlier reasons.

59. In that earlier part of the judgment the primary judge gave detailed reasons for his conclusions about the degree of supervision and monitoring required by the appellant: at [37]-[44]. His Honour also gave detailed reasons for his conclusions about the unsuitability of the available accommodation options to provide such supervision and monitoring: at [46] ff. The reasons must be reads as a whole. It is clear that his Honour’s earlier reasons were critical to the determination of the 12 month period. In those circumstances ground two should be rejected.

60. Further, the authorities summarised in Keith v Gal make clear that the essential duty of the court is to give reasons for reaching conclusions about the material issues in the case: Keith v Gal at [112], [114] and [115]. It will be recalled that there was no issue between the parties before the primary judge about the length of any continuing detention order. The appellant’s case that he was suitable for release to Rainbow Lodge having been rejected the appellant presented no fall back argument that if a continuing detention order were appropriate, it should be for any particular period of time. The criticism of the primary judge’s absence of reasons is unfair in circumstances where the appellant now accepts that a continuing detention order should have been made, but did not submit below that it should have been fixed for a period less than 12 months.

61. Ground two of the notice of appeal should be rejected.

Conclusion and order

62. I agree, as the Court made clear to the parties on 15 February 2017, that if evidence were to become available that the appellant has been assessed as eligible for accommodation at the Nunyara COSP facility nothing in my reasons should be understood as affecting the rights of the parties to bring the matter back before the Supreme Court under s 19 of the Act as a matter of urgency to revoke or vary the continuing detention order.

63. For the foregoing reasons I joined in the order of the Court made on 15 February 2017:

Appeal dismissed.

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Endnotes

Amendments

27 February 2017 - Typographical errors corrected in [44], [46] and [54].

27 February 2017 - Typographical error corrected in [4].

Decision last updated: 27 February 2017