State of New South Wales (for the Attorney General of NSW) v Nason

[2016] NSWSC 1171

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales (for the Attorney General of NSW) v Nason [2016] NSWSC 1171
Hearing dates:	23 August 2016
Date of orders:	23 August 2016
Decision date:	23 August 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The Court orders: (1) Leave is granted to the plaintiff to file an Amended Summons. (2) Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): (a) that Dr Anthony Samuels and Patrick Sheehan be appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court by 6 October 2016; (b) the defendant attend those examinations. (3) Pursuant to section 10B of the Act, the defendant is subject to an interim supervision order from midnight on 27 September 2016 (the time at which the defendant’s sentence expires) for a period of 28 days. (4) Pursuant to section 11 of the Act, direct that the defendant comply with the conditions annexed to these orders for the period of the interim supervision order referred to in order 3 above. (5) The matter be listed on ­­­­­­­­­­­­­­­­­­18 October 2016 to hear the plaintiff’s application for a renewal of the interim supervision order referred to in order 3 above for a period of 28 days. (6) The matter be listed on ­­­­­­­­­­­­­­­­­­15 November 2016 to hear the plaintiff’s application for a further renewal of the interim supervision order referred to in order 3 above for a period of 28 days, or until judgment is delivered, whichever is sooner. (7) The plaintiff to file and serve any evidence and submissions relied upon for the final hearing by ­­­­­­­­­­­­­­22 November 2016. (8) The defendant to file and serve any evidence and submissions relied upon for the final hearing by ­­­­­­­­­­­­­­29 November 2016. (9) The matter be listed for hearing on 1 December 2016 at 10am with an estimate of one day.
Catchwords:	CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violent offender – extended interim supervision order sought– where dispute only as to conditions of order
Legislation Cited:	Crimes Act 1900 (NSW), ss 33(1)(a), 33B(1)(a) Crimes (High Risk) Offenders Act 2006 (NSW), ss 5A, 7, 10B
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff)    Brian Edward Nason (Defendant)
Representation:	Counsel: Dr H Bennett (plaintiff) A Cook (Defendant)       Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid Commission (Defendant)
File Number(s):	2016/220701

Ex tempore Judgment (revised)

1. By summons filed on 21 July 2016, the State of New South Wales seeks by way of principal relief an extended supervision order under the provisions of the Crimes (High Risk) Offenders Act 2006 (NSW) (“the Act”).

2. It is the State's case that the defendant, Brian Edward Nason, is a high risk violent offender.

3. The matter has come before me today on a preliminary hearing for the consideration of orders under s 7 of the Act and for the making of an interim supervision order under s 10B of the Act if I am satisfied that the conditions stipulated in that section are satisfied.

4. Mr Nason, by his counsel Ms Cook, accepts that those conditions are satisfied, however, disputes a number of the conditions of the interim supervision order which the State propounds. Given the narrowness of the matters in dispute, I think it appropriate that I be relatively brief in giving reasons for my decision.

Index offence and criminal history

5. By his plea of guilty, Mr Nason was convicted in the District Court on 8 March 2011 of wounding a victim with intent to do grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). That offence is a serious violence offence within the meaning of s 5A of the Act. He also pleaded guilty at the same time to using an offensive weapon, in this case a bow and arrow, with intent to intimidate contrary to the provisions of s 33B(1)(a) of the Crimes Act.

6. His Honour Judge Delaney sentenced Mr Nason to a term of imprisonment in respect of each offence which his Honour partially accumulated so that the total effective sentence, including the non-parole period, expires on 27 September 2016.

7. Mr Nason was first eligible for parole on 27 March 2014, but his first application was refused on the ground that he had not addressed his violent behaviour by participation in the Violent Offender Therapeutic Program available in custody but apparently not in the community. His reasoning was that at the time the program was offered to him he thought there would be insufficient time to complete it before he was eligible for parole, thereby delaying his release. I interpolate that may have been a misjudgement.    

8. He was not released to parole until 23 December 2015. Since then he has been subject to close supervision effectively by the extended supervision team who will supervise compliance with any order I make under the Act, and subject to conditions very much like, if not identical, to those sought by the Crown in the case at hand.

9. The evidence is that he has been very compliant with those strict conditions and has made good progress during the period of his parole. He has progressed from accommodation in the Nunyara COSP to accommodation in a boarding house at Petersham in the general community. However, I interpolate, there have been some recent adverse issues in relation to that accommodation, not of Mr Nason's making, and so he is looking for more suitable accommodation again.

10. In addition to what is referred to as the index offences, Mr Nason has other violent offences on his record. He was convicted of assaulting a shopkeeper during a shoplifting offence borne of his drug habit; he breached an AVO imposed for the protection of his parents; and there are three offences of being armed with a knife in public.

Mandatory considerations

11. I have very carefully considered the material relied upon by the State in support of its application and in particular to the annexures to the affidavit of Ms Emma Bayley, the solicitor in the Office of the Crown Solicitor with carriage of the matter.

12. In particular I have read the report of Dr Richard Parker very carefully. Dr Parker in January of this year administered a battery of actuarial tests designed to assess Mr Nason's risk of re-offending and concluded by reference to the results of those so-called static tests that the risk of re-offending is relatively high.

13. Dr Parker, by interviewing Mr Nason, has also assessed the so-called dynamic factors which may be indicative of the current risk presented by him absent close supervision and has come to a conclusion which supports the outcome of the actuarial tests.

14. I have also had regard to the psychiatric material which has been accumulated over the years since Mr Nason's offending and I have noticed the dispute about whether he is in fact suffering from a delusional condition. There is no evidence before me that he is in fact being treated by any anti-psychotic medication and although Dr Stephen Allnutt was of the view, accepted by the learned sentencing judge, that Mr Nason was suffering from a delusional condition at the time he was sentenced, Professor Greenberg, it may be said for cogent reasons, doubts the accuracy of that diagnosis. The significant relevant delusion relates to the question of whether Mr Nason was the victim of child sexual abuse. Revenge for this was said to be the motive for the index offending, although neither victim is the alleged perpretrator.

15. Professor Greenberg, perhaps somewhat obviously, observed that if Mr Nason's account is true, there is no delusion to support Dr Allnutt's diagnosis. On the material before me at this preliminary stage there is no reason to question the accuracy of Mr Nason’s account.

16. There are other issues including a history of poly-substance abuse which are of course relevant to the risk of re-offending. It is unnecessary at this stage for me to descend into any further detail.

Section 10B conditions

17. The material which I have expressly referred to, and the material to which I have found it unnecessary to refer expressly, make the following appear clear to me: Mr Nason's current supervision on parole will expire on 27 September 2016 before these proceedings are finally determined; and the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of a high risk violent offender extended supervision order, bearing in mind the high standard of proof required to support such an order. I will make that order in due course.

Appropriate conditions

18. As I have said, the real issue between the parties relates to some of the conditions that the State seeks. There was formerly an issue about proposed conditions 25, 34, 43 and 44. Conditions 25, 43 and 44 have been amended in a manner acceptable to Ms Cook. I need say nothing more about that. Dr Bennett of counsel who appears for the State has withdrawn paragraph 34 and condition 34 and I need, again, say nothing more about it.

19. The real area of dispute relates to conditions five to nine which require Mr Nason to wear electronic monitoring equipment and to provide a weekly schedule of movements prepared in very significant detail. This suite of conditions normally goes together. There is not much point in having one without the other.

20. The purpose of electronic monitoring, as is obvious, is to monitor Mr Nason's movements and provide information as to his current location. Part of the purpose is to deter him from further offending. At the same time it assists in monitoring compliance with the schedule of movement.

21. The schedule of movement is to provide structure in implementing the extended supervision team's case plan strategies to assist in his rehabilitation. It also provides, from his point of view, a need to make a plan and to adhere to it which is likely to have significant benefits in terms of his re-integration into the community as a fully functioning, law-abiding citizen.

22. I accept however that these conditions are particularly restrictive of his personal liberty. In that regard it has to be borne in mind that the purpose of the Act is based upon parliamentary contemplation of the need to restrict the general right to be at liberty in cases to which it applies.

23. I accept, as Ms Cook has argued, that a consideration of the case notes in relation to Mr Nason shows that his progress has been positive and indeed, he has very commendably complied with the conditions which have been imposed upon him as part of his parole. Indeed, I have noticed from reading the notes carefully that he has complied with the requirement to seek pre-approval of any departure from his schedule of movements, at least generally, and on the few occasions where he has deviated from it, he has had, if I may put it this way, an innocent explanation.

24. I accept the evidence that the conditions are subject to a two-monthly review by the officers responsible for Mr Nason's case and that that review itself leads to a degree of flexibility. However, s 11 of the Act puts the power to impose conditions with this Court and only conditions which this Court considers appropriate ought to be imposed. Appropriate, of course, means appropriate in terms of furthering the purposes of the legislation which include as its primary object the safety and protection of the community; and, as another purpose, encouraging rehabilitation of the offender.

25. Given that I am considering this question at this preliminary level for the purpose of making interim orders, I am of the view that considerable weight ought to be given to preservation of the status quo and in that regard, giving, for the time being at least, as it were, greater emphasis to the object of community protection over rehabilitation. In making those observations, I bear in mind that the matter will be finalised before the end of the year.

26. Having said that, I acknowledge the force of Ms Cook's submissions that allowing Mr Nason greater leeway and responsibility for his own actions and movements may well be significant in the promotion of his rehabilitation. I also bear in mind in the somewhat unusual circumstances of this case that in the past the persons at risk have been family and neighbours and that his violent offending has been very focused upon his personal circumstances.

27. Naturally his personal circumstances have changed. However, his violence against victims in the past was particularly motivated by what he regarded as a justifiable sense of grievance born of the abuse he suffered, his parents' lack of support in that matter and what he conceived as his parents' neglect of him as a child.

28. I am not suggesting in respect of all of those matters that Mr Nason's account is the only side of the story, however, once all of the evidence is in, there may be a better opportunity of more accurately assessing the particular nature of the risk presented by Mr Nason which may at a final hearing raise a real question as to whether the monitoring and schedule of movements conditions are appropriate, having regard to the purposes of the legislation.

29. In that regard I record that the State is seeking an extended supervision order for what might be regarded as a relatively limited term of 18 months. In those circumstances, doubtless steps will need to be taken to progress Mr Nason with some rapidity to a position where he no longer presents the risk that he appears to present today on the material put before me.

30. For those reasons I propose to impose in addition to the non-contentious conditions, conditions five to eight as conditions of the interim supervision order.

The Court orders:

1. Leave is granted to the plaintiff to file an Amended Summons.

2. Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) :

1. that Dr Anthony Samuels and Patrick Sheehan be appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court by 6 October 2016;

2. the defendant attend those examinations.

3. Pursuant to section 10B of the Act, the defendant is subject to an interim supervision order from midnight on 27 September 2016 (the time at which the defendant’s sentence expires) for a period of 28 days.

4. Pursuant to section 11 of the Act, direct that the defendant comply with the conditions annexed to these orders for the period of the interim supervision order referred to in order 3 above.

5. The matter be listed on ­­­­­­­­­­­­­­­­­­18 October 2016 to hear the plaintiff’s application for a renewal of the interim supervision order referred to in order 3 above for a period of 28 days.

6. The matter be listed on ­­­­­­­­­­­­­­­­­­15 November 2016 to hear the plaintiff’s application for a further renewal of the interim supervision order referred to in order 3 above for a period of 28 days, or until judgment is delivered, whichever is sooner.

7. The plaintiff to file and serve any evidence and submissions relied upon for the final hearing by ­­­­­­­­­­­­­­22 November 2016.

8. The defendant to file and serve any evidence and submissions relied upon for the final hearing by ­­­­­­­­­­­­­­29 November 2016.

9. The matter be listed for hearing on 1 December 2016 at 10am with an estimate of one day.

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Decision last updated: 25 August 2016