State of New South Wales v Barlow (Final)

[2022] NSWSC 1069

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Barlow (Final) [2022] NSWSC 1069
Hearing dates:	2 August 2022
Decision date:	11 August 2022
Jurisdiction:	Common Law
Before:	Button J
Decision:	Extended supervision order for two years imposed
Catchwords:	HIGH RISK OFFENDER – application for extended supervision order for three years – limited criminal record – one very significant incident of explosive violence – young Aboriginal man – incarcerated for over 8 years – successful time on parole and on interim supervision order – ESO called for – 2 years appropriate – inappropriate to impose more rigorous conditions as sought – potential to be regressive and criminogenic – continuing unacceptable risk despite positive signs – extended supervision order imposed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	State of New South Wales v Barlow (Preliminary) [2022] NSWSC 569
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Charles Cameron Barlow (Defendant)
Representation:	Counsel: K Curry (Plaintiff) H Blake (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2022/51875
Publication restriction:	Nil

Judgment

Introduction

1. This judgment brings to a conclusion the proceedings brought by the State of New South Wales (the plaintiff) against Mr Charles Cameron Barlow (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. In a nutshell, the plaintiff has sought a three year extended supervision order (ESO) with conditions against the defendant. The defendant, who was represented by solicitor and counsel, has not opposed the imposition of an ESO. It has been expressly conceded on his behalf that all statutory requirements for the making of such an order have been fulfilled, including the “fulcrum test” to be found in s 5B of the Act. Nor was it submitted that there was any basis upon which I would exercise my discretion not to impose such an order.

3. The only disputes between the parties requiring resolution are whether the ESO should extend for three years or, as submitted by the defendant, for no more than 18 months, and whether a handful of conditions should or should not be imposed. Having said that, of course all determinations are a matter for me.

4. The preliminary judgment in the matter was delivered by Cavanagh J, and it provides, with respect, a very useful summary of many aspects of the matter. It is available here.

5. For the reasons that follow, I accept the concession of the defendant; I agree that there is no discretionary basis for me to refuse to impose an ESO; and I am satisfied that all of the conditions that are not the subject of dispute are appropriate. In the circumstances, I shall be quite brief in resolving the disputes that remain.

Background

6. To recap briefly for the convenience of the reader much that has already been said in the preliminary judgment: the defendant is an Aboriginal man in his early 30s who grew up in deprived circumstances in the north-west of New South Wales. To give but one example, a very close relative was imprisoned for homicide when he was a child. His education was truncated, and he demonstrated behavioural difficulties from an early age. He began to abuse prohibited drugs, no doubt in an effort to obtain relief from the psychological problems that he had developed as a result of his early life. By his early 20s, he possessed a not insignificant criminal record that was peppered with entries for violence.

7. In August 2013, when he was aged 22, the defendant had suffered the recent death of one of his sons. He visited the home of the mother of another son, then approximately 4 years old, and the maternal grandmother of the child. At the time, the defendant was grossly intoxicated by various substances, including Xanax and ice. He believed that the grandmother had been mistreating and belittling him for years, and he possessed a simmering resentment as a result.

8. For reasons that are not entirely clear, but no doubt included the disinhibition and irrationality of intoxication with a cocktail of prohibited drugs, the defendant inflicted very grave injuries upon the grandmother; indeed, it is no exaggeration to say that she almost died. In the course of that, he also injured a neighbour who tried to intervene. A siege developed, and the defendant was seen at one stage by police to hold a knife to the throat of the female victim, and thereafter, even more deplorably, to do the same thing to his young son. Eventually, the defendant was subdued, arrested, and incarcerated.

9. Notably, at the time of committing those offences, the defendant was on bail for an entirely separate reckless wounding, committed on 23 June 2013.

10. He was eventually sentenced after pleas of guilty by Judge King SC on 13 April 2015 for the offences of assault occasioning actual bodily harm upon the neighbour, using an offensive weapon with intent to prevent lawful detention, detaining for advantage with the aggravation of the infliction of actual bodily harm, and causing grievous bodily harm with intent to do so upon the grandmother.

11. In the event, the learned sentencing judge imposed an aggregate head sentence of 7 years and 9 months with an aggregate non-parole period of 5 years 6 months, each to commence on 19 August 2014, with the result that the defendant became eligible for parole on 18 February 2020.

12. That aggregate sentence was partly cumulative upon the sentence for the reckless wounding that had been imposed in the Local Court at Moree: imprisonment for 2 years commencing on 19 August 2013, with a non-parole period of 18 months commencing on the same date and expiring on 18 February 2015.

13. In fact, the defendant was not released at the end of his non-parole period, not least because of his unsatisfactory behaviour, indeed sometimes violent behaviour, in custody. He was not released until earlier this year, on 22 February 2022, after well over 8 years of continuous custody, at which time he was on parole. By the time his parole period expired in its entirety on 18 May 2022, he was already subject to an interim supervision order (ISO).

14. As one would expect, two experts appointed pursuant to the preliminary judgment have assessed the defendant as being at a high risk of offending again by way of serious violence. And that is in a context, of course, of other pessimistic assessments of the future that have been provided over the years by many other experts.

15. Perhaps surprisingly, with respect, the defendant has proceeded very well on those two forms of conditional liberty. In particular, it seems that the therapy that he received in custody, including the well-known EQUIPS program, led to a “sea change” in his attitudes. He is now eager to lead a law-abiding life, in particular by avoiding prohibited drugs, and to get help in doing so. He is perfectly open to getting psychological and other help in the community. In fact, he has been approved for, and is intending to start, the Violent Offenders Treatment Program (VOTP) in just a few weeks. He has undertaken vocational training with the firm intention of becoming gainfully employed in the long-term, for the first time in his life. He has commenced a de facto relationship with a woman whom he met whilst in custody, they are living together in stable albeit constrained accommodation in Sydney, and they are expecting a child together. The defendant gains a great deal of satisfaction from his artworks, and as a layperson I believe that they show talent. Most importantly, he has succeeded in obtaining full-time employment, despite the obvious difficulty that any person with convictions for very serious offences of violence and who has spent many years of his life in custody must experience in doing so.

16. A number of adverse features remain, however. One is that I think it will be very difficult and stressful to care for a newborn baby in accommodation as small as a granny flat. Another is that, despite his positive attitudes, the defendant has chafed against some aspects of conditional liberty, and his conduct has not been absolutely perfect. A third aspect, and one that is perhaps the most concerning of the three, is that the defendant has accepted that he has been using cannabis since his release, although he claims to have cut down recently, and indeed abstained very recently, not least because he is drug tested at work, and a positive test result would mean loss of his newly commenced work. He has explained that he has used that prohibited drug in order to obtain relief from the stress and pain of knowing that his mother is very ill with lung cancer.

Determinations

Conditional liberty?

17. That is a sketch of the context in which I have reflected on this matter. As I have said, there was no dispute that all preconditions for the making of an ESO had been made out. I accept that concession, and, in particular, despite the commendable progress that has been made by the defendant, with love and support from others, I do think that, if he were to be entirely at liberty, there would be a high degree of probability that the defendant would pose an unacceptable risk of committing another serious offence. I say that because of: the patent gravity of the explosion of violence that he committed many years ago; the difficulties and damage that he endured in the two decades leading up to that lamentable event; the degree of isolation from ordinary community life and behaviour that he necessarily endured as a result of being incarcerated for over eight years; and the concern that the recent abuse of a prohibited drug could develop into something more serious - with catastrophic results, as demonstrated previously when the defendant was abusing a cocktail of drugs.

18. I am well satisfied that an ESO should be imposed upon this man, despite all that he has achieved since his release earlier this year.

19. I am also satisfied that there is no basis upon which I should exercise my discretion not to impose that form of conditional liberty.

20. As for its length, I shall not pause over that dispute for long, for the simple reason that, pursuant to statute, an ESO can be extended, or shortened, or renewed, with the result that any decision about the question I make in this judgment is hardly written in stone in any event.

21. Having said that, I respectfully think that, contrary to the submission of the plaintiff, conditional liberty for a full three years would be too lengthy, even appreciating that there can be a stepping down of its rigour during that time. On the other hand, I think that there are logistical reasons not to impose an ESO that is unworkably short. My evaluative judgment is that the ESO should be for two years.

Conditions?

22. Turning to the conditions, I have reflected upon all of those that are not opposed by the defendant, and regard them as appropriate.

23. As for those that were disputed, none of them were part of this man’s parole, upon which he succeeded. Nor were any of them part of his ISO, upon which he has also succeeded. That in itself is a powerful overarching argument, I think, not to be regressive, literally and figuratively, whatever one may think of the intrinsic merit of the proposed disputed conditions, shorn of that important context.

24. Entirely separately, I think that to impose more restrictive conditions upon a person who is going well after a period of not being subject to such conditions could induce discouragement, if not resentment. Again, I would regard those outcomes as most undesirable.

25. Turning briefly to the inherent merits of the disputed conditions: conditions 5, 6, and 7 propose a so-called “dry” schedule of movements. But I am not satisfied that such conditions are necessary, not only in light of the good progress being made by the defendant, but also in light of the busy and structured life he will be leading: enjoying full-time employment, caring for his new baby, continuing his artwork, and being a loving support to his partner in her new motherhood. And in any event, other conditions that I shall impose by consent provide a sufficient restriction upon where the defendant can go, and when he can do so. Finally, of course it is open to him and his Departmental Supervising Officer (DSO) to work voluntarily together on schedules and other ways to bring more organisation to his life. But it is not to be forgotten that breach of a condition can lead to reincarceration; in other words, they are undoubtedly coercive, and should be imposed with caution by me.

26. For all of those reasons, I do not propose to impose conditions 5, 6, and 7.

27. The only other dispute was about conditions 32 and 41, which are to do with digital devices, and in particular imposing a prohibition on deleting digital material without the consent of his DSO.

28. Counsel for the plaintiff conceded that none of this man’s offending, violent or otherwise, and including the offences of the utmost violence that led to him being imprisoned for many years, had anything to do with the Internet or any other aspect of the digital world. She explained that the conditions are really sought in order to ensure that the defendant does not return to the milieu of prohibited drugs, in light of his recent admitted use of cannabis, with potentially criminogenic consequences.

29. I understand that point. I also understand that life nowadays is very much lived online, so that not to be able to inspect the digital devices of a person may give a very incomplete picture of how they are actually living and conducting themselves. But to repeat myself a little: I think that there are serious risks in “going backwards” here and imposing a more rigorous regime on a person who has been proceeding surprisingly well. Furthermore, I think it more likely that the defendant has been obtaining small quantities of cannabis informally and in person, not through digital resources.

30. Finally, in light of all the other forms of progress that have been made, and the point he himself has made about drug testing at work, I am hopeful that, once the crisis to do with the health of his mother passes, he will be able to free himself from any desire to use cannabis.

31. For all those reasons, I shall also not impose condition 32 or condition 41.

Orders

1. Pursuant to ss 5B and 9(1)(a) of the Act, the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of two years from the date of the order; and

2. Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, comply with the conditions annexed to this judgment.
   Barlow - Schedule of conditions (137507, pdf)

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Decision last updated: 11 August 2022