State of New South Wales v Bowen (Final) - [2019] NSWSC 1003

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Bowen (Final) [2019] NSWSC 1003
Hearing dates: 7 August 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Extended supervision order for 3 years with conditions

Catchwords: HIGH RISK OFFENDER – application for extended supervision order – final hearing – history of serious violence offences – statutory preconditions established – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious violence offence if not kept under supervision – consideration of progress in rehabilitation, psychological diagnoses, and conduct under past and present supervision – defendant’s negative attitude to extended supervision order not relevant to Court’s discretion – experts in agreement as to assessment of risk posed by defendant – order made subject to conditions
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), 5B, 5B(d), 9(1)(a), 9(2), 11
Evidence Act 1995 (NSW), s 126E(b)
Terrorism (High Risk Offenders) Act 2017 (NSW), s 20
Cases Cited: State of New South Wales v Bowen (Preliminary) [2019] NSWSC 570
State of New South Wales v Naaman (No 2) [2018] NSWCA 328
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Stephen Michael Bowen (Defendant)
Representation:
Counsel:
Ms D New (Plaintiff)
Ms F Graham (Defendant)
Solicitors:
NSW Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2019/30894

Judgment

HIS HONOUR: The State of New South Wales commenced proceedings against Stephen Michael Bowen under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) on 29 January 2019. An amended summons was filed on 29 April 2019 and a further amended summons was filed by leave in Court on 7 August 2019. The State seeks orders including that Mr Bowen be made the subject of an extended supervision order (ESO) for a period of three years.
The basis of the State's application is the contention that there is a high degree of probability that Mr Bowen poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision: s 5B(d) of the Act.
Wright J made orders on 16 May 2019 at a preliminary hearing: State of New South Wales v Bowen (Preliminary) [2019] NSWSC 570. Pursuant to those orders, Dr Adam Martin, forensic psychiatrist, and Ms Chelsey Dewson, forensic psychologist, have separately examined Mr Bowen and have provided reports. In addition, Mr Bowen has been subject to an interim supervision order (ISO) since 31 May 2019 with a suite of conditions, including that he submit to electronic monitoring of his movements. The ISO has been extended twice and is due to expire on 23 August 2019.

Evidence at the final hearing

The final hearing of the matter occupied a full day on 7 August 2019. There was no dispute that the statutory preconditions for the making of an ESO were established. What was in dispute was whether an ESO should be made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State of New South Wales v Bowen (Final)

Details

AGLC: State of New South Wales v Bowen (Final) [2019] NSWSC 1003
Case: [2019] NSWSC 1003
Decision Date: 09 August 2019

CaseChat Overview and Summary

The case involved the State of New South Wales bringing an application against Bowen for an extended supervision order. Bowen had a history of serious violence offences, and the court had to determine if statutory preconditions were met and if Bowen posed an unacceptable risk of committing another serious violence offence without supervision. The court was tasked with assessing Bowen's progress in rehabilitation, psychological diagnoses, and conduct under supervision. Additionally, the court considered the experts' unanimous agreement on Bowen's risk assessment.

The legal issues included whether the statutory preconditions were met, whether Bowen posed an unacceptable risk of reoffending, and whether the defendant's negative attitude to the extended supervision order was relevant to the court's discretion. The court examined Bowen's rehabilitation progress, psychological diagnoses, and conduct under supervision to make its determination. The court also considered the experts' unanimous agreement on Bowen's risk assessment.

The court found that the statutory preconditions were met and Bowen posed an unacceptable risk of committing another serious violence offence without supervision. The court determined that Bowen's negative attitude to the extended supervision order was not relevant to its discretion. The court relied on the experts' unanimous agreement on Bowen's risk assessment and found that the application should be granted. The court made the order subject to specific conditions to ensure Bowen's supervision and rehabilitation.

The court made an extended supervision order subject to conditions, including regular reporting to the police, participating in a rehabilitation program, and complying with a curfew. The order aimed to ensure Bowen's supervision and rehabilitation while protecting the community from the risk of serious violence offences. The court's decision was based on the statutory preconditions being met, Bowen's unacceptable risk of reoffending, and the experts' unanimous agreement on Bowen's risk assessment.

Orders