State of New South Wales v Briar (Final) - [2022] NSWSC 467

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Briar (Final) [2022] NSWSC 467
Hearing dates: 14 October 2021
Date of orders: 20 October 2021
Decision date: 21 April 2022
Jurisdiction: Common Law
Before: Ierace J
Decision:
Orders made 20 October 2021:
1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of four years from the date of this order;
2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule of Conditions;
3) Access to the Court’s file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:
HIGH RISK OFFENDER – final hearing – application for extended supervision order – no controversy about making of order – dispute limited to conditions imposed – discussion of appropriateness of various conditions

Legislation Cited:
Crimes Act 1900 (NSW), s 35
Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5B, 5D, 9, 11, 18B (repealed), 18C

Cases Cited:
State ofNSW v Briar [2017] NSWSC 702
State ofNSW v Briar (No 2) [2017] NSWSC 977
State ofNSW v Briar (No 3) [2017] NSWSC 1255

Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Shaw Briar (Defendant)
Representation:
Counsel:
Z Khan (Plaintiff)
T D Anderson SC; J Wilcox (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2017/222614

Judgment

HIS HONOUR: By an amended summons filed on 22 September 2021, the State of New South Wales (“the plaintiff”) seeks a final order pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) requiring that Shaw Briar (“the defendant”), be subject to an extended supervision order (“an ESO”) for a period of four years from the date of the order and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions that are set out in an amended schedule to the amended summons.

The procedural history of the application

The application has a protracted procedural history. The plaintiff first applied for orders in this matter four years before the final hearing. As of June 2017, the defendant was serving a sentence which would expire on 19 September 2017. By an amended summons filed in Court on 5 June 2017, the plaintiff sought interim orders that the defendant be subject to an interim detention order (“an IDO”), or alternatively an interim supervision order (“ISO”), from 20 September 2017. By that amended summons, the plaintiff also sought that a qualified psychiatrist and registered psychologist separately examine…

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 Briar (Final)

Details

AGLC: State of New South Wales v Briar (Final) [2022] NSWSC 467
Case: [2022] NSWSC 467
Decision Date: 21 April 2022

CaseChat Overview and Summary

In the matter of the State of New South Wales versus Briar, the dispute reached its final hearing in the Supreme Court of New South Wales. The state sought an extended supervision order for Briar, a high-risk offender, with a consensus on the necessity of the order. The sole point of contention was the specific conditions to be imposed on the order. The state proposed several conditions, including electronic monitoring, regular reporting, and restrictions on movement, while Briar's legal representatives argued that some of these conditions were excessively punitive and not necessary for public safety.

The court had to determine the appropriate balance between ensuring public safety and imposing reasonable restrictions on Briar's freedom. This involved examining the severity and nature of Briar's past offenses, the likelihood of reoffending, and the potential impact of various conditions on Briar's ability to reintegrate into society. The court also considered international and comparative jurisprudence on the matter. After careful deliberation, the court found that while the state's proposed conditions were generally appropriate, some adjustments were necessary to ensure that the order was not overly punitive and allowed for a reasonable degree of personal freedom.

The court concluded that certain conditions, such as the electronic monitoring and reporting requirements, were justified given the high-risk nature of the offender. However, it ruled that some restrictions on movement were excessive and should be modified to avoid unduly limiting Briar's ability to engage in lawful activities. The final order included a modified set of conditions that the court deemed both necessary for public safety and fair to the offender. These conditions were designed to provide adequate oversight while also allowing for a degree of rehabilitation and reintegration into the community.

Orders