State of New South Wales v Briar (No 3) - [2017] NSWSC 1255

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Briar (No 3) [2017] NSWSC 1255
Hearing dates: 15 September 2017
Decision date: 19 September 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
1) Pursuant to s 18B of the Crimes (High Risk Offenders) Act 2006 (NSW), order that the defendant be subject to an interim detention order for 28 days commencing from 20 September 2017.
2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), issue a warrant for the committal of the defendant to a correctional centre.
3) Stand the matter over for directions on Friday, 13 October 2017 at 2pm.

Catchwords: HIGH RISK OFFENDER – interim detention order sought – where defendant recently charged with further serious violence offence in custody – order made
Legislation Cited: Crimes Act 1900 (NSW), s 35
Crimes (Administration of Sentence) Act 1999 (NSW), s 130
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5A, 6, 13A, 13C, 17, 18B, 20
Criminal Procedure Act 1986 (NSW), s 260
Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
Cases Cited: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340
Attorney-General for the State of NSW v Hayter [2007] NSWSC 983
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Lynn v State of New South Wales [2016] NSWCA 57
State of New South Wales v Briar (No. 2) [2017] NSWSC 977
State of New South Wales v Briar [2017] NSWSC 702
State of New South Wales v Hippett [2016] NSWSC 1180
State of New South Wales v Manners [2008] NSWSC 1242
State of New South Wales v Pacey [2015] NSWSC 1983
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Shaw Briar (Defendant)
Representation:
Counsel:
Mr Z Khan (Plaintiff)
Mr P Skinner (Defendant)
Solicitors:
NSW Crown Solicitor (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2017/222614
Publication restriction: No

Judgment

Background

The plaintiff in these proceedings, the State of New South Wales, seeks a high risk violent offender continuing detention order (“CDO”) under s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant, Shaw Briar. Such an order would detain the defendant beyond the expiration of his current sentence. He is serving a sentence of imprisonment for three years for an offence of recklessly causing grievous bodily harm in company contrary to s 35(1) of the Crimes Act 1900 (NSW). His total term of imprisonment is to expire on 20 September 2017.
The defendant is a young Indigenous man of 24 years with a multiplicity of complex needs and risk factors. He has a criminal history for offences of violence going back to the age of 15. He spent nearly three years in juvenile detention and has spent most of his young adulthood in custody. As an adult, he has been at large in the community for periods ranging from a month to 10 weeks. He has significant drug and…

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 (No 3)

Details

AGLC: State of New South Wales v Briar (No 3) [2017] NSWSC 1255
Case: [2017] NSWSC 1255
Decision Date: 19 September 2017

CaseChat Overview and Summary

In the case of the State of New South Wales versus Briar, the defendant faced an application for an interim detention order following recent charges of serious violence committed while in custody. The application was heard in the Supreme Court of New South Wales. The State sought the order under the High Risk Offenders Act 2016, asserting that the defendant’s recent conduct demonstrated a propensity for serious violence and a threat to the community if released from custody.

The court was required to determine whether the defendant met the criteria for an interim detention order under the Act. Specifically, the court needed to assess whether the defendant's recent conduct in custody demonstrated a propensity for serious violence and whether this conduct presented a risk to public safety if the defendant were to be released. The court had to balance the defendant’s right to liberty against the need to protect the community.

The Supreme Court found that the defendant’s recent conduct in custody, which involved serious violence, met the threshold for an interim detention order under the High Risk Offenders Act. The court was satisfied that the defendant’s actions demonstrated a propensity for serious violence and that there was a significant risk to the community if the defendant were released. Consequently, the court made the interim detention order sought by the State. The defendant’s application for review of the order was dismissed.

Orders