State of New South Wales v Creighton (Preliminary)

[2025] NSWSC 292

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Creighton (Preliminary) [2025] NSWSC 292

Hearing dates:

7 March 2025

Date of orders:

31 March 2025

Decision date:

31 March 2025

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

Orders made for interim supervision and for appointment of experts to assess the defendant.

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – conditions – least intrusive conditions consistent with risk – what conditions are likely to be effective – interim supervision order made – effect of possible extradition to serve criminal sentence and/or parole interstate

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Firearms Act 1996 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Attorney General for the State of New South Wales v Winters [2007] NSWSC 611

Lynn v State of New South Wales (2016) 91 NSWLR 646; [2016] NSWCA 57

State of New South Wales v BG (Final) [2019] NSWSC 200

State of New South Wales v Elmir [2019] NSWSC 263

State of New South Wales v Lynn [2013] NSWSC 1147

State of New South Wales v ST (Preliminary) [2022] NSWSC 491

State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883

State of New South Wales v Tabbah (Preliminary) [2025] NSWSC 56

State of New South Wales v Vincent (Preliminary) [2020] NSWSC 1269

State of New South Wales v Wynne (Preliminary) [2020] NSWSC 1650

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
James Creighton (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
J Wilcox (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2024/00441010

Publication restriction:

Nil

JUDGMENT

1. On 25 November 2024, the State of New South Wales, the plaintiff, commenced proceedings against James Creighton, the defendant, seeking an extended supervision order (“ESO”) of two years under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. The plaintiff also seeks interim orders for supervision (“ISO”), for 28 days commencing on 22 April 2025, and the appointment of two suitably qualified experts pursuant to s 7(4) of the Act to examine the defendant and report to the Court.

3. This judgment deals only with the making of the interim orders.

4. The defendant opposes any orders being made.

5. Having considered the affidavit material tendered by the plaintiff, I have concluded that an ISO should be made and the plaintiff should be examined under s 7(4) of the Act for the reasons that follow.

Background

6. The defendant is a 27-year-old Indigenous man, who is in custody serving the balance of parole for the index offences which are outlined below. He was released to parole on 18 April 2023 and was returned to custody on 10 July 2023 due to a breach of his parole. His sentence is due to expire on 22 April 2025.

Index Offending

7. On 19 January 2019, the defendant attended a gathering at his aunt’s residence with his partner (“TM”). The defendant drank alcohol and became very intoxicated. One of the defendant’s friends arrived and TM became upset, believing that the defendant was under the influence of methylamphetamine. TM left the residence and started to walk home, whereupon the defendant and a friend drove around looking for her. When they found TM, the defendant slammed her head into a chain link fence and demanded to know who had told her that he was using ice, which he denied using. He also became enraged and accused her of cheating on him.

8. TM was forced into the vehicle and driven back to her aunt’s residence. During the drive the defendant hit TM and threatened to stab her and to hurt himself.

9. At the aunt’s residence TM attempted to run away however the defendant pushed her to the ground, put his hands around her throat and slammed her head against a brick wall at least twice. He took a large carving knife from inside the house and stabbed TM in the abdomen. She was taken inside where she collapsed.

10. The defendant's mother (“LC”) then went to TM's assistance and the defendant slashed LC’s left forearm with the knife. She bled profusely and collapsed. The defendant’s uncle (“RC”) attempted to intervene and separate the defendant from the victims and the defendant then stabbed him to the abdomen, chest and arm, whereupon RC collapsed in the backyard. A family friend (“JB”) approached the defendant and asked what was going on. The defendant punched him in the nose and JB fell off a veranda.

11. TM’s and RC's injuries were considered life threatening and required urgent surgery. The defendant fled the scene when told the police were on their way. When he was found by police, he denied any recollection of attacking anyone, but subsequently pleaded guilty to two charges of inflicting grievous bodily harm with intent, and one charge of wounding with intent to cause actual bodily harm.

12. These offences were committed whilst the defendant was subject to parole for an offence of armed robbery. He was sentenced to 6 years’ imprisonment, with a non-parole period of 3 years and 9 months.

Previous Offending

13. The defendant has a criminal history as a juvenile, beginning when he was aged 12, involving charges of aggravated enter dwelling with intent to steal and be carried in conveyance in 2009, aggravated break and enter and commit serious indictable offence in company in 2010, aggravated break and enter in company in 2011, common assault and carry cutting weapon in 2013, aggravated break and enter and commit serious indictable offence in company in 2014, and a number of domestic violence-related offences in 2015.

14. In 2016, he was convicted of five counts of contravening an AVO, stalk/intimidate and common assault, and was sentenced to 5 months’ imprisonment. He was also convicted of two counts of aggravated break and enter and commit serious indictable offence and was sentenced to a control order.

15. In April 2018, the defendant was convicted of armed robbery, two counts of aggravated break and enter, and possess unauthorised replica pistol, and was sentenced for this offending to 3 years and 9 months’ imprisonment.

16. The defendant was convicted of a number of offences in Queensland in 2017, involving unauthorised explosives, burglary, unlawful use of motor vehicles, break and enter premises and commit indictable offence, fraud, receiving tainted property, possessing dangerous drugs, and failure to appear. He served approximately 2 months’ imprisonment and left the State whilst on parole, and so he has unserved parole as well as various other charges in Queensland for which there are warrants for his arrest.

Relevant legal test

17. The preliminary application is limited to an ISO of 28 days’ length. At this stage I am not engaged in the task of weighing up material contained in the evidence, or predicting the result of the plaintiff’s application at final hearing.

18. What I am required to do is to consider whether the facts and matters contained in the documentation tendered by the plaintiff, would, if proved, justify the making of an ISO.

19. The test is not a stringent one: see State of New South Wales v Lynn [2013] NSWSC 1147 at [18]. It is necessary to have regard to the objects of the Act – the safety and protection of the community being paramount – and to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

20. Once the statutory preconditions are determined to have been met, the decision to make an ESO or dismiss the application is discretionary. The relevant provisions are:

5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if—

(a)  the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b)  the person is a supervised offender (within the meaning of section 5I), and

(c)  an application for the order is made in accordance with section 5I, and

(d)  the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

…

5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

9   Determination of application for extended supervision order

…

(2)  In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

21. In deciding whether to make an ESO, and as a threshold question, whether I am 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 under the order, I must have regard to the relevant evidence tendered by the plaintiff which addresses the considerations set out in s 9(3) of the Act:

9 Determination of application for extended supervision order

…

(3) …

(a) …

(b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2) the likelihood that the offender will comply with the obligations of an extended supervision order,

(f) without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

Attitude of the defendant

22. The defendant submitted that an ESO would not be justified, as the Court would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision under an ESO. In his written submissions, counsel for the defendant, Mr Wilcox, argued that this is because of the “virtual certainty” that the defendant will be extradited to Queensland to serve almost 18 months of revoked parole. Another reason for extradition to Queensland is to answer further arrest warrants for alleged offences that have not been finalised. Mr Wilcox submitted that there is no utility in making the order as it has no role to now perform. Mr Wilcox submitted that given the extradition will of necessity involve imprisonment, the Court could not be satisfied that the defendant poses an unacceptable risk of committing a serious violence offence given the likely imprisonment or at the very least, supervision by Queensland parole authorities.

23. Mr Wilcox submitted that even if an ISO is made, it is open for Queensland Police to apply for the defendant to be extradited to Queensland. If that happens, any ISO made in New South Wales would have to be suspended, likely for a period of 18 months, if not longer, and the Court cannot accurately or realistically now assess the defendant’s risk factors 18 months hence.

Statutory considerations and the evidence tendered on the application

24. For the purposes of this interlocutory application, a number of statutory pre-conditions must be met.

25. First, the application must be made within 9 months of the expiration of the current supervision period: s 6(1) of the Act. The defendant’s total sentence for the index offending is due to expire on 22 April 2025. Accordingly the application complies with s 6 of the Act. As submitted by Mr Aitken on behalf of the plaintiff, the only opportunity to make the order under the legislation is prior to 22 April 2025. There is no facility to make any order under the legislation after 22 April 2025.

26. Second, the defendant must be an “offender” because he has served a term of imprisonment for a serious offence: s 4A of the Act. The defendant is an “offender”, because he has been sentenced to imprisonment to be served by way of full-time detention following a conviction for a serious violence offence, being the index offences of inflicting grievous bodily harm with intent to cause grievous bodily harm.

27. Third, the defendant must be a “supervised offender” for the purposes of s 5I(1) of the Act. The defendant is supervised, because he is currently serving the balance of his parole and so is deemed to be a person who is serving a sentence of imprisonment: s 5I(2)(a)(i).

28. Fourth, the Court must be satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision: s 5B(d), and in making that assessment I must have regard to s 9(3) matters.

29. The evidence addressing s 9(3) matters was provided as annexures and exhibits to the following affidavits tendered by the plaintiff:

• Kendrea Fang, affirmed 25 November 2024 together with Exhibit KF-1;

• Kendrea Fang, affirmed 3 February 2025 together with Exhibit KF-2;

• Kendrea Fang, affirmed 3 March 2025, annexing some updated case management notes regarding the defendant covering the period 8 December 2024 to 9 January 2025; and

• John Banton (High Risk Offender Applications and Operational Governance Officer), affirmed 3 March 2025.

30. A comprehensive Risk Assessment Report by Ms Wright, Senior Psychologist, dated 12 July 2024 informs considerations s 9(3)(c) and (d) of the Act. Ms Wright assessed the defendant as falling within the high risk range for violent reoffending. Ms Wright assessed the defendant’s dynamic risk factors to include violent lifestyle, violence during institutionalisation, weapon use, criminal attitudes, criminal peers, cognitive distortions, interpersonal aggression, emotional control, impulsivity, violence cycle, insight into violence, substance abuse, stability of relationships, community support, release to high risk situations, and compliance with supervision.

31. A Risk Management Report was prepared by David Ford, Departmental Supervision Officer, on 23 July 2024. Mr Ford noted that the defendant has returned to custody on two occasions whilst being on parole for the index offending. The defendant reported that he currently has good relationships with his family, and plans to return to his grandmother’s home near Tamworth once released. Mr Ford proposes a supervision plan which would include a schedule of movements, electronic monitoring, drug and alcohol abstention, searches and seizures of property, prohibitions on changing personal appearance, preventing access to extremist material, medical treatment, financial oversight, and weapons controls.

32. An affidavit of Mr Banton informed consideration s 9(3)(d1), and explained the supervision proposed under the ESO and the rationale for the various conditions that were sought.

33. In respect of consideration 9(3)(e), there is evidence that the defendant completed the Violent Offender Therapeutic Program (“VOTP”) in custody in January 2023, directed to strategies and skills to manage difficult situations without using aggressive and violent behaviour. The VOTP treatment report included the following observations about the defendant’s participation in the program:

“Mr Creighton mostly presented as a motivated and actively engaged participant of the program. He demonstrated an intrinsic desire for prosocial change and readily offered meaningful contributions in both group and individual treatment to consolidate session concepts. Mr Creighton typically completed written work to the best of his ability and made efforts to enforce prosocial attitudes and behaviours across various contexts. This was evidenced by his willingness to assertively communicate with others, provide constructive feedback to his peers and to role model positive behaviours to others in the unit. Mr Creighton regularly participated in community-based activities, such as contributing to community meetings and entering the VOTP Art and Poetry competition… Whilst at the VOTP, Mr Creighton was subject to urinalysis drug testing on four occasions…with all testing returning negative tests (that is nil substances were detected).

Mr Creighton’s program attendance and engagement did fluctuate in the second half of the program. This was evidenced by his occasional disengagement and restlessness during group discussions as well as delays and superficiality in his written work. Whilst Mr Creighton’s oscillating motivation and attitude towards treatment may be partly attributed to the lengthiness of his program participation, it appeared to be primarily due to presenting interpersonal conflict or stressors occurring within custody or in the community.

…

Mr Creighton consistently acknowledged and accepted responsibly for his use of violence in his offending. He demonstrated insight into the possible contextual factors that contributed to his index offence, including his recent release into the community, relapse to polysubstance use including alcohol, reassociation with an antisocial peer, and instability in his relationship with his ex-partner (victim). Mr Creighton recognised that he lacked readiness for change at the time of his offences and acknowledged that he struggled to cope effectively with emotional distress when encountering relationship difficulties. He acknowledged the instability of his intimate relationship at the time of his offending exacerbated unhelpful self-talk and contributed to self-destructive or antisocial behaviours, including crime, drug use and interpersonal aggression.

…

Were Mr Creighton to re-offend, he would likely engage in expressive or reactive violence in the context of relapsing to problematic drug use, increased impulsivity or poorly planned behaviours, strong endorsement of rigid distortions or relationship expectations and disregard for warning signs related to emotional distress or building interpersonal conflict…Alternatively, Mr Creighton may also engage in instrumental violence in the context of a repeated lack of success with gaining employment or dissatisfaction with existing employment, reassociating with antisocial peers, financial instability or poor budgeting, familial or relationship stressors and relapse to drug dependence…”

34. Unfortunately the defendant did not engage at all with the VOTP maintenance program upon release to the community in April 2023, despite efforts to contact him on several occasions via telephone.

35. Another aspect of the defendant’s submission is the “virtual certainty” that he will be extradited to Queensland. It was submitted that the Court can (relevantly to consideration s 9(3)(e1) of the Act) assume he will be supervised in Queensland.

36. No formal application has yet been made for the defendant’s extradition. The highest the evidence goes is a chain of email correspondence from a senior police officer in Queensland between 4 and 16 November 2024, stating that the defendant would have to be “not under restraint” (that is, released from custody on parole or otherwise in the community) before an extradition hearing in Queensland could be held, and a travel permit requested to transport the defendant to Queensland for extradition purposes. The officer noted that given the extradition involves a “return to prison warrant”, the defendant would go “straight back” to gaol to serve his remaining 536 days of outstanding breached parole, without the need for a judicial process to determine the matter.

37. The Crown submitted that even a likelihood of extradition does not prevent the Court from being satisfied to a high degree of probability that upon the defendant’s release into the community there is an unacceptable risk that he would commit another serious offence.

38. Whilst there is some prospect, even as high as a likelihood that extradition of the defendant will be pursued, I must deal with the circumstances which presently exist in determining the question of risk posed by the defendant. There has been no extradition application made. In the absence of an extradition order, unless the interim orders sought are made, the defendant will be released into the community, unsupervised, on expiry of his sentence on 22 April 2025 and the State has no basis to make any further application at all under the Act. The defendant, in contrast, can make an application under s 13(1) to vary the order.

39. There is also a question mark over whether the defendant will comply with the requirements of supervision by parole in Queensland, if that is what occurs as opposed to the predicted immediate return to custody, given his earlier breaches of parole, and so in that situation there is no “supervision” in reality, if no order for supervision is made by this Court: s 9(3)(e2) and (f) of the Act.

40. Whilst on parole in 2023 in New South Wales, the defendant committed a number of offences, although not violent offences. Parole reports note that the defendant’s engagement with supervision was considered poor, although he described this period in the community as relatively good for him. He reported having no conflict, no significant drug and alcohol concerns, no anti-social peers and a supportive relationship with his family. Nevertheless, Mr Wilcox accepted in written submissions that the defendant is a poor candidate for compliance with supervision.

41. In respect of considerations 9(3)(h1) of the Act, on sentence for the index offending Judge Hunt noted that the injuries suffered by the victims were serious, life-threatening, and were anticipated to cause long term disability. His Honour accepted that the defendant was remorseful for his actions, particularly given they had cost him an intimate relationship and any ongoing contact with his former partner’s family, and created strain on his relationships with his mother and relatives who were present during the offending. His Honour acknowledged that the defendant was only 21 years at the time of the offending, and that particular weight should be given to the aim of rehabilitation because of the defendant’s youth. His Honour also found special circumstances on two bases: the need for an extended period of supervision in the community to address the defendant’s ongoing problems with cannabis and anger management, and to better protect the community by avoiding the risk of institutionalisation.

42. There is other relevant information available as to the likelihood of other offences being committed: (s 9(3)(i)) of the Act) specifically, violent offending in custody, which Mr Aitken submitted I should consider. Mr Aitken submitted that there is evidence that the defendant has displayed violent behaviour on numerous occasions, notably using a gaol-made weapon to stab an inmate in May 2019, possessing a gaol-made weapon in his cell and posting a letter stating that he was ready and willing to stab people “when given the order” in September 2019, being involved in an incident that resulted in an inmate being stabbed in December 2020, being involved in two group assaults using a gaol-made weapon in April 2023, having a gaol-made weapon and threatening to harm staff on two occasions in July 2023, being seen on CCTV sharpening gaol-made shivs and handing them to other inmates in September 2023, assaulting an inmate in October 2023, being found with a gaol-made shiv in November 2023, and being involved in another serious assault and stabbing of an inmate in January 2024.

Conclusion on s 5B(d) of the Act

43. Having considered the evidence tendered, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

44. There is no clarity as to whether extradition to Queensland will be sought or when. It would be wrong to reject the plaintiff’s application on the basis that the defendant will be in custody, or will be supervised in Queensland, and so fail to make the necessary evaluation under the Act.

45. The defendant does present an unacceptable risk based on his impulsivity and clear and present tendency to reach for violent solutions to his anger, distress or frustration.

46. The matters highlighted in the Risk Assessment Report of weapon use, criminal attitudes, cognitive distortions, substance use, difficulty regulating emotions and impulsivity all contribute to the present risk of commission of another serious offence.

47. As submitted by Mr Aitken, the defendant’s repeated resorting to weapon use increases those risks in that the outcome of violence is likely to be more serious, illustrated by the impulsive use of the knife in the index offences.

Principles regarding the imposition of conditions

48. Section 11 of the Act empowers the Court to impose conditions that it determines are appropriate, and contains an illustrative list of the types of conditions that might be imposed.

49. The conditions that are imposed must be stringent and reasonably specific to reducing the particular risks of reoffending in the community: State of New South Wales v BG (Final) [2019] NSWSC 200 at [39] (Fagan J); State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 at [103] (Garling J).

50. Whilst there is no express limit on the conditions that may be made, the focus must be on conditions that are appropriate for achieving the purposes of the Act. As stated by Basten JA in Lynn v State of New South Wales [2016] NSWCA 57 at [129], the Court “will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kinds of conditions are likely to be effective”.

51. As I said in State of New South Wales v Tabbah (Preliminary) [2025] NSWSC 56 at [32]:

“A formulaic approach is not appropriate. To impose every available or conceivable condition, without properly considering their efficacy and appropriateness to address risk in the context of a particular offender's situation, is not what the Act requires. The task requires an assessment of the interaction of conditions with each other, with attention paid to the role of a particular condition when considered as part of the whole regime of supervision. Imposing conditions that have the effect of criminalising minor behavioural matters is unfair and setting up an offender to fail. It does little, if anything, to "ensure the safety and protection of the community" in any real sense, and can be actively discouraging of efforts at rehabilitation by offenders.”

52. To that analysis I would add these further observations. Rehabilitation of offenders into the community should not be seen as some kind of “soft focus” favourable to a person who has been convicted of serious offences in the past. Effective rehabilitation of offenders plays a key role in keeping the community safe. Rehabilitation of offenders is an additional object of the Act. No doubt safety of the community is paramount, but a wider view is appropriate when fashioning what conditions to impose.

The contested conditions

53. The conditions disputed by the defendant are those that relate to a schedule of movements and electronic monitoring, his potential extradition to Queensland and the complications created if that eventuates, his financial affairs, disclosure of criminal history, directions regarding computer/phone electronic devices, change of appearance, disclosure of criminal record to healthcare professionals, and associating with people consuming alcohol.

Electronic monitoring and schedule of movements conditions (conditions 6-9)

54. Mr Wilcox submitted that parole conditions have in the past been sufficient to ameliorate the defendant’s risk of violent re-offending. Although he committed offences while on parole in 2023, none of these offences were violent.

55. Given that the defendant has showed initiative in gaining employment and joining a local sports team when released to parole in 2023, he can be trusted to demonstrate pro-social behaviour and initiative without a schedule of movements.

56. Mr Aitken submitted that electronic monitoring and scheduling conditions would allow the supervising team to monitor the defendant’s movements in the community and attendance at any high-risk locations or locations associated with victims. Mr Aitken submitted that this kind of monitoring permits proactive risk assessment by conducting audits of any concerning patterns in the defendant’s behaviour that may be relevant to risk factors, such as repeated attendance at locations known for drug transactions. Mr Aitken also submitted that scheduling conditions present opportunities for the supervising team to encourage pro-social activities for the defendant.

57. I decline to impose a requirement for a schedule of movements and electronic monitoring. The circumstances of the index offending and the risk factors in the defendant’s case are ones that can arise quickly and in a domestic setting. A schedule of movements and monitoring does not have any risk-reducing role to perform in that regard. I am also not persuaded they are appropriate conditions to impose in this particular case given the combination and effect of the other conditions imposed, and the likely counter-productive effect they will have on the defendant’s efforts to reintegrate into the community and pursue pro-social pursuits with some autonomy and responsibility.

Extradition conditions (conditions 20, 20A, and 21)

58. Mr Wilcox submitted that the conditions pertaining to the defendant’s potential extradition to Queensland should not be made at this stage, but should be reviewed in a further preliminary hearing once the matter of extradition has been settled. He submitted that this is particularly prudent in circumstances where the defendant might be sentenced to almost 18 months of imprisonment in Queensland by way of revoked parole, and the unacceptable risk test would have to be redecided after that term of imprisonment.

59. Mr Aitken submitted that the proposed conditions relating to extradition should be made if I determine to impose an ISO, considering (a) the difficulty of having those conditions inserted retrospectively given the potential loss of jurisdiction over the defendant; (b) the fact that this is a preliminary determination and an ISO would only serve to preserve the State’s jurisdiction to apply at final hearing for a determination of the ultimate issue, namely whether an ESO should be made; (c) the approach this Court has taken in other matters at a preliminary stage where there is an uncertain future; [1] and (d) the emphasis on risk avoidance at the preliminary stage.

    1. State of New South Wales v Elmir [2019] NSWSC 263 at [29]-[33] (Campbell J); State of New South Wales v ST (Preliminary) [2022] NSWSC 491 at [38]-[43] (Ierace J); State of New South Wales v Wynne (Preliminary) [2020] NSWSC 1650 at [133]-[148] (Davies J); State of New South Wales v Vincent (Preliminary) [2020] NSWSC 1269 at [112]-[120] (Cavanagh J).

60. I have decided that conditions 20, 20A, and 21 are a necessary component of the proposed conditions as they outline for the defendant what is required of him if he is extradited and/or released to parole in Queensland. It is also necessary he understand that unless and until that occurs, he must stay in New South Wales. The interaction and operation of those conditions is facilitative, not onerous, and provides clarity as to what is required of the defendant in those circumstances.

Financial disclosure (condition 27)

61. This condition is opposed by the defendant on the basis that it was not specifically endorsed in the Risk Management Report of David Ford, and is not an appropriate condition to impose as it does not address any particular risk relevant to potential offending by the defendant.

62. Mr Aitken submitted that given the defendant’s history of alcohol and substance use, a financial disclosure condition is appropriate to enable detection of any potential drug transactions or unexplained financial activity that may indicate a relapse or increased risk.

63. I have decided that this condition should be imposed given that I have declined to impose electronic monitoring or a schedule of movements. Financial disclosure provides a way for the DSO to keep checks on the defendant’s rehabilitation and reintegration choices.

Associations with persons consuming alcohol or drugs (conditions 33 and 33A)

64. The proposed conditions prohibit association with any person who the defendant knows is consuming or under the influence of alcohol without the prior approval of a DSO.

65. Mr Aitken submitted that these conditions are proposed to prohibit the defendant’s contact with persons consuming alcohol, noting that alcohol may have disinhibitory effects, and association with persons consuming it may induce the defendant to relapse.

66. Mr Wilcox submitted that these conditions are unrealistic in circumstances where the defendant is likely to spend time with family members in the community, some of whom may consume alcohol. Mr Wilcox submitted that if there are specific concerns about family members or their alcohol consumption, it is more appropriate that a non-association direction be crafted in condition 32.

67. I accept that these conditions have some practical difficulties, imposing on the defendant an obligation to police others and/or to suddenly leave social settings simply because a single person has a sip from a can of beer or a glass of wine.

68. In an effort to address these concerns, Mr Aitken submitted the following re-drafts after the hearing for my consideration:

“32.   Without limiting condition 31, you must take steps to avoid remaining in the company of any person who you are socialising with, if you see that they are consuming alcohol, unless you have obtained the prior approval of a DSO to be in the company of persons drinking alcohol at that social occasion.

The DSO is not to reasonably withhold approval for you to be in the company of family members drinking alcohol at a family occasion, if the DSO:

(i)   has first had an opportunity to make a risk assessment;

(ii)   has deemed the occasions is suitable; and

(iii)   is made aware at least 24 hours beforehand of the family members attending and the nature of the occasion.

32A. Without limiting condition 32, you must take steps to avoid remaining in the company of any person who you are socialising with, if:

a)   you see that they are consuming or under the influence of illegal drugs; or

b)   held in custody without prior approval of a DSO.”

69. In the form proposed, these conditions are unworkable and criminalise the defendant for being in a situation that he may not be able to control, and that may change within the space of a minute. The proposed re-draft of condition 32 introduces complexity and confusion, and is, as a result, potentially unfair in its operation. I consider that the proposed re-draft is counter-productive to rehabilitation and reintegration into the community. There is also infelicity in the expression of the prohibition in condition 32A(b) which makes that proposed condition very difficult to interpret.

70. I decline to impose condition 32 in the form sought by the State. The same practical difficulties and unnecessary complexity and confusion in interpretation and application apply to the re-draft of condition 32A, and so I decline to impose that proposed condition as well.

Criminal history disclosure (condition 34)

71. Mr Wilcox submitted that supervision can be achieved without recourse to disclosure of his criminal history to the local community and this condition is therefore unnecessary.

72. Mr Aitken submitted that this condition permits the supervising team to make disclosures about the defendant’s offending history where it is deemed necessary, such as to an intimate partner or friend, whilst affording the defendant the opportunity to make this disclosure himself within an identified period. This condition can enable monitoring of whether other persons are appropriately informed about the defendant’s risks before they choose to associate with him on a regular basis, or enter into a relationship with him.

73. I have decided that to impose a condition in the form sought by the plaintiff, but with the addition of “reasonableness”, i.e. allowing the defendant to have a reasonable period to tell the person first. The knowledge and understanding of the defendant’s record of violence will aid safety of the community so that a person in his immediate vicinity – including potentially where he lives – can be alert to situations that have the potential to, or begin to, deteriorate into violence, and so can take steps to recognise this, to possibly defuse it, or to remove themselves from the situation.

Internet and electronic communication (condition 38)

74. Mr Wilcox submitted that internet and electronic communication usage is only indirectly related to the defendant’s risk of violent reoffending. Other means of supervision imposed by other conditions are sufficient to monitor any risks of domestic violence offending.

75. Mr Aitken submitted that monitoring of the defendant’s internet usage and electronic communications would allow for review of any communications with vulnerable persons. Mr Aitken submitted that such a condition is necessary in light of the defendant’s historical use of Facebook to send threatening messages to his former partner, using an emoji face with tears and a picture of a handgun, and previous convictions of using a carriage service to menace/harass/offend, by sending messages to the friends of a different former partner after the breakdown of the relationship.

76. I have decided that this condition should be imposed, given the serious nature of the previous carriage service offence, which implicitly threatened violence, and so that the DSO can be alert to and manage deteriorating relationships or deteriorating interactions that may provide a setting for a violent outburst.

Change of appearance (condition 43)

77. The defendant opposed this condition in the form sought by the State. He proposed a change from the suggested:

“You must not significantly change your appearance without the approval of a DSO.”

to:

“If you significantly change your appearance, you must notify a DSO within 24 hours of making the change of appearance.”

78. Mr Aitken submitted a further wording of the condition which removes any suggestion that the DSO can refuse to permit the change in appearance:

“You must not significantly change your appearance without informing a DSO before the change is made.”

79. Mr Aitken submitted that it is necessary to ensure that the defendant is able to be easily identified and located, given his history of poor compliance with community supervision, and his potential extradition to Queensland to serve outstanding arrest warrants.

80. I accept Mr Aitken’s submission. The re-worded condition is reasonable and appropriate, and should be imposed in the form now sought by the plaintiff. It is not too onerous or difficult of a task for the defendant to phone his DSO and advise that he plans, for example, to shave off a beard or cut his hair prior to doing so.

Disclosure of criminal history to healthcare professionals (condition 53)

81. The defendant opposed the imposition of a condition allowing the disclosure of the defendant’s criminal history to treating medical practitioners and healthcare professionals.

82. Mr Aitken submitted that this condition is necessary to ensure that healthcare professionals treating the defendant are properly apprised of his criminal history, given a previous incident where the defendant entered into an improper relationship with a Corrective Services staff member.

83. I have decided that it is appropriate to impose this condition. It is protective of the health care community to know and understand the criminal record of the defendant. It will aid in their treatment and assessment, help them to be able to be alert to potential heightened mood or distress, and to be able to, if possible, de-escalate and manage any such situations.

Orders

84. I make the following orders:

1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:

1. Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties.

2. The defendant is directed to attend those examinations.

2. Pursuant to ss 10B and 10C(1) of the Crimes (High Risk Offenders) Act 2006, the defendant is subject to an interim supervision order (ISO) from 22 April 2025.

3. The ISO is to be for a period of 28 days.

4. The defendant is to comply with the conditions set out in the Schedule appended to this judgment for the period of the ISO.

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Schedule of Conditions - State of NSW v Creighton (106322, pdf)

Endnote

Decision last updated: 01 April 2025