State of New South Wales v Hamze (Final)

Case •

[2025] NSWSC 6

•

20 January 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: State of New South Wales v Hamze (Final) [2025] NSWSC 6
Hearing dates: 12 December 2024
Date of orders: 20 January 2025
Decision date: 20 January 2025
Jurisdiction:Common Law
Before: Yehia J
Decision:

(1) The plaintiff’s amended summons filed on 29 August 2024 is dismissed.

(2) The plaintiff is to pay the defendant’s costs.

Catchwords:

HIGH RISK OFFENDER – final hearing – whether the index offence is a “serious violence offence” – the meaning of the words “of a kind” in s 5A(1)(b) – whether the elements of the index offence “contemplate” the elements of s 33(1)(b) of the Crimes Act 1900 (NSW) – summons dismissed

Legislation Cited:

Community Protection Act 1994 (NSW)

Crimes Act 1900 (NSW), ss 29, 33A, 33(1)(b), 86(3), 98, 421

Crimes (High Risk Offenders) Act 2006 (NSW), ss 4A, 5A, 5B, 5I, 9, 11, 18CA, 22, 24AB

Crimes (High Risk Offenders) Amendment Act 2014 (NSW)

Crimes (High Risk Offenders) Amendment Act 2016 (NSW)

Crimes (High Risk Offenders) Amendment Act 2017 (NSW)

Crimes (Serious Sex Offenders) Act 2006 (NSW)

Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW)

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

Habitual Criminals Act 1905 (NSW)

Habitual Criminals Act1957 (NSW)

Cases Cited:

Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11

Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46

Grant v R [2014] NSWCCA 67

Kable v DPP (NSW) (1996) 189 CLR 51; [1996] HCA 24

Lane v R [2013] NSWCCA 317; 241 A Crim R 321

Lynn v State of New South Wales [2019] NSWCA 300

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Berchet (1688) 1 Show KB 106; 89 ER 480

State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311

State of New South Wales v Dennis (2024) 114 NSWLR 215; [2024] NSWSC 388

State of New South Wales v Windle (No 6) (Final) [2020] NSWSC 753

Texts Cited:

Crimes (High Risk Offenders) Amendment Bill 2014 (NSW)

Crimes (High Risk Offenders) Amendment Bill 2016

Crimes (High Risk Offenders) Amendment Bill 2017 (NSW)

Crimes (Serious Sex Offenders) Amendment Bill 2013

Crimes (Serious Sex Offenders) Amendment Bill 2013 (NSW)

Crimes (Serious Sex Offenders) Bill 2006 (NSW)

Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2016 (NSW)

Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2017 (NSW)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 March 2006

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 February 2013

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2016

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017

NSW Department of Justice and Attorney-General, Review of the Crimes (Serious Sex Offenders) Act 2006 (2010), (November 2010)

NSW Sentencing Council, High-Risk Violent Offenders: Sentencing and Post-Custody Management Options, (May 2012)

T Tulich, “Post-Sentence Preventive Detention and Extended Supervision of High Risk Offenders in New South Wales”, (2015), 38(2) UNSW Law Journal

Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
Wesam Hamze (Defendant)
Representation:

Counsel:
J Emmett SC (Plaintiff)
H Blake (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Andrew Scali Solicitors (Defendant)
File Number(s): 2024/00268777

JUDGMENT

  1. By way of amended summons filed on 29 August 2024, the State of New South Wales (“the plaintiff”) seeks the following orders against Wesam Hamze (“the defendant”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

  1. Pursuant to ss 5B and 9(1)(a) of the Act, that the defendant be subject to an Extended Supervision Order (“ESO”) for a period of 12 months from the date of the order; and

  2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in the Schedule to the Summons.

  1. On 17 October 2024 the matter came before me by way of Preliminary Hearing. On that occasion the defendant was not represented and did not make submissions about whether the index offence was a “serious violence offence” as defined in s 5A of the Act.

  2. On that occasion I was satisfied that the threshold questions should be answered in favour of the plaintiff, and I made an order appointing two qualified psychiatrists or two registered psychologists (or a combination of such persons) to examine the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court. I also imposed an Interim Supervision Order (“ISO”) commencing on 22 October 2024 for a period of 28 days: State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311. To the extent that it is necessary, this judgment should be read in conjunction with the judgment on the preliminary hearing (“the preliminary hearing judgment”).

  3. The ISO was subsequently extended on 12 November 2024 for a further period of 28 days, expiring on 16 December 2024.

  4. The final hearing of the plaintiff’s application for an ESO, was listed before me on 12 December 2024. At the conclusion of the final hearing, I made further orders extending the ISO for a further period of 28 days and extending the current pseudonym order to 20 January 2025.

  5. The critical issues for determination on the final hearing are threefold. First, is the index offence a “serious violence offence” by virtue of s 5A(1)(b)? Second, does the defendant pose an unacceptable risk? Third, what are the appropriate conditions in the event that the first two questions are answered in favour of the plaintiff?

  6. In support of the application the plaintiff relies on four affidavits of Stephanie Breen dated 22 July 2024 (and Exhibit SB-1, annexed to it), 28 August 2024, 11 October 2024 and 6 December 2024. The plaintiff also relies on the affidavit of Jessie Slattery-McDonald dated 11 October 2024 and the reports of the Court appointed experts.

  7. The defendant relies on the affidavit of Shant Hekimian dated 1 December 2024, the affidavit of Sophia Rosentool dated 2 December 2024, the affidavit of Larissa Ala dated 2 December 2024 and the affidavit of Andrew Scali dated 2 December 2024.

Factual background and relevant criminal history

  1. I summarised the factual background and the defendant’s relevant criminal history in the preliminary hearing judgment at [14]-[33]. It is not necessary to reproduce that summary here.

  2. In compliance with the orders I made on 21 October 2024, the defendant was examined by two Court appointed experts, Dr Carollyne Youssef and Ms Ahu Kocak and the reports were furnished to the Court on 13 November 2024.

  3. The Court’s power to make an ESO is discretionary. Sections 9(2) and (3) of the Act provide for several mandatory considerations to which the Court must have regard in determining whether or not to make an ESO.

Section 9 Relevant Considerations

  1. In determining whether to make an ESO, I am required to have regard to the matters set out in s 9(3) of the Act. The summary of the evidence with respect to s 9(3) considerations is set out in the preliminary hearing judgment at [53]-[77].

  2. In addition to that evidence, the plaintiff relies upon the reports of the two Court appointed experts, Dr Youssef and Ms Kocak. The contents of those reports are summarised as follows.

Dr Youssef

  1. The defendant was interviewed by Dr Youssef on 4 November 2024. Dr Youssef described the defendant as “friendly and easy to engage with, quickly establishing rapport” and noted that “there was some impression management observed during the interview, especially concerning his ability to manage any current risks, which led him to deny the presence of any potential concerns or issues”.

  2. When asked about current self-management, the defendant responded:

“75. …[that] he is no longer on this pathway and is not concerned there will be a lapse for him, saying, “there are no risk factors at all, nothing at all, I’ve prepped myself well”. He identified the following as perpetuating factors to his offending behaviour; “upbringing, area I grew up in, people I surrounded myself with”. Notably, Mr Hamze showed no indicators of victim empathy when discussing them.”

  1. A number of risk assessment tests were administered during the interview. The results of the Hare Psychopathy Checklist – Revised, Second Edition (“PCL-R”) reveal that:

“90. Mr Hamze’s score on Factor 2 items, placing him in the 68th percentile, indicates a moderate-high degree of impulsivity, irresponsibility, and antisocial behaviour. He may engage in risk-taking or criminal activities, showing a clear disregard for social norms and rules. While not necessarily overtly violent or chronic, his behaviour could still involve criminality or violations of societal expectations, often driven by the need for stimulation, excitement, or immediate rewards. Mr Hamze’s impulsivity and tendency to act without considering the long-term consequences may also lead to problems in maintaining stable employment, relationships, or social roles.

91. Overall, Mr Hamze demonstrates a high level of psychopathic traits, by clinical standards, particularly in terms of a high degree of interpersonal traits combined with a moderate-high behavioural manifestation. Intervention and supervision strategies should prioritise addressing Mr Hamze’s manipulative behaviours and reducing the risk of exploitation, while closely monitoring his social interactions to prevent further antisocial conduct and associations. This should be coupled with tailored therapeutic interventions and structured community integration to support positive behavioural change and its maintenance.”

  1. The defendant was also assessed using the Violence Risk Appraisal Guide – Revised (“VRAG-R”). His category of risk of violent recidivism places him in the ninth “risk bin” or the highest of nine “risk bins” categories. 76% of those in Mr Hamze’s category are expected to meet the criteria for violent recidivism within five years and 87% within twelve years.

  2. Dr Youssef acknowledges the limitations of risk assessment tools. She stated that “it is not scientifically possible to accurately predict whether a specific offender will or will not actually reoffend.”

  3. The Historical Clinical Risk Management tool – Version 3 (“HCR-20v3”) was also utilised which combined the relevant historical, clinical and risk management factors relevant to the defendant. In relation to risk management factors, Dr Youssef considered the following to be relevant:

  1. Future problems with professional services and plans: The defendant indicated that he was willing to continue to see his psychologist but does not intend to continue engaging with professional services thereafter if no order is imposed. Considering the defendant’s past criminal history, Dr Youssef opined that this is a relevant and present risk factor. The defendant would benefit from the continued “development of more explicit plans and goals for his ongoing professional engagements.”

  2. Future problems with the defendant’s living situation: The defendant’s current living situation is “stable” however Dr Youssef is of the view that it is a “highly relevant risk factor” in the event of a relationship breakdown with his wife. This may lead to him relocating back to “problematic suburbs and increasing his risk of engaging with antisocial associates.”

  3. Future problems with personal support: The defendant reported to Dr Youssef that his primary support was his wife and some family members. He reported that he “tends to deal with his problems himself and is unlikely to involve others or to seek assistance/support.” Dr Youssef noted that there are no current plans in place to expand the defendant’s support network. She has also expressed concerns about his ongoing associations with his co-offenders. In particular his intention to hire his brother when he is released from custody, who was one of the co-offenders in the Smithfield offence.

  4. Future problems with treatment or supervision response: The defendant is of the view that he does not require any further treatment or services. There have been consistent reports that reveal that the defendant “impression manages”, especially in relation to his progress since his release to parole. Dr Youssef has noted that “this can present challenges for supervision, particularly if there are ongoing issues that Mr Hamze is not being forthcoming about, as has been the case during previous parole releases. While compliance may not be a concern, his responsiveness to intervention could be.”

  5. Future problems with stress or coping: Dr Youssef observed that the defendant “has a history of poor coping and problem-solving skills and may default to unhelpful coping strategies, or resort to criminal, aggressive and violent behaviour, if he is unable to utilise adaptive coping skills.” She identified that although the defendant’s current situation is “ideal” his limited coping strategies “…[would leave] him vulnerable to challenges when faced with common life stressors in the future.” He reported that one of his coping strategies is “walking away” during stressful situations.

  1. Dr Youssef administered the Structured Assessment of Protective Factors for Violence Risk (“SAPROF”). Protective factors include the defendant’s present employment and his primary support which is his wife. Dr Youssef opined that the defendant “requires a further period to practise coping skills especially when faced with stressful situations.”

  2. Dr Youssef is of the view that the defendant poses a risk of committing a further serious violence offence without a further period of supervision.

  3. The stability of the defendant’s marriage and the increased risk that he would pose in the event his marriage deteriorated, assumed some significance in the proceedings. The defendant’s wife Larissa Ala was cross-examined by Mr Emmett SC. She gave evidence that she was introduced to the defendant through a mutual friend about 12 months before he was released to parole. She was put in touch with the defendant as she was seeking advice about Islamic divorce. She denied being in touch with the defendant to help her resolve a debt and denied that he had assisted her with a debt that was owed to her and her company while he was in custody. After about six months the defendant and Ms Ala began discussing the possibility of a romantic relationship between the two.

  4. Ms Ala was cross-examined in relation to the defendant’s priorities, particularly in relation to having more children. Much of her evidence on this topic is of a highly personal nature and it is unnecessary to set out in detail. She acknowledged that it was extremely important to both her and the defendant that they have children together. Ms Ala gave detailed evidence about the unsuccessful attempts, to date, to have children. She was questioned about the ramifications on the marriage, in the event that she could not have a child:

“Q. And have you had any discussions about what might happen, if that doesn’t happen?

A. Yes, we have.

Q. Can you help the Court understand what those discussions are?

A. If that doesn’t happen then that’s God’s plan and we accept that, but we are going to try to do everything that we can while we are still at the right age to make that eventuate.

Q. Have you had any discussions about the possibility of the relationship breaking down?

A. We haven’t needed to discuss that because our relationship is strong and healthy. I don’t think that is something that people discuss until they’re actually in crisis mode that’s from my past experience with a divorce.”

  1. Another area of significance is the defendant’s financial situation and the increased risk that may present in the event that he no longer had a legitimate means of making money. The defendant and his wife run a business, Strata Remedial Group Pty Ltd (“Strata Remedial Group”) with Mr Gabriel Pike. Strata Remedial Group has been trading since 2019. The business operates across residential and commercial building sites. It focuses on residential renovations, residential restoration works, building maintenance services and some commercial building work.

  2. Ms Ala gave evidence in relation to the defendant’s financial interest in the business:

“Q. Can I ask you about the shareholding in the business, am I right he has 20 shares in the business?

A. That’s right.

Q. And you have 25?

A. No.

Q. Sixty‑five?

A. No. So, I have 40 shares, Gabriel Pike has 40 shares, and Calhoun has 20 shares. So Gabriel and I both used to be 50% shareholders, we decreased our shares by 10% each, so that we could give 20% to Calhoun, which was well deserved based on the revenue that he brought in and the customers.”

  1. Ms Ala gave evidence that if the marriage ended, the company would not be dissolved, suggesting that the defendant would continue to have a financial interest in the business:

“Q. And have you had any discussions with Calhoun about what would happen in the business, if the relationship broke down, your relationship?

A. When Calhoun and I got married ‑ any agreements that ‑ or any discussions we had about the end of the marriage happened at the time of the marriage, we do that with the sheikh, who is the religious person who marries us. So we’ve had conversations about how that situation plays out and it hasn’t really involved the business as such. However, it wouldn’t make any sense to dissolve a company because a marriage isn’t working out; business is business and marriage is marriage.”

  1. Ms Ala was an impressive witness. She understood the triggers that were identified as potential risk factors. Ms Ala maintained that her marriage is strong but, in the event that there was a breakdown in the relationship, the defendant would continue to have a financial interest in the business.

Ms Kocak

  1. The defendant was interviewed by Ms Ahu Kocak on 6 November 2024. The results of that report are summarised as follows.

  2. The defendant acknowledged that his “problematic antisocial behaviours and propensity to use violence has been long outstanding.” Engaging in such behaviours provided him with money, power and status amongst others. He admitted that he had a long-standing history of engaging in illicit activity to fund his lifestyle or “perpetuate his sense of belonging and status amongst other antisocial peers.”

  3. The defendant’s difficulty in regulating and controlling his behaviour is reflected in his early behavioural issues, his criminal offending and lifestyle before entering custody. Ms Kocak identified that the defendant is “able to intellectually show remorse and empathy for both his victims and those that he feels responsible for” however, he struggles in emotional regulation and being able to manage his anger.

  4. Since his release from custody, the defendant has a number of prosocial supports in the community including his partner and her family. He reported that this is something “he had never had before”. He is residing in the city which is considered a highly protective factor that deters him from associating with past associates and influences in the western suburbs.

  5. The defendant is trying to have a child with Ms Ala. He is committed to staying out of gaol to provide his children with the support and guidance he never had growing up. The defendant also has the support of Imams in the community. Ms Kocak stated that the defendant appears to be “indifferent” to the imposition of an ESO and does not think it is necessary in regulating his behaviour or managing risk.

  6. The defendant reported to Ms Kocak that even in the event of a relationship breakdown he would still “accrue a financial income”. This was recounted as follows:

“Mr Hamze discussed his progress since his release in vigour. He stated that he commenced working at the Strata management company that his now partner owns, and that he now is a 20% shareholder. He made a point to state that if his relationship broke down, he would still accrue a financial income from the joint venture which he felt secure about. He detailed that he had grown the company to connect with his networks in hospitality and building, and that the turnover in the last eight months was ‘$920,000.’ He stated that he had never earned money legitimately and felt positive about his future.”

  1. Mr Hamze was administered the Minnesota Multiphasic Personality Inventory-3 (“MMPI-3”) which indicated that “although he responded in a consistent and deliberate manner”, his scores revealed concerns “about the possible impact of under-reporting”.

  2. Ms Kocak noted the limitations of risk assessment tools as follows:

“The prediction of violence and aggression is challenging due to the diversity of clinical presentation and the inability of a single broad predictive (assessment) tool is both validated and reliable in all circumstances where violence and aggression needs to be predicted.”

  1. The defendant was assessed using the Violence Risk Scale – Version 2 (“VRS-2”) which places him in the category of Risk Level III, which is a middle band comprising the largest proportion of correctional cases. Ms Kocak also administered the Historical Clinical Risk Management tool – Version 3 (“HCR-20v3”) to the defendant. The results revealed that the defendant’s “historical and future risk factors place him in the Moderate range of potential violence.” Ms Kocak outlined the results in relation to the historical and clinical scale as follows:

“59. The HCR-20 v3 was applied on 9 November 2024. As per the author’s recommendations, the presence or absence of clinical scale items was evaluated within the past six months. The assessment placed Mr Hamze’s historical scale in the high range, due to a history of problems with violence as an adolescent and adult (high relevance), other antisocial behaviour as an adolescent and adult (high relevance), non-intimate relationships (high relevance), employment (high relevance), substance use (low relevance), antisocial personality (high relevance), adverse childrearing experiences (moderate relevance), violent attitudes (high relevance), and treatment or supervision response (Moderate relevance).

60. The clinical scale is assessed at being in the Low range, with the partial presence of problems with insight into violence risk (high relevance) however, no recent problems with violent ideation or intent, symptoms of major mental disorder, instability, or treatment and supervision response. The Risk Management scale is assessed at being in the moderate range with the possible presence of future problems in relation to living situation (high relevance), personal support (moderate relevance), treatment responsiveness (high relevance) and stress or coping (moderate relevance).”

  1. Based on the risk assessment findings, Ms Kocak summarised the following risk scenarios that may apply to the defendant:

  1. The defendant may commit an act of violence against a person to “right a wrong.” If there is a perceived threat to himself or his family, he may feel the need to reach out to past criminal associates and attempt to access firearms for retribution.

  2. Past criminal associates may reach out to him seeking his assistance in resolving problems which may involve engaging in criminal behaviour or through the use of weapons.

  1. Ms Kocak observed that:

“65. Overall, the potential for a serious act of violence specific to Mr Hamze, would require that the risk factors play three functional roles with respect to his decision to engage in violence. These roles can motivate, disinhibit or destabilise his decisions. For violence to be an attractive choice, Mr Hamze would need to be motivated by the rewards of the conduct he chooses to engage in such as financial or social status. He would need to be less likely to be influenced by restraints, prohibitions or prescriptions against violence, regardless of whether these are intrinsic or extrinsic in nature. For example, his level of remorselessness or empathy towards the victim would have to lessen as would his desire to remain in the community for his family and children. The presence of destabilising factors such as losing his income, access to his children, his social supports and potentially returning to his old neighbourhood may increase stressors that disturb his ability to monitor and control decision making.”

  1. Ms Kocak concluded that although the defendant “is assessed at being a moderate risk of future violence” he remains committed and motivated to live a crime free life, stating:

“69. Mr Hamze’s current risk factors are primarily driven by his long standing history and inability to be deterred by previous community supervision as well as becoming involved with others who continue to be tangled in criminal activities, including close family. However, Mr Hamze has demonstrated an ability to regulate his interactions with these individuals whilst under supervision. These scenarios have not yet been tested whilst in the absence of supervision or conditions, however Mr Hamze’s intrinsic motivation to remain an offence and violent free lifestyle appears to be increasing.”

The Index Offence

  1. On 12 November 2015, I sentenced the defendant to an aggregate sentence of 9 years imprisonment for the following three offences:

  1. Discharge firearm with intent to cause grievous bodily harm, contrary to s 33A of the Crimes Act 1900 (NSW) (the “index offence”).

  2. Aggravated detain for advantage, contrary to s 86(3) of the Crimes Act.

  3. Assault with intent to rob, whilst armed with an offensive weapon and causing grievous bodily harm, contrary to s 98 of the Crimes Act.

  1. The first two offences were described as the “Smithfield incident”. The third offence was described as the “Rydalmere incident”. A number of further offences were taken into account on a Form 1.

  2. The facts of the Smithfield incident were that at some point prior to 23 June 2013, the defendant decided that he wanted to buy a gun and was put in contact with the victim. The victim attended the defendant’s home and collected $5500 in cash. The agreement was that the victim would use the money to buy a firearm and return to the defendant’s home shortly afterwards.

  3. As the day went on, the defendant became increasingly suspicious that the victim had reneged on the deal. He rang the victim at 8:00am and accused him of “ripping” him off. The defendant began speaking to others in order to organise retribution against the victim.

  4. The defendant arranged for an associate to lure the victim to Smithfield Tavern. The defendant and his co-offenders confronted the victim in his vehicle at 9:50 pm.

  5. The victim was shot in his thigh and sustained injuries including a broken femur. He was pushed into his own car and abducted by the offenders. The defendant took $2000 from the victim and told him that he would be shot in the other leg if the balance of funds were not returned. The victim was dropped off at Auburn Hospital at 10:08pm. The victim’s vehicle was set on fire and destroyed shortly afterwards.

  6. The defendant was sentenced as the “principal” offender in the criminal activity.

The preliminary threshold questions

  1. I am satisfied that the defendant is an “offender” and a “supervised offender” for the purposes of ss 4A and 5I of the Act.

  2. The first issue in contention is whether the index offence falls within the definition of a “serious violence offence” contained in s 5A of the Act. Section 5A provides:

5A Definition of “serious violence offence”

(1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person—

(a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(a1) an offence under the Crimes Act 1900, section 37(1) or (2), or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) or (a1).

(2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

(2A) A reference in subsection (1) (a) to—

(a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and

(b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and

(c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.

  1. As indicated above, the defendant was not represented at the preliminary hearing. On that occasion the plaintiff submitted that the index offence fell within the definition contained in s 5A(1)(b) of the Act on the basis that the elements of the index offence “necessarily comprehend” the elements of an offence contrary to s 33(1)(b) of the Crimes Act, namely, attempting to cause grievous bodily harm with intent to cause grievous bodily harm.

  2. I was not assisted by submissions on this point from the defendant. As noted in the preliminary hearing judgment, the issue was a technical legal issue, and I did not expect the defendant to engage with it. I was prepared to find on that occasion that the index offence fell within the definition of a serious violence offence under s 5A(1)(b).

  3. The defendant is represented on the final hearing. Although he does not dispute that he is an “offender” and a “supervised offender” for the purposes of ss 4A and 5I of the Act, there has been a robust challenge to the plaintiff’s assertion that the index offence meets the definition of a “serious violence offence” in either s 5A(1)(a) or (1)(b) of the Act. It is therefore necessary, in my view, to revisit this issue in more detail.

Submissions

Plaintiff Submissions

  1. The threshold issue as to whether the index offence is a “serious violence offence”, was addressed most comprehensively in the plaintiff’s written submissions in reply. The submissions were developed during the hearing.

  2. Mr Emmett SC, on behalf of the plaintiff, submitted that the offence of discharging a firearm with intent to cause grievous bodily harm, necessarily comprehends all the elements of an offence against s 33(1)(b) of the Crimes Act, namely attempting to cause grievous bodily harm with intent to cause grievous bodily harm.

  3. The language “necessarily comprehends” is taken from the judgment of Leeming JA in Lynn v State of New South Wales [2019] NSWCA 300 (“Lynn”), in which his Honour observed at [27] that a “…guilty plea to manslaughter on the basis of excessive self-defence necessarily comprehends all of the elements of the offence of murder.”

  4. The plaintiff submitted that having regard solely to the elements of the index offence, it is an offence that necessarily comprehends both the physical and mental elements of an attempt to commit an offence against s 33(1)(b). The elements of an offence against s 33A are not merely similar to the elements of an attempt to commit an offence against s 33(1)(b), but, if proved, the elements of the former offence, would also establish the latter offence.

  5. This argument was referred to in oral submissions as the “simple case”. A separate, although related, argument relied upon by the plaintiff, entails a consideration of the words “of a kind”, contained in s 5A(1)(b) of the Act. The plaintiff submitted that those words have work to do. This secondary argument is broader and may capture more offences than those specifically referred to in s 5A(1)(a).

  6. In relation to this broader argument, the plaintiff placed some reliance on the decision of Hoeben CJ at CL (as His Honour then was) in the State of New South Wales v Windle (No 6) (Final) [2020] NSWSC 753. The index offence in that case was an offence contrary to s 29 of the Crimes Act, namely strangulation with intent to commit murder. In determining that an ESO should be imposed, his Honour concluded that the index offence was “of the same kind as that in s 5A(1)(a) of the CHRO Act for the purpose of the definition of ‘serious violence offence’.”

  7. His Honour did not set out the reasoning underpinning that conclusion. It is difficult to ascertain from the judgment what the process of analysis or reasoning was, that led to the broader interpretation of the words “of a kind”. The decision is of limited assistance on the question I must decide.

Defendant Submissions

  1. The defendant contends that the reasoning in Lynn does not assist the plaintiff because it is simply not applicable to an offence pursuant to s 33A. Unlike the situation in Lynn, in order to establish the elements of an offence pursuant to s 33A, the Crown does not need to establish the elements of an offence pursuant to s 33(1)(b) of the Crimes Act. They are two separate and distinct offences which are unrelated, with entirely different elements.

  2. Lynn is said to be entirely distinguishable from the present case. Leeming JA’s finding that manslaughter on the basis of excessive self-defence necessarily comprehends all of the elements of the offence of murder, does not stand for authority that offences, simply because they share similar elements, “necessarily comprehend” the elements of each other.

  3. Furthermore, the defendant submitted that s 33A does not fall within the definition contained in s 5A(1)(b) of the Act. The reference to attempt, is a reference to an attempt to discharge a firearm, which does not include, as an element of the offence, an attempt to cause grievous bodily harm. Rather, it relates only to the actus reus, the discharging of, in this case, a firearm.

  4. The defendant relied upon extracts of the Second Reading Speech for the 2013 Amendment Bill, in support of the contention that it is not Parliament’s intention to extend the definition of “serious violence offence”, to offences involving the use of a firearm with intent to cause grievous bodily harm. The defendant submitted that further support for that contention lies in the fact that despite significant review of the question by Parliament in 2016 and 2023, there has been very little change to the wording of s 5A.

  5. The defendant urges a narrow interpretation of s 5A(1)(b), arguing that the words “of a kind”, convey no more than a reference back to the offences contained in s 5A(1)(a).

Is the index offence a “serious violence offence”?

  1. Determination of this threshold issue requires stepping back from the precise terms of the essential question (at least initially) to focus, more generally, on the history of the legislation and Parliament’s intention.

  2. In the State of New South Wales v Dennis (2024) 114 NSWLR 215; [2024] NSWSC 388 (“Dennis”), I set out the history of the legislation, dating back to the beginning of the 20th century with the Habitual Criminals Act 1905 (NSW): Dennis at [69]-[100]. Some of that history is worth reproducing in this judgment: Dennis at [77]-[100].

  3. Following the successful challenge in the High Court to the Community Protection Act 1994 (NSW) (now repealed): see Kable v DPP (NSW) (1996) 189 CLR 51 at 63; [1996] HCA 24 (“Kable”) a series of Bills emerged, seeking to introduce post-sentence preventative detention schemes targeted towards serious sex offenders. [1]

    1. T Tulich, “Post-Sentence Preventive Detention and Extended Supervision of High Risk Offenders in New South Wales”, (2015), 38(2) UNSW Law Journal 823, 828.

  4. In 2003 the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) came into force in Queensland, which introduced a scheme of supervision orders and post-sentence preventative detention. In effect, the Dangerous Prisoners (Sexual Offenders) Act is similar to NSW legislation relating to high risk offenders, which will be discussed below.

  5. Like the Community Protection Act, the Dangerous Prisoners (Sexual Offenders) Act was subject to constitutional challenge. However, unlike the decision in Kable, the High Court in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 (“Fardon”) held that the legislation was constitutional. This had the effect of acting as a “green light” for a number of other states, including NSW, to introduce post-sentence preventative detention schemes. [2]

    2. T Tulich at 829, fn [1].

  6. Two years after the decision in Fardon, in 2006 the New South Wales Parliament introduced the Crimes (Serious Sex Offenders) Bill 2006 (NSW). The Bill was directed towards targeting:

“a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison…These concerns are compounded where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised. The bill addresses this problem by allowing this small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody.” [3]

3. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 March 2006 at 21730.

  1. The Crimes (Serious Sex Offenders) Act 2006 (NSW) commenced operation on 3 April 2006.

  2. It is helpful at this point to note that the Crimes (Serious Sex Offenders) Act 2006 (NSW) was subject to a number of amendments one of which broadened the scope of the Act to violent offenders, such that the name of the Act was amended to the Crimes (High Risk Offenders) Act 2006 (NSW). The amending acts of relevance, that will be discussed below, are the:

  1. Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW);

  2. Crimes (High Risk Offenders) Amendment Act 2014 (NSW);

  3. Crimes (High Risk Offenders) Amendment Act 2016 (NSW); and the

  4. Crimes (High Risk Offenders) Amendment Act 2017 (NSW).

  1. In March 2013, the Crimes (Serious Sex Offenders) Amendment Bill 2013 (NSW) (“2013 Amendment Bill”) was introduced for the purpose of broadening the scope of the Crimes (Serious Sex Offenders) Act 2006 (NSW) to apply to violent offenders who had not engaged in sexual offending.

  2. The 2013 Amendment Bill was precipitated by an examination of the Crimes (Serious Sex Offenders) Act 2006 conducted by the New South Wales Sentencing Council commencing in 2009, and a Statutory Review of the Act in 2010. During the course of the Statutory Review, in April 2010, and in line with a direction from the Premier of New South Wales, Corrective Services undertook an audit of all ”serious offenders” in custody. [4] The audit was designed to identify which violent offenders were not taking responsibility for their actions; identify which offenders were participating in rehabilitation programs; and help determine whether stricter orders should be implemented to keep offenders incarcerated. [5] The Statutory Review noted that despite its infrequent use, the Habitual Criminals Act1957 (NSW) had not yet been repealed, and was still the law in New South Wales and considered that the issue of post-custody management options for high risk violent offenders should be referred to the New South Wales Sentencing Council. [6] In the New South Wales Sentencing Council’s Report published in May 2012, the majority of the New South Wales Sentencing Council reached a view that with respect to the legislative framework that existed in NSW at the time ”there [was] a gap that might justify an additional sentencing or post-custody management option for high-risk violent offenders.” [7]

    4. NSW Sentencing Council, High-Risk Violent Offenders: Sentencing and Post-Custody Management Options, (May 2012) at 1 [1.2].

    5. NSW Department of Justice and Attorney-General, Review of the Crimes (Serious Sex Offenders) Act 2006, (November 2010) at 80 [3.1].

    6. Ibid at 100 [1.6].

    7. High-Risk Violent Offenders: Sentencing and Post-Custody Management Options, at 124 [5.10] fn 4.

  3. The Crimes (Serious Sex Offenders) Amendment Bill 2013 altered the name of the Act by replacing “Serious Sex Offenders” with “High Risk Offenders”. The Bill also introduced s 5A into the Crimes (High Risk Offenders) Act (as it became known as) which set out the term “serious violence offence” in the following terms:

5A Definition of “serious violence offence”

(1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person:

(a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).

(2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

(3) A serious indictable offence is:

(a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or

(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or

(c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act.

  1. In considering Parliament’s intention as to the operation of the legislation, as amended, it is relevant to briefly reflect on the Second Reading Speech for the 2013 Amendment Bill:

“The New South Wales Sentencing Council in its report on high-risk violent offenders noted that there is a gap in the New South Wales legislative framework for dealing with high-risk violent offenders. This bill closes that gap by expanding the scheme in place for sex offenders that has been tested in the High Court. It does not try to reinvent the wheel, but picks up these tried provisions and extends them to high-risk violent offenders.” [8] (Emphasis added.)

8. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 February 2013 at 17680.

  1. Helpfully, comments in the Second Reading Speech for the 2013 Amendment Bill also shed light on the meaning of ”serious violence offence” and what comprises a ”serious violence offence”:

“Item [5] of schedule 1 sets out the definition of a “serious violence offence”. As the New South Wales Sentencing Council pointed out, defining who is a high-risk violent offender is a difficult task. The first step in the process is defining which violent offenders are eligible for the scheme. In the case of sex offenders, this is relatively simple: Eligibility is defined by identifying a list of sex-specific offences. However, violence arises from a wide range of human behaviours. The bill has taken a different approach by describing more broadly the activity that is subject to these provisions.

For an offender to be eligible for consideration under the proposed new provisions he or she must have committed an offence with a serious outcome—the death of, or grievous bodily harm to, another person. That physical outcome must be accompanied by a mental element of intending to cause, or being reckless as to causing, actual bodily harm, grievous bodily harm or death. Recklessness as to actual bodily harm has been included as a reflection of recent amendments by this Government to the provisions governing reckless infliction of harm. Those amendments clarified that recklessness is the relevant fault element for those offences. It is appropriate that this fault element should also apply for the purposes of identifying relevant serious violence offences under this scheme.

The definition in the bill also accommodates the fact that in some cases an offender may not have actually caused grievous bodily harm or death. The police may have stopped the offender at the last minute, or the offender may have hired another to commit the physical act for them. Such people should not escape the possibility of being captured by this scheme. The bill, therefore, includes in the definition an attempt, conspiracy or incitement to commit an offence involving grievous bodily harm or death. The bill represents a targeted approach to violent crime. The bill does not extend the possibility of continuing detention and extended supervision to every violent offender in our jails. To qualify, an offence must be a serious indictable offence. A serious indictable offence has the same meaning as it does in the Crimes Act 1900—that is, an indictable offence that is punishable by imprisonment for life or for a term of five years or more. This means, for example, that a person who negligently causes grievous bodily harm will not be eligible. Not only does the mental element of the offence fall short of intention or recklessness, but also the penalty for such an offence is only two years.” [9] (Emphasis added.)

9. Ibid at 17681.

  1. On 19 March 2013 the Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW) commenced operation.

  2. Further amendments were made to the Crimes (High Risk Offenders) Act 2006 (NSW) in October 2014. The Crimes (High Risk Offenders) Amendment Bill 2014 (NSW) was introduced and passed as the Crimes (High Risk Offenders) Amendment Act 2014 (NSW). The 2014 Amendment Act established a High Risk Offenders Assessment Committee (s 24AB of the Act) and introduced ex parte emergency detention orders (s 18CA of the Act), amongst other amendments (none of which provide insight into the origins of or definition of “serious violence offence”). The 2014 Amendment Act also inserted the definition of “serious offence” in the following terms:

serious offence means:

(a) in the context of a high risk sex offender—a serious sex offence, or

(b) in the context of a high risk violent offender—a serious violence

offence.

  1. Two years later, the Crimes (High Risk Offenders) Amendment Bill 2016 was passed. The Crimes (High Risk Offenders) Amendment Act 2016 (NSW) commenced on 7 June 2016 and inserted subsection (2A) into s 5A of the Act to clarify the reference to a “serious violence offence”.

  2. At the time of amendment, s 5A of the Act was in the terms set out at [74] of this judgment.

  3. The provision that was inserted by the 2016 Amendment Act after s 5A(2) provides:

(2A)  A reference in subsection (1) (a) to:

(a)  conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and

(b)  conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and

(c)  conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.

  1. The Explanatory Note to the Crimes (High Risk Offenders) Amendment Bill 2016 (NSW) states that:

“The object of this Bill is to ensure that the class of violent offenders in relation to whom the State can apply to the Supreme Court for orders requiring their continuing detention or extended supervision following the expiry of an existing sentence of imprisonment or period of supervision extends to offenders convicted of any of the following serious indictable offences:

(a) murder that occurs in the course of the commission of another serious crime (known as “constructive murder”),

(b) manslaughter by unlawful and dangerous act,

(c) wounding with intent to cause death or grievous bodily harm.” [10]

10. Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2016 (NSW).

  1. In the Second Reading Speech to the Crimes (High Risk Offenders) Amendment Bill 2016, the Attorney-General stated that, if passed, that Act will apply to violent offenders who have been imprisoned for a number of specific offences:

“The bill will clarify that the Act applies to violent offenders who have been imprisoned for the offences of: wounding with intent to cause grievous bodily harm, manslaughter by unlawful and dangerous act, and murder that occurs in the course of committing another serious crime, known as constructive murder.

The offences have maximum penalties similar to those already clearly covered by the Act. The bill addresses limitations where some very violent crimes, such as shootings and stabbings, are potentially not covered by the Act due to the technical elements of the offence the person was charged with. The Act was intended to cover these types of offending; however, a technical limitation in the drafting of the Act has recently been identified. In some individual cases, there are no distinguishing features between these offences and the offences currently covered by the Act—the nature of the violent offending of people who have been imprisoned for these offences is sometimes just as serious in nature as that of offenders currently covered by the Act. There is a concern that the present definition of “serious violence offence” in the Act could apply haphazardly to some criminal offences but not to others of objectively greater seriousness.” [11] (Emphasis added.)

and

“Finally, the bill clarifies that a serious indictable offence that is constituted by a person engaging in conduct that causes grievous bodily harm includes conduct that wounds another person. The person must still have intended to cause the death of another person or grievous bodily harm. In practice, offenders are often convicted of the offence of wounding when the harm caused was grievous bodily harm. This is because it is easier for the prosecutor to prove the offence of wounding, and the same maximum penalty applies. This is creating a limitation in the Act whereby people who have engaged in the same criminal conduct, such as shooting or stabbing someone, are either covered or not covered by the Act depending on the offence they were charged with and convicted of.

Currently, an offender who is convicted of attempting to cause grievous bodily harm but who in fact did not harm the victim would be covered by the Act, but an offender who is convicted of actually wounding the victim would not be covered. This bill will address these limitations by clarifying that applications can be made in respect of offenders serving sentences of imprisonment for the offence of wounding with intent to cause grievous bodily harm. It is the offenders who are serving sentences of imprisonment for wounding—but who intended to cause grievous bodily harm—to which it is envisaged that the Act would now apply in practice.” [12]

11. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2016 at 53-54.

12. Ibid at 55.

  1. The Attorney-General made clear that up until this amendment, a number of violent crimes were not covered by the Act owing to ”technical elements of the offence”, clearly implying that the ”elements” of the offence are what precluded a number of offences, supporting the contention that it is elements (and only the elements, given there is no reference to evidence beyond the elements) that must be used to determine the nature of a ”serious violence offence”.

  2. It is also noted in that Second Reading Speech that prior to the 2016 Amendment Act there was a “limitation in the Act whereby people who have engaged in the same criminal conduct… are either covered or not covered by the Act depending on the offence they were charged with and convicted of.” The limitation in the Act stemmed from certain offences falling within the definition of a “serious violence offence” based on their elements only.

  3. The Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) was subsequently introduced and passed as the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) to further amend the Act. Of relevance, the definition of “serious offence” was amended in the following manner:

[8] Section 4, definition of “serious offence”

Omit the definition. Insert instead:

serious offence means:

(a) a serious sex offence, or

(b) a serious violence offence.

  1. The 2017 Amendment Act related to ”eligibility requirements” and was targeted towards ”generalist offenders” who have a history of ”general offending rather than only committing one category of offence”. [13]

    13. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 283.

  2. The Explanatory Note to the Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) states that an object of the Bill is:

“(a) to remove the distinction between the two categories of high risk offender so that orders for the continued supervision and detention of high risk sex offenders and high risk violent offenders may be made if an offender poses a risk of committing either a serious violence offence or serious sex offence and to make consequential amendments throughout the Principal Act (Schedule 1 [1], [3]–[8], [14], [15], [17], [21], [24], [25], [27], [30], [31], [35], [38], [41], [42], and [58]–[60]).” [14]

14. Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2017 (NSW).

  1. The Second Reading Speech for the Crimes (High Risk Offenders) Amendment Bill 2017 states:

“…These reforms improve the scheme so that community safety will be the paramount consideration of the court when considering whether to make a continuing detention order [CDO] or ESO; more offenders will be eligible for the scheme as the court will be required to consider an offender’s criminal history and future risk of sex and violent offences, instead of just one or the other; and the test for deciding whether to impose a CDO will be strengthened so that an offender’s risk to the community is considered instead of whether they can be adequately supervised.

The reforms are part of the package of criminal justice reforms. They complete that package by ensuring there are measures in place so that the most serious high-risk sex and violent offenders are subject to a robust framework for post-sentence supervision and detention. I now outline the details of the bill. Items [1], [3] to [8], [14], [15], [17], [21], [24], [25], [27], [30], [31], [35], [38], [41], [42], [50] and [58] to [60] of schedule 1 will remove the distinction between the two categories of high-risk offender so that orders for the continued supervision and detention of high-risk sex offenders and violent offenders may be made if an offender poses a risk of committing either a serious violent offence or a serious sex offence.” [15]

15. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 283.

  1. What can be gleaned from this brief legislative history, is that considerable attention has been given to the objectives of the statutory regime; the offences that should be included within its scope; the operation of the Act; and, its limitations, given the substantial intrusion on the liberty and privacy of the individual, that the making of continuing supervision and detention orders entail.

  2. Several observations can be made from the legislative history and Parliament’s review of the relevant provisions since their inception. First, despite significant review by Parliament in 2016 and 2023, the only change to the wording of s 5A(1) has been the addition of s (a1).

  3. Second, the inclusion of s 5A(2A) by the 2016 Amendment Act, did not extend the definition of a serious violence offence to offences involving the discharge of a firearm with intent to cause grievous bodily harm. The amendments provided for a limited extension of the category of serious violence offences, to include constructive murder, manslaughter by unlawful and dangerous act and conduct that causes the wounding of another person when that conduct is engaged in with an intention to cause the death of another person or grievous bodily harm to another person.

  4. Furthermore, the approach to the question of whether an offence is a serious violence offence, is confined to a consideration of the elements of the offence which is said to constitute a serious violence offence: Lynn at [22], Dennis at [159].

  5. The purpose of construing the text of the statute is to ascertain the intention of Parliament. As Mr Emmett SC pointed out in oral submissions, the enquiry starts and ends with the text of the provision, here s 5A of the Act.

  6. It is common ground that the index offence does not fall within s 5A(1)(a) of the Act. Section 5A(1)(b) provides for an extension of the definition of a “serious violence offence”, insofar as it includes “attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) or (a1).”

  7. What then do the words “of a kind” mean in the context of s 5A(1)(b)? Do the words reflect an intention to broaden the category of “serious violence offences” to include offences of a “type” referred to in s 5A(1)(a) or do the words merely reference the offences in the proceeding subsections?

  8. Parliament’s intention is to be gathered from the language employed having regard to the context in connection with which it is employed. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [71] it was held that “a court construing a statutory provision must strive to give meaning to every word of the provision.”

  9. In Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 at 414, Griffith CJ cited R v Berchet (1688) 1 Show KB 106; 89 ER 480 , in support of the proposition that it was a “ known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful or pertinent”.

  10. The words “of a kind” simply reference the offences identified in the proceeding subsections of s 5A of the Act. It cannot be that Parliament’s intention was to broaden the category of “serious violence offences”, using such ambiguous and vague language. Such a construction would be neither “useful” or “pertinent”. If the intention of Parliament was to so extend the definition of “serious violence offences”, then a clear statement to that effect is required.

  11. Furthermore, it can be concluded from the history set out above and the extrinsic materials, that where Parliament has reviewed the question, limited and specific amendments have been made to the provisions relevant to the definition of a “serious violence offence”. Section 5A of the Act sets out a necessary precondition that must be satisfied before the Court’s jurisdiction is enlivened. It is to be borne in mind that the making of an ESO or a continuing detention order (“CDO”) is a substantial infringement on the liberty and/or privacy of the individual. If it is Parliament’s intention to extend the category of relevant offences, then that intention must be stated in unambiguous terms.

  12. I do not accept the plaintiff’s secondary (although related argument) that the words “of a kind” in s 5A(1)(b) broaden the definition of a “serious violence offence” to a category of undefined and unspecified offences. Such an interpretation is, in my view, contrary to Parliament’s intention that the jurisdiction of this Court to impose an ESO or CDO is only enlivened in clearly defined circumstances.

  13. I turn to consider the plaintiff’s primary contention or, what was referred to during oral submissions, as the “simple” case. Do the elements of the index offence (contrary to s 33A) comprehend the elements of an offence contrary to s 33(1)(b), namely attempting to cause grievous bodily harm with intent to cause grievous bodily harm?

  1. This has been a more challenging question to resolve. Its resolution requires a closer analysis of the decision in Lynn. Mr Lynn appealed, pursuant to s 22 of the Act, from an order made by the primary judge imposing a continuing detention order for a period of 15 months. He was unrepresented on the appeal.

  2. Mr Lynn had pleaded guilty to manslaughter on the basis of excessive self-defence in 2008. The primary judge did not address whether the manslaughter conviction was a serious violence offence because no such point was taken before him. Nor was any such point taken in earlier litigation relating to extended supervision orders that have been imposed.

  3. The facts giving rise to the index offence were that in 2006, Mr Lynn was refused service at a hotel in Parramatta after extensive drinking, and then became involved in an altercation with the victim. A Statement of Agreed Facts attributed to the victim the words, “I will kill you, motherfucker!”, to which Mr Lynn replied, “Not if I get you first”. Mr Lynn stabbed the deceased once, very quickly at the base of the neck above the collarbone. The victim died from blood loss from the stab wound, which had perforated a large vein above the heart and wounded his lung.

  4. Mr Lynn was initially charged with murder. In April 2008 a jury was unable to agree upon a verdict. Mr Lynn’s plea of guilty to manslaughter on the basis of excessive self-defence was accepted by the Crown.

  5. Section 421 of the Crimes Act provides:

421 Self-defence—excessive force that inflicts death

(1)    This section applies if—

(a)    the person uses force that involves the infliction of death, and

(b)    the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary—

(c)    to defend himself or herself or another person, or

(d)    to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2)    The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

  1. If s 421 is satisfied, the section operates to authorise and require a verdict of guilty to manslaughter or otherwise the person would have been guilty of murder. Put another way, a plea of guilty (or a finding of guilt) to manslaughter on the basis of excessive self-defence, necessarily means that all of the elements of murder have been established: Lane v R [2013] NSWCCA 317; 241 A Crim R 321; Grant v R [2014] NSWCCA 67.

  2. Voluntary manslaughter is committed where a killing would otherwise amount to murder but is reduced by reason of some circumstance provided by statute, such as, for example, s 421 of the Crimes Act. Mr Lynn’s plea amounted to an acceptance of all the elements of murder, namely engaging in conduct that caused the death of another person with the intention of causing the death of another person or an intention to inflict grievous bodily harm to another person. In that sense, his plea of guilty to manslaughter on the basis of excessive self-defence, necessarily comprehends all the elements of the offence of murder. The offence to which he pleaded was therefore, a serious violence offence.

  3. In the present case, the elements of the index offence comprise of (a) discharging, or attempting to discharge a firearm, and (b) engaging in that conduct with the intention of causing grievous bodily harm. Contrary to the Crown’s written submissions in reply at [5], the index offence does not comprise an element of “an attempt to cause grievous bodily harm”. Lynn can be distinguished because manslaughter by excessive self-defence necessarily means that the elements of murder are established.

  4. Here, while the act of discharging a firearm with an intention to cause grievous bodily harm is conduct from which it could be inferred that there was an attempt to cause grievous bodily harm, such reasoning involves a consideration of the conduct or the circumstances of the offending, as opposed to a focus on the elements of the offence itself. Such an approach would be inconsistent with the accepted principle that the focus is on the elements of the offence, which is said to constitute a “serious violence offence”.

  5. I accept that this is a narrow approach to the interpretation of s 5A of the Act. However, I am drawn to it having regard to the legislative history; Parliament’s review, to date, of the offences constituting a “serious violence offence”; the substantial infringement on the liberty and/or privacy of an individual brought about by the imposition of an ESO or CDO; and, the uncontroversial principle that the approach to s 5A of the Act, requires a focus on the elements of the offence which is said to constitute a “serious violence offence”.

  6. It follows that I am not satisfied that the index offence is a “serious violence offence”. Accordingly, the Court’s jurisdiction is not enlivened. It is not necessary to consider the unacceptable risk test or the conditions that may attach to an ESO.

  7. The orders of the Court are as follows:

  1. The plaintiff’s amended summons filed on 29 August 2024 is dismissed.

  2. The plaintiff is to pay the defendant’s costs.

Endnotes




Decision last updated: 20 January 2025

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Commonwealth v Baume [1905] HCA 11
Commonwealth v Baume [1905] HCA 11
Commonwealth v Baume [1905] HCA 11