State of New South Wales v Heath (a pseudonym) (No 2)

[2022] NSWSC 364

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Heath (a pseudonym) (No 2) [2022] NSWSC 364

Hearing dates:

14 March 2022

Date of orders:

14 March 2022

Decision date:

14 March 2022

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Pursuant to s 19(1) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), the interim detention order made by Harrison J on 17 December 2021, and which was for a period of 28 days from 24 February 2022, is revoked as from 9am on 15 March 2022.

(2) Pursuant to s 10A of the Act, order that the defendant be subject to an interim supervision order (“the interim supervision order”) for 28 days commencing 15 March 2022.

(3) Pursuant to s 11 of the Act, an order directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to the Summons filed on 12 November 2021.

(4)   I grant leave to the parties to approach the Court with respect to the issue of costs.

Catchwords:

HIGH RISK OFFENDER – final hearing – continuing detention order no longer sought – an extended supervision order sought in the alternative – accommodation found – decision reserved as to conditions of the extended supervision order – agreed orders revoking interim detention order and imposing an interim supervision order

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

State of New South Wales v Heath (a pseudonym) [2021] NSWSC 1639

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Anthony Heath (a pseudonym) (Defendant)

Representation:

Counsel:
C Melis (Plaintiff)
D Bhutani (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Karnib Saddick Law Firm (Defendant)

File Number(s):

2021/322014

Publication restriction:

Pseudonym adopted for the defendant

EX TEMPORE Judgment (REVISED)

1. HIS HONOUR: In this matter the State of New South Wales, being the plaintiff, filed a summons seeking relief under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The summons sought relief in two categories: the first being the interim relief, the second being final relief. The application for interim relief sought an interim detention order, together with orders for the examination of, and report on the defendant, by suitably qualified experts.

2. The application came first before Harrison J who, on 17 December 2021, granted interim relief in the form of an interim detention order and made orders for the assessment of the defendant by suitably qualified experts and the furnishing of reports from those experts: see State of New South Wales v Heath (a pseudonym) [2021] NSWSC 1639. The matter has come before me today for final hearing. The summons sought with respect to final relief, a continuing detention order for a period of six months and a further order which would have had the effect of an extended supervision order to come into force at the end of the six month continuing detention order.

3. In the alternative, the plaintiff sought an extended supervision order. This morning the plaintiff indicated that the continuing detention order was no longer sought but, rather, the plaintiff sought only the alternative indicated in the summons, that is, the extended supervision order. This was a position taken as a result of the fact that accommodation had been very recently found for the defendant which would enable him to be released into the community in a stable and supported environment.

4. Whilst the defendant did not consent to the making of an extended supervision order, no submissions have been made against the making of an order per se. There is, however, a substantial argument with respect to what the conditions of any such order should be. In the result, having regard to the nature of the arguments put and the differences between the plaintiff and the defendant, I am not in a position to deliver final judgment today. Consequently, I will reserve my decision.

5. That then raises this complication: on the position taken by the plaintiff, that is, that the continuing detention order is not sought and that accommodation is available effectively from tomorrow, reserving my decision without further order will have the result that the interim detention order currently in place will continue in circumstances where both parties agree that the defendant should be released to the community on some form of extended supervision order. In those circumstances, it seems to me the most desirable course is to fashion orders such that the defendant can be released under the conditions proposed by the plaintiff and to reserve my decision with respect to the final form of such orders.

6. Whilst some of the conditions in the interim supervision order I propose might be more onerous than I would ultimately impose, the alternative would be that the defendant remains in custody whilst I determine precisely what the conditions should be, and that would clearly be more onerous again, and not in my view, the most appropriate course.

7. In those circumstances I propose to accede to the agreed position of the parties which involves making an order revoking the interim detention order and a further order imposing an interim supervision order. In relation to the interim supervision order I am satisfied that the offender's current custody or supervision will expire before these proceedings are determined. I am further satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. In that regard, I adopt the findings made by his Honour Harrison J in determining the interim detention order.

8. I make the following orders:

1. Pursuant to s 19(1) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), the interim detention order made by Harrison J on 17 December 2021, and which was for a period of 28 days from 24 February 2022, is revoked as from 9am on 15 March 2022.

2. Pursuant to s 10A of the Act, order that the defendant be subject to an interim supervision order (“the interim supervision order”) for 28 days commencing 15 March 2022.

3. Pursuant to s 11 of the Act, an order directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to the Summons filed on 12 November 2021.

4. I grant leave to the parties to approach the Court with respect to the issue of costs.

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Amendments

01 April 2022 - Case name corrected

Decision last updated: 01 April 2022