State of New South Wales v Holt

[2022] NSWSC 1684

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Holt [2022] NSWSC 1684

Hearing dates:

5 December 2022

Date of orders:

5 December 2022

Decision date:

05 December 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Adjourn the hearing of this matter, fixed for today, 5 December 2022, and tomorrow, 6 December 2022.

(2) List the matter for further directions before Bellew J on Wednesday 7 December 2022, with a view to fixing a new date for hearing.

(3) Reserve liberty to the parties to apply, if so advised, in respect of Mr Holt’s status as a putative New South Wales post-sentence inmate.

Catchwords:

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 – application for continuing detention order and extended supervision order – adjournment granted

Legislation Cited:

Terrorism (High Risk Offenders) Act 2017 (NSW), s 42

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Michael James Holt (Defendant)

Representation:

Counsel:
P. McDonald SC with T Epstein (Plaintiff)
P. Coady with J Wilcox (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2021/193502

Publication restriction:

Nil

Judgment

1. These proceedings are an application by the state of New South Wales under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) for a continuing detention order, followed by an extended supervision order against the defendant, Mr Holt.

2. When the matter was called this morning, Mr Coady, of learned counsel, who appears with Mr Wilcox of counsel for Mr Holt, sought leave to file in court a notice of motion seeking an adjournment of the proceedings. That notice of motion is supported by the affidavit of his instructing solicitor, Jessica Caligiore, affirmed on 5 December 2022.

3. Ms McDonald of Senior Counsel, who appears for the State, with Ms Epstein of counsel, has informed me that the State does not oppose the application. The ground of the application, if I may say so without any disrespect, is a little obscure, because it relates to what might be referred to as a recently developed or developing situation, which is likely to be material to the nature of the power that the Court is being asked to exercise in the circumstances of this case.

4. May I say that Mr Coady is a very experienced senior junior in this field and has stated his conviction that the adjournment is necessary and having regard to the consideration that learned Senior Counsel for the State agrees that the adjournment is appropriate, I propose to accede to the application, even if the ground remains somewhat obscure.

5. Normally, in this area of discourse, there is a concern about the urgency with which the Court’s powers need to be considered before a decision is made about whether to exercise them. Generally, the jurisdiction of the Court is invoked at a time when the defendant’s release into the community may be imminent.

6. In this particular case, that is not so, I am told by counsel, anyway, because the defendant’s current sentence does not expire until 31 July 2023 and my colleague, N Adams J, has made an order for interim detention, which is currently suspended, by force of s 42 of the Act, because Mr Holt remains in custody serving his sentence. On the face of it, that means that it is unlikely that Mr Holt would be released into the community before August 2023 and accordingly, the urgency which usually attends these matters appears to be absent in the present case. I say “appears to be absent” because it is apparent that Mr Holt has served the non‑parole period of his current sentence and is currently serving the balance of the term in custody. He had previously been refused parole for previous sentence sentences.

7. The State, if I may say so, with respect, is proceeding on an assumption, apparently based upon advice received from counsel, not Ms McDonald or her junior, that Mr Holt is a New South Wales post‑sentence inmate and it appears that that opinion is based upon the consideration that N Adams J did make an interim detention order and directed that a warrant be issued for Mr Holt’s committal to custody under the order. Given that the order is suspended by force of s 42, I have said to counsel that I have some doubt about whether he meets the definition of a New South Wales post‑sentence inmate. It is that status which denies him eligibility for parole.

8. The matter is not formally before me for any decision and other than having expressed my doubt, I am not, in any way, expressing a firm view about the matter. But it is something that should be looked at, because if there is a possibility of a review of his parole status, then the State’s application will need to be dealt with prior to any possible release of Mr Holt on parole by the Parole Authority.

9. Having discussed the matter with counsel, it seems that their preference is that I adjourn the matter for directions before the list judge, who, as it happens, is conducting a list on Wednesday. Further directions can be made by his Honour in relation to any further preparation of the matter and I will accede to that application, always bearing in mind that there are limited dates available in the early part of the new law term for 2023.

10. For these reasons, I make the following orders:

1. Adjourn the hearing of this matter, fixed for today, 5 December 2022, and tomorrow, 6 December 2022.

2. List the matter for further directions before Bellew J on Wednesday 7 December 2022, with a view to fixing a new date for hearing.

3. Reserve liberty to the parties to apply, if so advised, in respect of Mr Holt’s status as a putative New South Wales post-sentence inmate.

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Decision last updated: 08 December 2022