State of New South Wales v John Tozer

[2016] NSWSC 1643

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v John Tozer [2016] NSWSC 1643
Hearing dates:	11 November 2016
Date of orders:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I make orders in accordance with the Short Minutes of Order
Catchwords:	CIVIL LAW – high risk violent offender – serious violence offence – no dispute as to application of Act or conditions of order – preliminary order made
Legislation Cited:	Crimes Act 1900 (NSW), s 33 Crimes (High Risk Offenders) Act 2006 (NSW), ss 5, 7, 10
Category:	Procedural and other rulings
Parties:	Crown Solicitors Office (Plaintiff) AHA Taylor Lawyers (Defendant)
Representation:	Counsel: Dr H Bennett (Plaintiff) Mr E James (Defendant) Crown Solicitors Office (Plaintiff) AHA Taylor Lawyers (Defendant)
File Number(s):	2016/288566

EX TEMPORE JUDGMENT – Revised

1. The State is seeking what is commonly referred to as a "preliminary order" under the Crimes (High Risk Offenders) Act2006 (NSW) in respect of the defendant, Mr John Tozer.

2. The State is represented by Dr Hayley Bennett of counsel and Mr Tozer is represented by Mr James of counsel.

3. There is no issue that this is an appropriate matter for the making of preliminary orders, nor is there an issue at this stage about the conditions of the order proposed by the State.

4. I have considered the evidence contained in or attached to the affidavits of Claudia Pendlebury affirmed on 27 September 2016 and 25 October 2016.

5. I have also considered Dr Bennett's comprehensive and helpful written submissions.

A high risk violent offender

6. If necessary at this stage, I am satisfied to a high degree of probability, that Mr Tozer is an offender to whom the Crimes (High Risk Offenders)Act applies.

7. He is currently serving out a term of imprisonment on parole. That sentence was imposed for a serious violence offence, in this case being the offence of causing grievous bodily harm to a person with intent under s 33(1)(b) of the Crimes Act1900 (NSW).

8. That offence of which he has been convicted satisfies the statutory definition of “serious violence offence” in s 5A(1)(a) of the Crimes (High Risk Offenders)Act. The commission of the offence involved him engaging in conduct which caused grievous bodily harm to the victim, with the intention of causing, or while being reckless as to causing, either grievous or actual bodily harm to the victim.

9. The fact that he has been convicted of that offence and is on parole satisfies the requirements and there can be no doubt about him being an offender for the purposes of s 10B of the Crimes (High Risk Offenders)Act.

10. I have the power to make an interim supervision order, if it appears that: (a) the offender's current custody or supervision will expire before the proceedings are determined; and (b) that the matters alleged in Ms Pendlebury's affidavits, and the attachments to them, if proved at the final hearing would justify the making of a high risk violent offender extended supervision order.

11. Given the need to comply with the necessary pre-trial procedures stipulated by s 7 of the Crimes (High Risk Offenders) Act and the consideration that the balance of  Mr Tozer's term expires on 30 November 2016, I am satisfied that his supervision will expire before these proceedings are determined.

12. The question remains whether my review of the supporting documentation satisfies me that, if the alleged matters are proved at the final hearing, the making of an order would be justified. In approaching that question, I bear in mind that a final order cannot be made unless the Court, determining the question of final relief, is persuaded to a high degree of probability that Mr Tozer presents an unacceptable risk of re-offending.

13. In determining that matter I wish to acknowledge in my reasons that in the past couple of years one might be satisfied that there is evidence to suggest that Mr Tozer is engaged in the process of turning himself around.

14. Since his failure to obtain parole when it was first available in 2015, he does seem to have made an effort in that regard, but I accept the arguments on behalf of the State that those matters are not material to the question which I have to determine at this preliminary stage.

Mandatory considerations

15. I am satisfied from the evidence presented in respect of each of the mandatory considerations under s 9(3) of the Crimes (High Risk Offenders)Act, that if the facts contained in that material are proved at the trial, an extended supervision order would be justified. All of the material put before me, if accepted by the Judge determining the final application, is capable of discharging the statutory standard of proof, of a high degree of probability.

16. I don't think it is necessary for me to go through all of the various factors that have been set out carefully in the written submissions because of the preliminary nature of this hearing, and also because there is no issue between the parties about any matter relevant to that determination.

17. Mr Tozer is now aged 31 years. He was released to parole on 15 July 2016.

18. The index offence was, in the view of the learned sentencing judge a particularly serious one involving quite brutal behaviour including an unprovoked attack on the victim in company, and in concert, with a co-offender. The co-offenders were associates of Mr Tozer in what is referred to as an outlaw motor cycle gang.

19. The second victim was punched violently and repeatedly in quick succession to the head area and as he attempted to protect himself by putting his hands up to cover his head he was kicked and stomped on until security guards were able to pull the offenders away. The victim suffered very serious facial injuries requiring surgical repair.

20. As the sentencing judge pointed out, Mr Tozer pleaded guilty.

21. Although his criminal antecedents were not lengthy, they demonstrated someone with a significant propensity to commit violent offences, and he was convicted of manslaughter in 2005. As a young person there was also a common assault offence on New Year's Eve in 2002 and when he was released from custody for that, he committed an offence involving robbery using a replica firearm which was held to the victim's head, a very significant act of physical violence. He was then, as I have said, on parole for his previous offending.

22. His incarceration for the index offence was, at least initially, characterised by frequent breaches of prison discipline and a failure to engage with the programmes available in custody to assist with and promote his rehabilitation.

23. He should get some credit for appearing to be turning that around, but the application of the various actuarial or statistical tools used for predicting the risk of re-offending generally point to a high risk of re-offending and even after he completed the Violent Offenders Programme, belatedly, in custody, prior to his release on parole, his rating on a re-application of one of those tests indicated a moderate risk of re-offending.

24. Dr Parker carried out an overall assessment and could do no more than express what might be regarded as a degree of optimism only that he may be rehabilitated into the general community.

25. It is also relevant to record that his offending seems to be related to very significant abuse of alcohol and illicit drugs. He has addressed that issue but still expresses some degree of temptation in that regard to his supervising officers, which temptation he has so far been able to resist.

Orders

26. Given that finding, I will also make an order in accordance with the provisions of s 7(4) of the Crimes (High Risk Offenders) Act referring Mr Tozer for an assessment by one psychiatrist and one registered psychologist who will be required to conduct separate examinations of Mr Tozer and to furnish reports for the Court on the results of those examinations. Mr Tozer, of course, will be directed to attend.

27. The parties ought to have access to those reports when they become available.

28. In accordance with the provisions of s 10 of the Crimes (High Risk Offenders) Act, it is appropriate that the interim supervision order commence on 30 November 2016 at the conclusion of his current parole.

29. The conditions are not in dispute and I wish to record in my reasons that it has been agreed at the moment that there should be no mandatory electronic monitoring. However, the District Supervising Officer ought to have some discretion in that regard should circumstances change in the interim. He need only comply with electronic monitoring if directed to do so by his DSO.

30. I make orders in accordance with the Short Minutes of Order signed by me dated today. The orders may be entered forthwith. I direct the seal of the Court be affixed to the form of Short Minutes of Order.

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Decision last updated: 21 November 2016