State of New South Wales v Mackey - [2015] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Mackey [2015] NSWSC 514
Hearing dates: 10 April 2015, 22 April 2015
Decision date: 05 May 2015
Jurisdiction: Common Law
Before: Button J
Decision:
See paragraph 45

Catchwords: CIVIL LAW – application for mandatory psychiatric examinations and interim supervision order pursuant to Crimes (High Risk Offenders) Act 2006 – preliminary hearing – whether defendant a "high risk violent offender" – whether test made out at preliminary stage
Legislation Cited: Crimes Act 1900 (NSW), ss 33, 556A
Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5E, 7(4), 9, 10B, 10C
Cases Cited: State of New South Wales v Lynn [2013] NSWSC 1147
Category: Procedural and other rulings
Parties: State of New South Wales (Plaintiff)
Ryan Mackey (Defendant)
Representation:
Counsel:
G Mahoney (Plaintiff)
M Johnston (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid New South Wales (Defendant)

File Number(s): 2015/83652

Judgment

Précis of undisputed evidence

Mr Ryan Mackey (the defendant) was born on 13 February 1977, and is accordingly aged 38 years. He grew up in the suburb of Glebe in the inner west of Sydney. His family was close knit and his home was generally a happy one. Unfortunately, he commenced to use prohibited drugs in his early teens, and by the age of 16 he was a regular user of heroin. He left school at the conclusion of year 10.
From an early age, the defendant commenced to interact with the criminal justice system. In 1993, he was placed on bonds by the Children’s Court for driving offences and stealing a motor vehicle. In 1994, he was dealt with for stealing, and in 1995 he was dealt with for six counts of break enter and steal. In the same year, he was found guilty of two counts of assault, but the matters were dismissed pursuant to s 556A of the Crimes Act 1900 (NSW), and one is entitled to infer that they were quite trivial.
In December 1995, a residential home in Glebe was deliberately set on fire. Tragically, a woman and her two children were inside. All three died as a result of smoke inhalation. Due to a dispute about a mobile phone and, possibly, payment for prohibited drugs, the defendant, who was then aged 18 years, had been making threats in the preceding days that he would burn down the home of the adult deceased. As it happened, another woman, who had her own reasons for being aggrieved with the same person, expressed to the defendant her readiness to do the same thing. The defendant enthusiastically encouraged her to do so. As part of his support, he attended at the scene and stood at the door whilst the home was set on fire, entering only briefly. When the home caught alight, neither he nor the principal offender did anything to alert the fire brigade or other authorities. Although the defendant had been smoking cannabis some time previously, there was nothing to suggest that that played a role in his conduct.
The defendant was originally charged with three counts of murder in that same month. As a result, he was in and out of custody between December 1995 and September 1997. Eventually, a plea of guilty to three counts of manslaughter was accepted by the Crown, on the basis that the defendant had been an accessory to an unlawful and dangerous act that caused the death of three persons.
In the remarks on sentence of 17 October 1997, Dunford J of this Court assessed the prospects of rehabilitation of the defendant, by then aged 20, as being very good. His Honour also emphasised that, by acceptance of the plea of guilty to manslaughter on the basis of an unlawful and dangerous act, the Crown had disavowed proof of an intention to kill or inflict grievous bodily harm on the part of the defendant. In order to reflect a number of short periods of pre-sentence custody, his Honour imposed a head sentence of imprisonment for eight years one month with a non-parole period of six years one month. That sentence commenced on 17 October 1997. An appeal against sentence to the Court of Criminal Appeal was dismissed.
Whilst in custody, the defendant infringed against prison discipline not infrequently, including by way of offences of violence.
It can be seen that the non-parole period imposed by his Honour expired on 16 November 2003. The defendant was released on that date. On parole, the defendant returned to the inner west of Sydney, and was gainfully employed. On the other hand, he was drinking very heavily.
On 10 July 2004, the defendant committed a break enter and steal. He was not sentenced for that offence until some years later.
On the following day, 11 July 2004, the defendant was drinking in a hotel in the inner west of Sydney that was seemingly open around the clock or close to it. By 5 AM, he had been drinking for six hours or so. A dispute developed between the defendant and another drinker (the victim) about something as trivial as some beer that was accidentally spilt. An argument developed, the defendant came close to the victim, and he pushed the defendant to the chest. The defendant responded by driving a beer glass that he was holding into the face of the victim. The glass shattered in the vicinity of one of his eyes. The result was that the victim suffered severe lacerations that required 40 stitches to his face. He also suffered permanent and prominent scarring.
It is noteworthy that that act of great violence occurred when the defendant had been on parole for less than eight months for the unlawful killing of three persons, two of whom were children.
The defendant was charged on 2 September 2004 with malicious wounding with intent to cause grievous bodily harm, and returned to custody on that day. He pleaded not guilty, seemingly on the basis of lack of proof of the requisite intent, but was found guilty by a jury. In the proceedings on sentence, the defendant described himself as an alcoholic. Marien SC DCJ emphasised the gravity of the commission of the offence whilst subject to parole for three offences of manslaughter. His Honour sentenced the defendant to a head sentence of 10 years 8 months to commence on 2 September 2004, with a non-parole period of imprisonment for eight years that was to expire on 1 September 2012. Again, an appeal against sentence was dismissed.
That non-parole period was subsequently extended by six months by way of a partly cumulative sentence for the break enter and steal to which I referred at [8]. The result was that the earliest possible release date of the defendant became 1 March 2013.
The defendant was not released at the end of that non-parole period. Indeed, he was not released until 17 April 2014. It can be seen therefore that, except for a period of less than eight months that ended with an offence of great violence, the defendant was in continuous custody from October 1997 until April 2014, a period of well over 16 years.
The release of the defendant to parole was delayed because it was felt that he could not adapt to normal lawful community life. That opinion was based upon the fact that, although he had done some rehabilitative courses in custody, he had not been able to complete intensive therapy to do with violent offending. At first, that was because such therapy was not available to the defendant when he was on protection; at a later stage, he preferred to focus upon his problem with prohibited drugs rather than upon any proclivity to violence.
Whilst in custody on that second occasion, the defendant was generally (though not completely) free of offences of violence against prison discipline.
On parole last year, the defendant at first progressed well. He lived with his sister for a time, and then moved to a boarding house. He endured the death of his father without relapse. However, towards the end of 2014, he returned to the use of prohibited drugs. He informed the authorities that he was abusing heroin and also crystal methylamphetamine, commonly known as “ice”. He was arrested in a stolen car in Woolloomooloo in circumstances that suggested that an offence against property was to be committed, though no offences were proven against the defendant. His life became chaotic. His parole was revoked, and he returned to custody in late December 2014. Since that time he has failed at least one drug test in custody, although the most recent one was a success.
In the meantime, the State of New South Wales (the plaintiff) indicated to the defendant that it could seek orders against him pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). A risk assessment report of Ms Lauren McNeill, forensic psychologist, of 19 January 2015 was prepared. It suggested that the defendant has a “moderate-high” risk of re-offending violently. That report also detailed that the defendant had admitted to committing other uncharged acts of violence, as one might expect of a person who has existed in the Hobbesian world of the drug addict over many years. On the other hand, in light of the fact that the defendant does not have a lengthy record for offences of violence, and the fact that he has refrained from such offences for many years (not only whilst incarcerated but also whilst he was on parole in 2014), that report (and others of a similar nature) were not overly adverse to the defendant.

Positions of the parties

The matter came before me as a preliminary hearing on 10 April 2015. At that stage, the availability of supported accommodation was unclear, with the result that the plaintiff was seeking various contingent orders (including an interim detention order) depending upon how that aspect might develop. The parties were content with my suggestion that the matter be stood over part heard until the question of suitable accommodation could be resolved, or at least more deeply explored.
On 22 April 2015, counsel for the plaintiff read a further affidavit that deposed that accommodation was available to the defendant at a Community Offender Support Program (COSP). In the circumstances, the plaintiff did not seek an interim detention order, contingently or otherwise. Instead, the plaintiff sought the appointment of two qualified psychiatrists to conduct mandatory examinations of the defendant, along with an interim supervision order of 28 days to commence on 6 May 2015, that being the expiry date of the head sentence of the defendant.
Counsel for the defendant accepted that the “glassing” that was contrary to s 33 of the Crimes Act was a “serious violence offence” that could found the application. He did so because such an offence is defined in s 5A of the Act as follows:

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.
(emphasis added)

He also accepted that the ancillary statutory preconditions for the making of the orders sought had been satisfied. But he submitted that the test for making the orders, including an interim supervision order, had not been made out. He drew attention to s 5E, which is as follows:

5E High risk violent offender
(1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender.
(2) An offender is a "high risk violent offender" if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.
(3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence.
(emphasis added)

He also drew attention to s 7(4), which is as follows:

7 Pre-trial procedures
…
(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:
(a) appointing:
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b) directing the offender to attend those examinations.
…
(emphasis added)

He drew attention to s 10B, which is as follows:

10B Interim supervision order-high risk violent offender
The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:
(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order.
(emphasis added)

Finally, counsel for the defendant drew attention to s 9 of the Act, which is relevantly as follows:

9 Determination of application for extended supervision order
(1) The Supreme Court may determine an application for an extended supervision order:
(a) by making an extended supervision order, or
(b) by dismissing the application.
…
(3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:
(a) the safety of the community,
…
(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 relevant 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 relevant 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,
(f) 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,
…
(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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).
(4) In this section, a "relevant offence" means:
…
(b) in the case of an application for a high risk violent offender extended supervision order-a serious violence offence.

In short, counsel for the defendant submitted that, applying the test that is derived from the combination of those sections, I could not be satisfied that the matters relied upon by the plaintiff would, if proven, justify the making of an extended supervision order. That was because, he submitted, those matters would not, if proven, satisfy me to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
Counsel for the defendant relied upon the following matters in support of the proposition that the test had not been made out.
First, it may be accepted that the defendant has a personal problem that is criminogenic. But it is a long-standing problem with prohibited drugs and alcohol. It is not a problem with violence. And if I found to the contrary that there is or has been some sort of issue with violence, it certainly does not manifest itself by repeated acts of serious violence. So much may be seen from his criminal record, and from his recent record of infringements against prison discipline.
Secondly, throughout the past many years he has been able to behave well in custody. Indeed, he has been spoken of highly as a worker, including one who has worked outside the prison walls and in contact with members of the community.
Thirdly, whilst it is true that his release to parole in 2014 failed, in the sense of the defendant returning to prohibited drugs and thereafter being returned to custody, it is noteworthy that there is no suggestion of him committing an act of violence during the many months whilst he was on parole last year.
Fourthly, the three manslaughter offences, whilst resulting in the unlawful deaths of three fellow human beings, were not serious violence offences as defined in the Act. That is because, whilst it is true that other formulations of manslaughter may feature, as an element, an intention to cause death, grievous bodily harm or actual bodily harm, or recklessness with regard to any of those three consequences, this manslaughter did not. So much is clear, he submitted, from the remarks on sentence of Dunford J.
Fifthly, the “glassing” was an explosion of drunken anger that was concluded in a matter of seconds. Regrettably, such crimes are not uncommon in the hotels of this State. And yet it cannot be the law that every person who commits such an act is liable, at the conclusion of the head sentence imposed for such an offence, to be incarcerated further, or to have his or her liberty markedly curtailed in the community thereafter.
Sixthly, the various risk assessment reports do not strongly support the proposition that there is a real possibility that the defendant will commit a serious offence of violence if released unconditionally. If anything, the reports are nuanced, cautious and guardedly optimistic about the defendant refraining from doing so.

Seventhly and finally, one should be cautious about placing too much reliance on the self-reported acts of violence that have been revealed in a therapeutic setting by a prisoner. Apart from anything else, one does not know the full context of such matters, including whether some or all of them were done in self-defence, or were otherwise somehow legally or morally justified.

Determination

Whilst all of those propositions have force, I respectfully reject the fundamental submission of counsel for the defendant. That is so for the following reasons.
First, I accept that this is not a case in which the defendant has repeatedly demonstrated a tendency to commit crimes of great violence. And it is true that such cases will very often found an application by the State under the Act. But those attributes are not essential pre-conditions to a successful application; each case must turn on its own facts. The question is merely whether the statutory test has been made out on the material tendered at the preliminary hearing.
Secondly, it is true that the three offences of manslaughter were not serious violence offences as defined by the Act. Indeed, speaking hypothetically, it seems that a murder founded on the doctrine of constructive (or felony) murder is not such an offence, however surprising that result may be. And it is true that the deaths of the adult deceased and her two children were “accidental”, to use an imprecise term. But to my mind that hardly means that the manslaughter offences are irrelevant to the test that I must consider. To the contrary, it was grossly disinhibited, antisocial, and dangerous for the defendant to provide enthusiastic support and encouragement to the principal offender with the aim of setting fire to a residential home in an inner city suburb. And it is noteworthy that those three fatal offences occurred at least within the milieu of people who abused prohibited drugs, and, perhaps, in the context of a dispute (real or purported) about a drug deal.
Thirdly, the “glassing” cannot be assessed as being anything other than an act of great violence arising from a triviality. It occurred when the defendant had been on parole for only a short time after an extended period in custody. At that time the defendant must have realised the importance of him not infringing against the criminal law, and the inevitability of him returning to prison for an extended period if he did so in a serious way; nevertheless, he did exactly that. And it is no coincidence, to my mind, that it occurred when the defendant was disinhibited by intoxication, albeit by alcohol as opposed to prohibited or unprescribed drugs.
Fourthly, I agree that one should approach the other acts of violence reported by the defendant with caution. As I have said, they are hardly surprising and may have some explanations or exculpation attaching to them. Still and all, they deserve some weight.
Fifthly, as I explained in State of New South Wales v Lynn [2013] NSWSC 1147, my reading of the definition of a serious violence offence is that it is surprisingly broad. Analysis of the section shows that the definition could include an act such as punching a victim to the face, whilst foreseeing the possibility of causing actual bodily harm in the form of nothing more than a bleeding nose or a cut lip, but with the consequence of the victim falling backwards and hitting his head and suffering a fractured skull. The test under consideration does not require demonstration of an unacceptable risk that a defendant will commit murder, or the intentional infliction of grievous bodily harm; an unacceptable risk of substantially less serious acts of violence is sufficient.
Sixthly, I accept that the real problem that has bedevilled the defendant for twenty years is a problem with drugs and alcohol. I also accept that, if and when that problem is able to be solved, concerns about the commission of offences of violence may well be very largely mitigated.
But as things stand, I assess the defendant as being a person who, regrettably, suffers from a serious problem with prohibited drugs that remains unresolved. His recent failure whilst living in the community demonstrates that. One can infer that it is highly probable that, if the defendant were released to completely unconditional liberty, he would quickly revert to abuse of prohibited drugs. And it is not difficult to posit situations in which a person with an unresolved drug problem and who has acted disinhibitedly and very anti-socially in the past whilst intoxicated could very well commit a serious violence offence. One such situation could be a dispute about purchase price or purity of prohibited drugs. Another could be a dispute about the division of ill-gotten gains of offences committed to fund such a dependence. A third could perhaps be an offence against property in which a victim intervenes unexpectedly, and offers resistance.
Seventhly, the particular drugs to which the defendant turned on parole are not without significance. I think that I am entitled to find, without having been provided with expert evidence, that people who are dependent on heroin will sometimes commit offences as a matter of desperation. I also consider that I am entitled to find that “ice” is a very powerful stimulant that can cause people to commit acts that are aggressive and worse.
Eighthly, it is true that the defendant was seemingly reasonably well-settled during the period of over nine years that he spent in custody between 2 September 2004 and 17 April 2014. But I think in light of the period that he has spent in custody that he is, unfortunately, quite institutionalised. And it is well known that many persons who are able to survive well and behave well in custody find that they are incapable of doing so in the community.
In short, for a number of reasons, I consider that the materials placed before me would, if proven, justify satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. In the circumstances, I propose to make the two substantive orders sought by the plaintiff. Nor do I think that any of the proposed conditions– which I accept are rigorous – are inappropriate, especially bearing in mind that my order will extend for no more than four weeks. Finally, I am content to make the case management orders sought by the plaintiff, along with some other orders to that end.

Orders

I make the following orders:

Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006, Dr Samson Roberts and Dr Andrew Ellis are appointed to conduct separate psychiatric examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 26 June 2015.

The defendant must attend an appointment with Dr Ellis on 18 May 2015 at 10 AM.

The defendant must attend an appointment with Dr Roberts on 22 May 2015 at 11 AM.

Pursuant to s 10B and s 10C of the Crimes (High Risk Offenders) Act 2006, the defendant is subject to an interim supervision order for a period of 28 days to date from 6 May 2015 and expire on 2 June 2015.

During the period of supervision, the defendant must comply with the conditions of supervision set out in Schedule A to the Summons filed in Court on 19 March 2015.

The plaintiff must file and serve any affidavit evidence on which it relies by 5 June 2015.

The defendant must file and serve any affidavit evidence on which he relies by 19 June 2015.

The plaintiff must file and serve any updating affidavit evidence on which it relies one week before the final hearing date.

The plaintiff must file and serve submissions on which it relies two weeks before the final hearing date.

The defendant must file and serve submissions on which he relies one week before the final hearing date.

The matter is listed before the Common Law Registrar at 9 AM on Monday 11 May 2015 to obtain a date for the plaintiff to apply for a renewal of the interim supervision order, and a date for a final hearing of the Summons with an estimate of 1 day.

The parties have liberty to apply to relist the matter with 3 days’ notice.

**********

Schedule A (26.3 KB, pdf)

Decision last updated: 05 May 2015

Medium Neutral Citation:	State of New South Wales v Mackey [2015] NSWSC 514
Hearing dates:	10 April 2015, 22 April 2015
Decision date:	05 May 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	See paragraph 45
Catchwords:	CIVIL LAW – application for mandatory psychiatric examinations and interim supervision order pursuant to Crimes (High Risk Offenders) Act 2006 – preliminary hearing – whether defendant a "high risk violent offender" – whether test made out at preliminary stage
Legislation Cited:	Crimes Act 1900 (NSW), ss 33, 556A Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5E, 7(4), 9, 10B, 10C
Cases Cited:	State of New South Wales v Lynn [2013] NSWSC 1147
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Ryan Mackey (Defendant)
Representation:	Counsel: G Mahoney (Plaintiff) M Johnston (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2015/83652