State of New South Wales v Mackney

[2024] NSWSC 719

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Mackney [2024] NSWSC 719

Hearing dates:

13 June 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

(1) Order pursuant to s 7(4) of the Crimes (High Risk) Offenders Act 2006 that two qualified psychiatrists or two registered psychologists (or a combination of such persons) be appointed to conduct separate examinations of Jaysen Mackney and to furnish reports to the Supreme Court on the results of those examinations by 1 September 2024.

(2)  Direct Jaysen Mackney to attend those examinations.

(3) Order pursuant to s 10A of the Act that Jaysen Mackney be subject to an interim supervision order for a period of 28 days from 17 June 2024.

(4) Direct pursuant to s 11 of the Act that Jaysen Mackney, for the period of the interim supervision order, including the period of any extension of that order, comply with the conditions set out in the Schedule to these reasons.

(5)  Grant liberty to the parties to apply on 24 hours’ notice.

Catchwords:

HIGH RISK OFFENDERS – application for interim supervision order – serious violence offences – interim orders made

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5B, 7, 10A, 10C, 11

Evidence Act 1995 (NSW), s 191

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Jaysen Mackney (Defendant)

Representation:

Counsel:
M Della-Pozza (Plaintiff)
J Wilcox (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2024/97989

Publication restriction:

NIL

JUDGMENT

1. HIS HONOUR: By summons filed on 14 March 2024, the State of New South Wales seeks orders against Jaysen Mackney pursuant to various provisions of the Crimes (High Risk) Offenders Act 2006. For present purposes, the State seeks only the appointment of two experts to examine Mr Mackney pursuant to s 7(4) of the Act and an interim supervision order pursuant to ss 10A, 10C, and 11 of the Act from 17 June 2024 for a period of 28 days, subject to compliance with conditions.

2. The parties have prepared a statement of agreed facts pursuant to s 191 of the Evidence Act 1995. That statement reveals that Mr Mackney has a criminal history of violent offences dating back to February 2014 when he was aged 17. Mr Mackney had been in custody for all of his adult life until his release to parole on 18 June 2023. His parole was revoked following his arrest on 24 January 2024 for an assault occasioning actual bodily harm allegedly committed on 12 December 2023. Mr Mackney is bail refused in respect of those alleged offences, which are currently before the Local Court. His current sentence of imprisonment expires on 17 June 2024.

3. It is not in dispute that Mr Mackney has convictions for a “serious violence offence” as that expression is understood for the purposes of s 5A(1) of the Act.

4. Section 5B of the Act is in these terms:

5B Making of extended supervision orders--unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an "extended supervision order") if –

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

5. The State relies in this application upon the affidavits of Stephanie Breen affirmed on 12 April 2024 and 5 June 2024, as well as the affidavit of Dominic Wilcox-Watson sworn on 12 March 2024. These affidavits were read without objection.

6. Mr Mackney concedes, uncontroversially in the circumstances having regard to the evidence upon which the State relies, that the requirements of s 5B(a), (b) and (c) have been met. I agree that that concession is properly made. Mr Mackney also accepts, and I am otherwise independently satisfied to a high degree of probability, having regard to that evidence, that he poses an unacceptable risk of committing another serious offence if not kept under supervision under an interim supervision order.

7. Although the parties were initially at odds with respect to the appropriateness of some of the conditions sought by the State, those differences have now been resolved. In these circumstances, I am able to make, and I consider that I should make, the following orders:

1. Order pursuant to s 7(4) of the Crimes (High Risk) Offenders Act 2006 that two qualified psychiatrists or two registered psychologists (or a combination of such persons) be appointed to conduct separate examinations of Jaysen Mackney and to furnish reports to the Supreme Court on the results of those examinations by 1 September 2024.

2. Direct Jaysen Mackney to attend those examinations.

3. Order pursuant to s 10A of the Act that Jaysen Mackney be subject to an interim supervision order for a period of 28 days from 17 June 2024.

4. Direct pursuant to s 11 of the Act that Jaysen Mackney, for the period of the interim supervision order, including the period of any extension of that order, comply with the conditions set out in the Schedule to these reasons.

5. Grant liberty to the parties to apply on 24 hours’ notice.

SCHEDULE

In these conditions:

"Associate" includes, but is not limited to, being in company with, or communicating with by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

"CSNSW" means Corrective Services NSW.

"Commissioner" means Commissioner for Corrective Services.

"Defendant" means JAYSEN MACKNEY, also known as JASON MACKNEY, the defendant in these proceedings and the subject of the order.

"DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

"Electronic Identity" means each of the following:

a)   an email address,

b)   a user name or other identity allowing access to an instant messaging service,

c)   a user name or other identity allowing access to a chat room or social media on the internet,

d)   any other user name or other identity allowing access to the internet or an electronic communication service.

"Material" includes:

a)   any written or printed material;

b)   any picture, painting or drawing;

c)   any carving, sculpture, statue or figure;

d)   any photograph, film, video recording or other object or thing from which an image may be reproduced;

e)   any computer data or the computer record or system containing the data; and

f)   any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

"NSWPF" means NSW Police Force.

"Search" includes:

a)   A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and

b)   A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

"Schedule of movements" refers to a weekly plan (referred to in Condition 5(ii)), to be submitted to a DSO each Wednesday and which commences on the following Saturday if approved by a DSO.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3. You must truthfully answer questions from a DSO, or any other person supervising you, about:

   a)   where you are or have been;

   b)   where you are going;

   c)   who you are with or have been with;

   d)   what you are doing or have been doing; and

   e)   the nature of your associations.

4. You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

Electronic Monitoring

1. If you:

   a)   are charged with having custody of a knife or an offensive implement in a public place, or

   b)   are charged with an offence involving violence, or

   c)   become homeless, or

   d)   have tested positive to using drugs or alcohol

   Then you must:

   i.   wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment, and

   ii.   Provide a schedule of movements as directed

   a.   if you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period, and

   b.   you must not deviate from your schedule of movements except in an emergency.

Part B: Accommodation

1. You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements.

2. You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address.

3. You must not spend the night anywhere other than your approved address or any alternative approved addresses without the approval of a DSO.

4. You must promptly notify a DSO of any visitor entering and remaining at your approved address.

5. You must not permit any person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO.

Part C: Place and travel restrictions

1. You must surrender any passports held by you to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

2. You must not leave New South Wales without the approval of the Commissioner.

3. You must not go to any place specified by a DSO.

Part D: Employment, finance and education

1. You must take all reasonable steps to participate in programs as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development activities.

2. You must provide any information relating to your financial affairs, including income and expenditure, if directed by a DSO.

Part E: Drugs and alcohol

1. You must not:

   a)   Possess, purchase or consume alcohol without the prior approval of a DSO, or

   b)   Possess or use prohibited drugs, or

   c)   Use prescription drugs which are not prescribed to you or not in accordance with the prescribed doses.

2. You must submit to drug and alcohol testing as and when directed by a DSO.

3. You must not enter any licensed premises (including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants) without the prior approval of a DSO.

4. You must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge yourself from such programs and courses without prior approval of a DSO.

Part F: Non-association

1. You must not associate with any person specified by a DSO.

2. Without limiting condition 20, you must not associate with any person:

   a)   who you know is consuming or under the influence of alcohol without the prior approval of a DSO;

   b)   who you know is consuming or under the influence of illegal drugs; or

   c)   held in custody

without prior approval of a DSO.

Part G: Gambling

1. You must not gamble.

2. You must seek assistance in controlling your gambling, if directed by a DSO.

Part H: Weapons

1. You must not possess or use any of the following:

   a)   a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, or

   b)   a prohibited weapon within the meaning of the Weapons Prohibition Act 1998.

2. Without limiting or altering condition 24, you must not possess or use any of the following, without a DSO's prior approval:

   a)   a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;

   b)   any other implement made or adapted for use for causing injury to a person; or

   c)   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

NOTE: Condition 25 does not apply to knives for ordinary domestic use.

Part I: Access to the internet and other electronic communication

1. You must obey any reasonable direction by a DSO about the use of electronic devices and access to the internet.

2. You must disclose the following information to a DSO if directed:

   a)   Aliases, electronic identities and log-in names,

   b)   Email addresses,

   c)   Telephone numbers,

   d)   SIM cards,

   e)   Applications used (including any social networking service),

   f)   Online gaming service,

   g)   Instant messaging services,

   h)   Service provider account numbers, and

   i)   All passwords and log-in details.

3. You must not use any of the following unless approved by a DSO:

   a)   Social networking applications or services (including dating services or applications);

   b)   Encrypted messaging applications or services;

   c)   Online gaming applications or services;

   d)   Instant messaging applications or services.

4. You must give a DSO a list of the electronic devices you use to communicate with or access the internet. This includes computers, phones, tablet devices, data storage devices and gaming devices. You must advise a DSO of any change to the list immediately.

5. You must only use an electronic device to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

6. You must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by you, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

7. You must not delete or alter any of the following from your electronic devices without prior approval of a DSO:

   a)   Applications,

   b)   Emails,

   c)   Text messages,

   d)   Electronic messages,

   e)   Call history,

   f)   Files or documents,

   g)   Photographs, images and videos, or

   h)   Internet or application usage and search history.

8. You must provide consent for your telephone provider and internet service provider to share information about your accounts with a DSO.

Part J: Search and seizure

1. You must submit to the search by a DSO (or any other person as directed by the DSO) of your person or residence, or any vehicle in which you are travelling or which is under your control, or any item, computer, electronic or communication device, storage facility, garage, locker or commercial facility in your possession or under your control; and to the seizure of any object located during the search.

2. You must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order.

Part K: Personal details and appearance

1. You must not change your name from "Jaysen Mackney" or use any other name without notifying a DSO.

2. You must not significantly change your appearance without the prior approval of a DSO.

3. You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance.

4. If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details.

Part L: Medical intervention and treatment

1. You must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

2. If directed, you must undergo an assessment for the purposes of a Mental Health Care Plan or Community Treatment Order.

3. You must notify a DSO of the identity and address of any healthcare practitioner that you consult.

4. You must take medications for mental health or substance use control that are prescribed to you by your healthcare practitioners and only in the manner prescribed.

5. You must notify a DSO immediately if you cease to take or decline to commence taking any medication as referred to in the above condition.

45. You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other.

45A.You must agree to your treatment and service providers and healthcare practitioners sharing reports on your progress with a DSO to the extent that the reports are considered appropriate by your treatment and service providers and healthcare practitioners for your rehabilitation and ongoing management of current and potential risk factors.

46. You must agree to any information obtained under condition 45A being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

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Decision last updated: 04 July 2024