State of New South Wales v Potger

[2023] NSWSC 1422

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Potger [2023] NSWSC 1422

Hearing dates:

08 November 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [30]

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – defendant concedes that an Interim Supervision Order should be made – dispute about curfew condition – no issue of principle.

Legislation Cited:

Crimes Act 1900

Crimes (High Risk Offenders) Act 2006

Cases Cited:

State of NSW v Sotheren (preliminary) [2018] NSWSC 754

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

State of New South Wales (P)
Noel Potger (D)

Representation:

Counsel:
P Aitken (P)
H Blake (D)

Solicitors:
Crown Solicitor (P)
Legal Aid NSW (D)

File Number(s):

2023/275993

Publication restriction:

Not Applicable

JUDGMENT

1. On 30 August 2023, the plaintiff, State of New South Wales, (“the State”) commenced proceedings by Summons against the defendant, Noel Potger, seeking orders pursuant to the Crimes (High Risk Offenders) Act 2006 (“the Act”), including a final order for the imposition of an Extended Supervision Order (“ESO”).

2. This judgment deals with the State’s application for interim and interlocutory relief. The State seeks:

“1.   An order pursuant to s 7(4) of the [HRO Act]:

(a)    appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court with the results of those examinations by a date to be fixed by the Courts:

(b)   directing the defendant to attend those examinations.

2.   An order:

(a) pursuant to s 10A of the Act, that the defendant be subject to an Interim Supervision Order from 22 November 2023 …;

(b) pursuant to s 10C(1) of the Act, that the Interim Supervision Order be for a period of 28 days; and

(c) pursuant to s 11 of the Act, direct that the defendant for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to the Summons.

3. As well, ancillary relief is sought with respect to the confidentiality of the documents on the file.

4. The defendant, by his counsel, consented to the making of the interlocutory and interim orders sought by the State on the conditions ultimately agreed to between the parties, subject to one condition discussed below.

5. As this is a civil proceeding in which the defendant is represented by counsel, the Court is entitled to rely upon the various concessions made by counsel. Those concessions included:

1. that each of the statutory pre-conditions necessary to be fulfilled before an Interim Supervision Order (“ISO”) or an ESO could be made, have been fulfilled (s 51 of the HRO Act);

2. that the matters alleged in the documentation served by the State with the application, “would, if proved, justify the making of an ESO …” (s 7(4) of the HRO Act); and

3. in all of the circumstances, an ISO ought to be made.

6. As well, it is accepted by the State and the defendant that the offender’s current custody, which is due to expire on 22 November 2023, will expire before the proceedings commenced by Summons are finally determined.

Interim Supervision Order

7. Section 10A of the Act vests a discretion in the Court to make an order for the interim supervision of an offender where the statutory preconditions to the proceedings have been met, the offender’s current custody will expire before the proceedings are determined, and that the matters alleged in the documentation relied upon by the State would, if proved, justify the making of an ESO. –The concessions of the defendant address each of these underlying matters.

8. I note that the defendant makes no concession about whether, ultimately at a final hearing, on all of the evidence then available to the Court, an ESO should be made. No concession made in these proceedings relates to any such question.

9. It is necessary also to note that the last matter requires the Court to be satisfied on this application that the supporting documentation of the Crown would, if proved, justify the Court being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, being a serious violence offence, if not kept under supervision: see s 5B(d) of the HRO Act.

Conviction and Imprisonment

10. The defendant was convicted of an offence of the reckless causing of grievous bodily harm in company, for which he was, on 11 December 2018, sentenced to a term of imprisonment of 2 years and 9 months with a non-parole period of 1 year and 8 months.

11. That offence occurred whilst the defendant was in custody in a correctional centre. The sentencing Judge described the offence as objectively serious, and well within the mid-range of objective seriousness. The defendant was 21 years old at the time of that offence.

12. As is clear, the sentence for that serious violence offence has expired.

13. However, the defendant is presently in custody as a consequence of a sentence imposed by Gallagher DCJ on 13 July 2023 for an offence of reckless wounding contrary to s 35(4) of the Crimes Act 1900. Two other offences were taken into account on the Form 1. Gallagher DCJ sentenced the defendant to a term of imprisonment of 2 years and 6 months to commence on 28 July 2022, with a non-parole period of 1 year and 3 months.

Expert Reports

14. In a risk assessment report dated 15 April 2023, prepared by Mr Mystakidis, a psychologist in the Serious Offenders Assessment Unit, the author concluded that the defendant was in the high risk category for violent offending.

15. Mr Mystakidis accepted that the defendant had completed the Violent Offenders Therapeutic Program and other programs to address his previous behaviour. He noted that the defendant’s level of compliance and responsivity were poor, although when he engaged in individual intervention with the maintenance program of the Violent Offenders Therapeutic Program that there had been positive reports of his level of engagement. Post-treatment, the assessment of the defendant’s risk for violence was that he was in the high range.

16. A Risk Management Report dated 19 May 2023, prepared by officers of the Extended Supervision Order Team, noted that the defendant was able to be effectively managed in the community by the imposition of an ISO with conditions.

17. Finally, I note that the material relied upon by the State with respect to the defendant’s behaviour whilst in custody suggested that, notwithstanding the various programs which the defendant had undertaken, he continued to demonstrate a lack of respect, or at least an indifference towards authority.

18. Since March 2022, the defendant has had 35 disciplinary offences recorded against him whilst in custody relating to violence, disobeying a direction, or failing to comply with the routine of the Correction Centre.

19. Whilst it is important to note that conduct in custody is not necessarily a reliable predicter of the defendant’s behaviour in the community, it may in the circumstances be additional material which, if accepted, would justify the making of an ESO.

Conclusion

20. In the circumstances outline above, namely that the material relied upon by the State is sufficient, if proved, to justify the making of an ESO and the defendant, through his counsel, accepts that that is so, it will be appropriate to make an ISO for a period of 28 days.

Conditions

21. Ultimately, after discussion and debate, the parties agreed on all of the conditions which are to be imposed except for Condition 10, which is the following form:

“10.   The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.” (“the Curfew Condition”)

22. In State of NSW v Sotheren (preliminary) [2018] NSWSC 754 at [25], Johnson J said:

“25. Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose particular conditions so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of NSW [2015] NSWCA 28 at [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effected with the interests of the defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State NSW …”

23. In oral submissions, counsel for the State, when asked to identify “the risk to which the curfew [condition] is addressed”, said:

“It’s partly a structural requirement to ensure that those monitoring him know where he is, where he would normally be expected to be at home. Also to help to minimise any temptation to be at large and potentially be tempted by drugs during those night hours and, in effect, to introduce routine which would be part of the rehabilitation process and the de-institutionalising, as it were, which is the secondary object of the Act: to promote the rehabilitation of the offender.”

24. Counsel called in aid the contents of paragraphs 74 and 75 of the Risk Assessment Report dated 15 April 2023, to which earlier reference has been made in [1616].

25. Those paragraphs contain the following:

“74.   In the community, Mr Potger may commit a violence offence against a member of the community for financial gain or retribution. This poses the risk of significant harm to another person. This type of offence is likely to occur in the context of substance use problems, an unstable living situation and financial hardship, interpersonal conflict, and poor engagement with supervision.

75.   Also, in the community, Mr Potger may commit an act of violence towards his partner in the context of relationship problems stemming from his substance-use, financial problems, difficulty meeting the expectations of parenthood and a lack of personal support.”

26. The State submitted particularly having regard to the remarks in paragraph 74, that the Court should take:

“judicial notice of the concept that people are more likely to be vulnerable during the night hours, partly due to the reduced number of people in the community in the early hours of the morning and night, and also potential greater vulnerability of people who have been out socialising and drinking alcohol.”

27. I accept, as Johnson J said in Sotheren at [24], that it is necessary to bear in mind that the effect of including a condition is to expose the defendant to criminal sanctions if the condition is breached. Accordingly, so his Honour remarked, a basis needs to be demonstrated for including the conditions in the first place.

28. I also note that other conditions which are sought, and which are not opposed, are that the defendant is to wear electronic monitoring equipment as directed by the Departmental Supervising Officer (“DSO”) and that he is obliged to obey all reasonable directions of a DSO. Each of those conditions are sufficient, so it seems to me, to address the risk which may arise if the defendant is found to be persistently or regularly absent from his accommodation between the hours specified in the present proposed curfew condition.

29. In those circumstances, I am not satisfied that the curfew condition is necessary for the protection of the community in circumstances arising from the risks which the defendant is said to pose. I decline to include the curfew condition (Condition 10), as a condition of the order which I make.

Orders

30. I make the following orders:

1. Order pursuant to s 7(4) of the Crimes (High Risk Offenders Act) 2006 that:

1. there be appointed two qualified psychiatrists or psychologists (or any combination of such persons) to conduct examinations of the defendant and to furnish reports to the Supreme Court of NSW on the results of those examinations by a date to be fixed by the Court; and

2. the defendant is to attend those examinations.

2. Order that:

1. pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order from 22 November 2023;

2. pursuant to s 10C(1) of the Act, the Interim Supervision Order be for a period of 28 days from 22 November 2023; and

3. pursuant to s 11 of the Act, the defendant for the period of the Interim Supervision Order is to comply with the conditions set out in the Schedule to the order.

4. access to the file of the Supreme Court of New South Wales shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document (or documents), the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

**********

SCHEDULE OF CONDITIONS OF SUPERVISION

NOEL POTGER

In these conditions:

“Associate” includes, but is not limited to, being in company with, or to communicate 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 NOEL POTGER, also known as NOEL DAVID POTGER and JOHN ROBSIN, 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:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statue or figure;

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

5. any computer data or the computer record or system containing the data; and

6. 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:

1. 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

2. A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction may conveniently 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. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

4. The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision.

Electronic Monitoring

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

Schedule of Movements

1. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

2. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period

3. The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

1. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

2. The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.

3. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.

4. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

5. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

6. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Part C: Place and travel restrictions

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

2. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.

3. The defendant must not frequent or visit any place or district specified by a DSO.

Part D: Employment, finance and education

1. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.

2. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO.

3. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

Part E: Drugs and alcohol

1. The defendant must not:

   a.   Possess or consume alcohol without the prior approval of a DSO.

   b.   Possess or use prohibited drugs or drugs unlawfully obtained.

2. The defendant must submit to drug and alcohol testing.

3. The defendant 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. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

Part F: Non-association

Associations with Others (not children)

1. The defendant must not associate with any person or persons specified by a DSO.

2. Without limiting condition 25, the defendant must not:

   a.   associate with any people who are consuming or under the influence of alcohol without the prior approval of a DSO.

   b.   associate with any people who are consuming or under the influence of illegal drugs.

   c.   associate with any person held in custody without prior approval of a DSO.

3. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself within a reasonable timeframe.

4. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation.

Part G: Weapons

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

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

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

2. Without limiting or altering condition 29, the defendant must not possess or use any of the following, without a DSO’s prior approval:

   a.   any article or device, not being such a firearm, that is designed or intended as a defence or anti-personnel spray and that is capable of discharging by any means:

   i.   any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or

   ii.   any substance capable of causing bodily harm.

   b.   a knife (other than a knife possessed or used for food preparation or other domestic purposes within the defendant’s home), 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;

   c.   any other implement made or adapted for use for causing injury to a person.

Part H: Access to the internet and other electronic communication

1. If the DSO has reasonable cause to suspect that there has been an elevation in the defendant’s risk factors concerning domestic violence, then the DSO may issue, and the defendant must obey, a direction about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).

31A.   If the DSO has reasonable cause to suspect that there has been an elevation in the defendant’s risk factors concerning domestic violence, then the defendant must submit to any search of a computer, or any electronic or communication devices in his possession or under his control.

Part I: Search and seizure

1. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, or any storage facility, garage, locker or commercial facility, and to the seizure of any object located during any such search.

2. The defendant 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 J: Personal details and appearance

1. The defendant must not change his name from “NOEL POTGER” or use any other name without notifying a DSO.

2. The defendant must not significantly change his appearance without the approval of a DSO.

3. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

4. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part K: Medical intervention and treatment

1. The defendant 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. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

3. The defendant must attend, upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction.

4. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

5. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

6. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

7. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision and case management including, but not limited to, a DSO, NSWPF, CSNSW, the Aboriginal Community Engagement and Culture Officer and the Project Coordinator, Coexisting Disorders Program.

8. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Amendments

30 November 2023 - Amendment to [28] under the slip rule.

30 November 2023 - Amendment to [6]-[8], [10], [11], [23].

Decision last updated: 30 November 2023