State of New South Wales v Whaley (Preliminary No 2)

[2018] NSWSC 623

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Whaley (Preliminary No 2) [2018] NSWSC 623

Hearing dates:

18 April 2018

Decision date:

18 April 2018

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

1. Pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006, the Interim Supervision Order made on 12 February 2018 is extended for a period of 28 days commencing on 28 April 2018.

2. Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to the orders of Justice Beech-Jones made on 12 February 2018 for the duration of the Interim Supervision Order.

3. Liberty to relist on 24 hours’ notice.

Catchwords:

HIGH RISK OFFENDER – application to extend interim orders – defendant complying with interim regime but not present at court – appropriateness of extending orders in absence of express consent

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

State of New South Wales v Whaley [2018] NSWSC 89

Category:

Procedural and other rulings

Parties:

State of New South Wales (plaintiff)
Mark Stephen Whaley (defendant)

Representation:

Counsel:
P Aitken (plaintiff)
T Reynolds (defendant)

    Solicitors:
Crown Solicitor’s Office (plaintiff)
Legal Aid (defendant)

File Number(s):

2017/348823

Judgment

1. HER HONOUR: These are proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) for a High Risk Offender Extended Supervision Order against Mark Whaley. Mr Whaley has completed serving the sentences imposed upon him for two murders committed in 1992 and a further offence of assault occasioning grievous bodily harm committed whilst on remand in respect of the murder charges. At the time these proceedings were commenced, he was on parole but the period of parole has now expired.

2. A preliminary hearing was conducted by Beech-Jones J on 9 February 2018. His Honour made orders in accordance with the amended summons save as to one condition which his Honour varied as noted at [54] of his Honour's judgment: State of New South Wales v Whaley [2018] NSWSC 89). The orders were continued by Fagan J on 27 March 2018 and come before the Court again today for continuation in circumstances where the matter is now listed for final hearing on 18 May 2018.

3. Mr Aitken, who appears for the State, had anticipated that the orders would be continued by consent, as occurred on the last occasion before Fagan J. However, Ms Reynolds, who appears for the defendant, has been unable to contact her client to confirm his consent to the continuation of the current regime.

4. Having heard from the parties, I do not think that is a cause for concern in circumstances where the defendant remains under electronic surveillance in accordance with the conditions of the interim order. Further, I have had regard to an affidavit affirmed by Claudia Pendlebury dated 20 April 2018 annexing an updated notice from the Offender Integrated Management System. I have had an opportunity to read those notes, which reveal that the defendant appears to be coping well with the present regime, indeed, one might say, very well having regard to the lengthy period of his incarceration.

5. Further, it is clear that he has attended the appointments with the two experts appointed by Beech-Jones J, and their reports are before the court.

6. In all the circumstances, notwithstanding Ms Reynolds' inability to obtain formal instructions confirming the defendant's consent to continuation of the orders, I am satisfied that it is appropriate to continue the orders in accordance with the short minutes provided by Mr Aitken.

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Decision last updated: 08 May 2018