State of NSW v AA - [2020] NSWSC 172

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: State of NSW v AA [2020] NSWSC 172
Hearing dates: 24 February 2020
Decision date: 04 March 2020
Jurisdiction: Common Law
Before: Button J
Decision:
(1) An order pursuant to s.15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):
(a) Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court;
(b) Directing the defendant to attend those examinations.
(2) An order pursuant to ss. 18A and 18C of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing on 5 March 2020.
(3) An order pursuant to s. 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.

Catchwords:
HIGH RISK OFFENDER – application for interim detention order pending final hearing – application for examination by medical professionals – defendant on parole for aggravated sexual offending – limited rehabilitative progress made in custody – interim detention order and order for medical examinations made

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW)

Category: Principal judgment
Parties: State of NSW (Plaintiff)
AA (Defendant)
Representation:
Counsel:
J Davidson (Plaintiff)
E W L Anderson (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2019/397483

Judgment

Background

Mr AA (the defendant) was born in October 1989, and accordingly is aged 30. An Aboriginal man, he was brought up in the Shoalhaven area of New South Wales. His childhood featured great disadvantage, and one can readily infer that he was psychologically injured from an early age. To give but one example, when he was little more than a toddler, he suffered the undoubtedly immense trauma of seeing his father commit suicide by way of a shotgun blast to the head.
Sadly, he began to intersect with the criminal justice system at an early age as well (the parties were agreed that there is no statutory or other limitation on the following being openly discussed by me in this judgment).
On 25 and 28 July 2003, he committed a number of offences. They were, in short form: an armed robbery, an assault with intent to rob whilst armed, sexual intercourse without consent, and an indecent assault.
The objective features of those offences were as follows. On 25 July 2003, the owner of a convenience store in the south-western Sydney suburb of Canley Vale became suspicious of two males, one of whom purchased an item in the store. When she left the store for the day, she saw the same two males approaching her at a very fast pace. She ran into a shop and screamed for assistance. She…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 172
Decision Date: 04 March 2020

CaseChat Overview and Summary

The matter involved a defendant, identified as AA, who was subject to an application by the State of New South Wales for an interim detention order. The defendant was on parole following a conviction for aggravated sexual offending. The State sought the order on the basis that AA presented a significant risk to the community if released. The case was heard in the Supreme Court of New South Wales, where the defendant challenged the application.

The primary legal issue was whether AA posed such a significant risk to the community that he should be detained pending the final hearing. The court also had to consider whether it was appropriate to order medical examinations to assess AA's risk level and mental health status. The defendant's legal representatives argued that there was insufficient evidence to justify an interim detention order and that the medical examinations were an invasion of privacy.

The court held that the evidence presented by the State demonstrated that AA posed a significant risk to the community, justifying the interim detention order. The court found that the risk was substantiated by AA's history of offending, the severity of the crimes, and the limited progress made in terms of rehabilitation while in custody. The court also determined that the medical examinations were necessary to properly assess AA's risk and mental health, and therefore authorised these examinations. The court concluded that the risk AA posed to the community outweighed his right to liberty, and granted the application for an interim detention order and for medical examinations.

The final orders included an interim detention order for AA pending the final hearing, as well as an order authorising medical examinations to assess his risk and mental health. The court scheduled a further hearing to review the interim detention order and to consider any findings from the medical examinations.

Orders