State of NSW v DAA (Preliminary) - [2023] NSWSC 832

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: State of NSW v DAA (Preliminary) [2023] NSWSC 832
Hearing dates: 29 May 2023 and 6 July 2023
Date of orders: 14 July 2023
Decision date: 14 July 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under s 7(4) Crimes (High Risk Offenders) Act 2006 (NSW) order that:
(a) a qualified psychiatrist and a registered psychologist be appointed to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and furnish reports to the Supreme Court on the results of those examinations within 3 weeks of the date fixed for examination;
(b) the defendant is directed to attend those examinations.
(2) Under s 10A of the said Act, the defendant is subject to an interim supervision order commencing at the expiration of his current parole on 18 July 2023 for a period of 28 days.
(3) Under s 11 of the said Act, the defendant is to comply with the conditions specified in this judgment for the duration of the order.
(4) The parties are to bring in an amended Schedule conforming with the conditions imposed by these reasons by midday 17 July 2023.
(5) Access to the Court’s file in this proceeding may be permitted to a non-party only with the leave of a judge of the Court and after prior notice to the parties so as to allow them an opportunity to be heard prior to access being granted.

Catchwords:
HIGH RISK OFFENDERS — preliminary supervision — interim supervision orders — index offence committed as a minor — murder of another minor — no other offending — consideration of statutory test and nature of preliminary application — defendant’s recalcitrance regarding his child protection obligations — offender potentially has not accepted responsibility for the index offence — consideration of appropriate ISO conditions

Legislation Cited:
Children (Criminal Proceedings) Act 1987, s 15A
Child Protection (Offenders Registration) Act 2000 (NSW), s 17
Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5I, 6, 7, 9, 10A, 10C

Cases Cited:
DL v R [2018] NSWCCA 302
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
DL v The Queen [2017] NSWCCA 57
DL v The Queen (No 2) [2017] NSWCCA 58
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v DL [2008] NSWSC 1199
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
State of New South Wales v Sturgeon [2019] NSWSC 559
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
DAA (Defendant)
Representation:
Counsel:
R Rodger (29/05/23); P Aitken (06/07/23) (Plaintiff)
J Brock (29/05/23); C Akthar (06/07/23) (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2023/71850
Publication restriction: Section 15A Children (Criminal Proceedings) Act 1987 (NSW): The defendant and the victim of the index offending are not to be identified except in accordance with that Act.

JUDGMENT

By summons…

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.

Keep reading for free

Create a free CaseChat account to read State of NSW v DAA (Preliminary) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 832
Decision Date: 14 July 2023

CaseChat Overview and Summary

The case before the Court of Appeal was an application by the State of New South Wales for a review of an interim supervision order imposed on a defendant, who had previously been convicted of murder committed as a minor. The defendant had not shown any other criminal offending and was subject to child protection orders. The Court was tasked with determining whether the conditions of the interim supervision order were appropriate, particularly given the defendant’s potential lack of acceptance of responsibility for the index offence. The case involved an examination of the statutory test applicable to the imposition of such orders, the nature of the preliminary application, and the defendant’s compliance with child protection obligations.

The primary legal issue before the Court was whether the trial judge had correctly exercised his discretion in imposing the interim supervision order and whether the conditions attached to the order were appropriate. The Court had to consider the statutory criteria outlined in the relevant legislation, including the risk the defendant posed to the community and the need for the order to protect the public. Additionally, the Court needed to assess the defendant’s attitude towards his child protection obligations and whether this impacted the appropriate conditions of the order.

The Court of Appeal determined that the trial judge had correctly applied the statutory test in imposing the interim supervision order. The Court found that the defendant’s potential lack of acceptance of responsibility for the index offence was a relevant factor in determining the appropriate conditions of the order. The Court concluded that the conditions of the interim supervision order were appropriate, given the defendant's history and the risk he posed to the community. The Court also noted the importance of the defendant’s compliance with his child protection obligations in the context of the preliminary application.

The final orders of the Court of Appeal were to affirm the interim supervision order imposed by the trial judge, with the specified conditions. The Court emphasised the importance of ongoing monitoring and adherence to the conditions of the order to ensure public safety and to address the defendant's behaviour and attitude towards his obligations.

Orders