State of NSW v Sines (No 3)

Case [2017] NSWSC 985


Supreme Court

New South Wales

Case Name: 

State of New South Wales v Sines (No 3)

Medium Neutral Citation: 

[2017] NSWSC 985

Hearing Date(s): 

21 July 2017

Date of Orders:

27 July 2017

Decision Date: 

27 July 2017

Jurisdiction: 

Common Law

Before: 

Wilson J

Decision: 

(1) Order that, pursuant to s 5F and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subjected to a high risk violent offender extended supervision order for a period of three years from today; and
 
(2) Pursuant to s 11 of the Act direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to these orders.

Catchwords: 

HIGH RISK VIOLENT OFFENDER – Crimes (High Risk Offenders) Act 2006 – application for extended supervision order – index offence of wounding with intent to cause grievous bodily harm – history of repeated criminal offending – sentence of imprisonment of 7 years with non-parole period of 5 years and 3 months – question as to duration of order and appropriate conditions – whether electronic monitoring necessary – order made for a period of three years

Legislation Cited: 

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited: 

State of NSW v Green (Final) [2013] NSWSC 1003
State of New South Wales v Sines [2017] NSWSC 592
State of New South Wales v Sines [2017] NSWSC 890
State of NSW v Tillman [2008] NSWSC 1293

Category: 

Principal judgment

Parties: 

State of New South Wales (Plaintiff)
Peter James Sines (Defendant)

Representation: 

Counsel:
Mr. L. Fernandez (Plaintiff)
Mr. P. Coady (Defendant)
 
Solicitors:
Crown Solicitor’s Office (NSW) (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 

2017/111393

Publication Restriction: 

None

JUDGMENT

  1. WILSON J: On 21 July 2017 the Court heard an application from the State of New South Wales for the imposition of an extended supervision order (“ESO”) upon the defendant, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The matter had earlier been before the Court for preliminary orders: State of New South Wales v Sines [2017] NSWSC 592; State of New South Wales v Sines [2017] NSWSC 890. This judgment assumes familiarity with those decisions.

  2. The Amended Summons filed by the State (relevantly) seeks the following orders:

    “a. pursuant to s 5F and s 9(1)(a) of the Act that the defendant be subject to a high risk violent offender extended supervision order (“the extended supervision order”) for a period of five years from the date of the order; and

    b. pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this Summons.”

  3. The focus of the parties at the hearing before me was not on whether evidence existed such that the Court would be persuaded to make an ESO, but rather on the conditions and duration of any such order. The defendant conceded that:

    (1)The offence for which he was…

Details
AGLC
State of New South Wales v Sines (No 3) [2017] NSWSC 985
Case
[2017] NSWSC 985
Decision Date

CaseChat Overview and Summary

The State of New South Wales filed an application for an extended supervision order under the Crimes (High Risk Offenders) Act 2006 against Sines, a defendant with a significant history of violent criminal offending. The defendant had recently been released to the community after serving a sentence of imprisonment for wounding with intent to cause grievous bodily harm. The court had to determine the appropriate duration of the extended supervision order (ESO) and whether electronic monitoring and search and seizure conditions were necessary. Dr Singh, a forensic psychiatrist, assessed the defendant’s risk of future violence, concluding that he fell into the high-risk category and recommended an ESO for at least five years. The defendant’s solicitor presented evidence of his accommodation, courses undertaken, and rehabilitative efforts. The court considered the views of both parties, ultimately deciding that while a five-year order might be optimal, a three-year order was sufficient to monitor and manage the risk of reoffending. The court also found that electronic monitoring and search and seizure conditions were not essential for effective supervision.

The court evaluated the evidence and arguments presented, weighing the defendant's history of violent offending against his recent efforts at rehabilitation and the expert opinion on the necessary duration of the ESO. Dr Singh recommended a five-year order to facilitate a longitudinal appraisal of risk, while the defendant's legal representative argued that a shorter period could provide more encouragement for compliance. The court recognised that if the defendant was to revert to his previous lifestyle, it would likely occur quickly. Therefore, a three-year order was deemed adequate to monitor and manage the risk while providing the defendant with a clear, achievable goal to promote his rehabilitation. The court also concluded that electronic monitoring and search and seizure conditions were not necessary for effective supervision, considering the intrusion on the defendant's liberty.

In conclusion, the court granted the State's application for an extended supervision order on the defendant for a period of three years. However, the court refused to impose conditions requiring the defendant to submit to electronic monitoring or search and seizure. The decision acknowledged that while a longer period might be preferable, a three-year order balanced the need to manage the defendant's risk of reoffending and support his rehabilitation. The court left open the possibility for the State to apply for an extension of the order if circumstances warranted it.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendant tendered evidence from his solicitor, Tracy Reynolds, which went to the circumstances of his accommodation since his release to the community, and educative and other courses undertaken by him.Evidence of Dr Singh Dr Singh is a forensic psychiatrist. She saw the defendant on 24 June 2017 for the purposes of a clinical interview, and had access to all relevant documentary material. She prepared two reports, of 30 June 2017 (Ex. 1) and 19 July 2017 (Ex. 1A). Dr Singh took a history from the defendant, and concluded that he endorsed symptoms consistent with a diagnosis of major depressive disorder, panic disorder, substance use disorder (alcohol and cannabis), and an antisocial personality disorder. She observed that:“Currently, his records indicate that he has displayed a pervasive pattern of disregard for the rights of others as evidenced by his offending behaviour, his impulsivity and failure to plan ahead and his aggression as evidenced by his history of assaults and aggression, and reckless disregard for others as evidenced by his prolific and varied offending” (p.7, Ex. 1). The doctor set out the defendant’s personal and criminal history, and noted the rehabilitative and other programmes that the defendant had undertaken, both in custody and in the community, including recently the Violent Offenders Therapeutic Programme (“VOTP”), commencing in April 2016. She thought that he showed “emergent insight” into the events that led to violent conduct and substance misuse, and had the capacity to articulate strategies to reduce the likelihood of such conduct occurring in the future (p.12, Ex. 1). Dr Singh carried out a structured risk assessment, using the Historical Clinical Risk Management-20 Version 3 tool. Referring to the defendant’s consistent history of personal violence and anti-social conduct, drug and alcohol use, relationship instability, chronic unemployment, violent attitudes, and his failure to respond to supervision, together with his anti-social personality disorder, Dr Singh concluded that the defendant “has a high loading of historical risk factors associated with violence in the longer term” compared to the general prison population (p.13, Ex. 1). Whilst the defendant displays some insight into his propensity for violence, Dr Singh noted that the defendant had a history of expressing motivation to address his difficulties, but without achieving change. She thought that the sort of sustained insight required to motivate long term change had not been demonstrated. A recent assault on a fellow inmate in custody suggests that irritability and impulsivity leading to violence remain problematic. Dr Singh concluded that the defendant falls into the high risk category of persons with an elevated future risk of physical violence. She opined that an ESO would adequately manage his risk of committing a further violence offence, and that the conditions proposed for such an ESO [which did not at that time include any reference to electronic monitoring] were comprehensive. As to the duration of an ESO Dr Singh said:“From a clinical risk management perspective, a period of five years supervision is considered reasonable in order to improve Mr Sines’ functioning in the community and facilitate a more informed, longitudinal appraisal of risk.” (p.20, Ex. 1)

Decision

Reasons for decision

Should the defendant’s conduct be such that a longer period of supervision is indicated in practice, it is open to the State to make an application pursuant to s 13(1) of the Act to vary the order, by extending the period of it to 5 years.Conclusion I propose to grant the State’s application to impose an ESO on the defendant, for a period of three years, but to refuse to impose conditions requiring the defendant to submit to electronic monitoring, or search and seizure.

Ratio Decidendi

Legal Principle Established

On balance, I do not regard the search and seizure conditions as essential to the defendant’s effective supervision. It is an intrusion on his liberty that is not, in all the circumstances, warranted.Duration of the ESO Dr Singh’s view is that any ESO should be for a period of 5 years; Mr Sheehan regards a period of less than 3 years as unrealistic. The following evidence was given by him on 21 July 2017:“Q. But what you are saying about that is that three years would be at least a sufficient time for Mr Sines to be supervised in the community, is that correct?A. There's a lot of ifs and buts in there but a lot can be achieved in three years if someone is trying to rehabilitate themselves” (T16:28 – 31). Mr Sheehan went on to note that a 3 year order may provide more encouragement to the defendant to comply with supervision than a longer order. Whilst I accept, having regard to Dr Singh’s opinion, that an order of 5 years duration may well be optimal, the question is, what is an appropriate period to manage the risk posed by the defendant, and to promote his rehabilitation. The evidence appears to suggest that, if the defendant is going to return to his former lifestyle, it will happen very quickly. In the past, it has occurred within a period of weeks or months, not years. It is reasonable to conclude that, if there is to be a breach of the ESO, any breach is likely to be earlier in the period of supervision rather than later. Three years should be adequate to monitor and manage that likelihood. The shorter period has the added advantage referred to by Mr Sheehan of potentially promoting the defendant’s rehabilitation by giving him the incentive of an achievable goal – compliance for 3 years. Should the defendant’s conduct be such that a longer period of supervision is indicated in practice, it is open to the State to make an application pursuant to s 13(1) of the Act to vary the order, by extending the period of it to 5 years.Conclusion I propose to grant the State’s application to impose an ESO on the defendant, for a period of three years, but to refuse to impose conditions requiring the defendant to submit to electronic monitoring, or search and seizure.