State of New South Wales v McLeod (No 2) [2016] NSWSC 1354 (23 September 2016)

Last Updated: 30 April 2024

Supreme Court New South Wales

Case Name:	State of New South Wales v McLeod (No 2)
Medium Neutral Citation:	[2016] NSWSC 1354
Hearing Date(s):	22 September 2016
Decision Date:	23 September 2016
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The matter is listed for mention before me at 4 PM on Monday 28 November 2016. (2) The defendant is excused from appearing at the mention of 28 November 2016. (3) The matter is listed for final hearing before me at 2 PM on Friday 2 December 2016. (4) The defendant is to appear by way of audio-visual link on 2 December 2016. (5) Access to the court file is restricted to the parties, unless, following notification to parties, leave is granted by a Judge of this Court. My Chambers should be approached in the first instance. (6) The parties have liberty to apply to my Chambers on one hour’s notice. (7) The defendant is subject to an interim detention order commencing at 9 AM on Monday 28 November 2016 and expiring at 5 PM on 2 December 2016. (8) The Court is to issue a warrant for the committal of the defendant to a correctional centre for the period specified in order 7. (9) Proceedings 2016/104290 are subject to a non-publication order until further order of this Court. (10) My judgment of State of New South Wales v McLeod [2016] NSWSC 1052 is to be removed from CaseLaw, and any other database, until further order of this Court.
Catchwords:	CIVIL LAW – Crimes (High Risk Offenders) Act 2006 (NSW) – application for continuing detention order and extended supervision order – defendant bail refused on pending serious criminal charge – whether consent interim detention order is appropriate – interim detention order made
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), s 6 Crimes (High Risk Offenders) Act 2006 (NSW), ss 10(2), 15(4), 18(2), 18B
Cases Cited:	State of New South Wales v Davie [2015] NSWSC 413 State of New South Wales v McLeod [2016] NSWSC 1052 State of New South Wales v Presta [2016] NSWSC 966 State of New South Wales v Strong [2016] NSWSC 573
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Keiron John McLeod (Defendant)
Representation:	Counsel: I Fraser (Plaintiff) A Cook (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2016/104290
Publication Restriction:	Publication restriction lifted

JUDGMENT

Introduction

1. On 1 August 2016, after a preliminary hearing founded on a summons filed on 6 April 2016, I made orders pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) appointing a psychiatrist and a psychologist to assess and report upon Mr Keiron McLeod (the defendant): see my judgment in State of New South Wales v McLeod [2016] NSWSC 1052.
2. Those reports were duly provided, and the matter came before me yesterday listed for a final hearing. An amended summons of 16 September 2016 had been filed, which did not alter the original relief sought but amended the proposed extended supervision order (ESO) conditions. As was clear from the written submissions helpfully filed by counsel for the State of New South Wales (the plaintiff), the primary orders sought were a continuing detention order (CDO) of 18 months, to be followed by an ESO of 3 years. The foreshadowed alternative position of the plaintiff was to have been an ESO of 4 years and 6 months.

A concern

3. At the commencement of the hearing, I expressed my concern as to whether it was appropriate to embark on the hearing at all. That concern arose in the following circumstances.
4. As my first judgment shows, on 30 September 2014 the defendant was sentenced to a head sentence of imprisonment for 2 years with a non-parole period of 18 months, each to commence on the date of sentence. He was due for release to parole on 29 March 2016. On 15 January 2016, however, it seems that the State Parole Authority revoked his parole before that release could occur. As can be seen, that head sentence expires in its entirety on 29 September 2016.
5. That is not the only reason, however, why the defendant is in custody. He is also bail refused with regard to an allegation that he committed serious sexual offences against another prisoner between 3 June 2015 and 4 June 2015. He was charged with those offences on 3 March 2016, and, as at the date of my first judgment, they were making their way through the Local Court at Wagga Wagga: see my first judgment at [28]. By the time of the morning of the hearing yesterday, it had been made clear to me that those allegations are listed for trial in the District Court at Wagga Wagga on 28 November 2016.
6. I raised with the parties the possibility that the defendant could be convicted of one or more serious offences at that trial. In light of his criminal record (detailed in my first judgment), if convicted of such an offence it would be completely inevitable that the defendant would receive a lengthy sentence of imprisonment. In those circumstances, I queried with both counsel how I could practically make an order (whether a CDO or an ESO) when the future was so unclear, in particular as to whether or not the defendant will be released from custody shortly, or will be released many years from now.
7. Counsel for the plaintiff invited me to s 18(2) of the Act, in support of the proposition that, if I were to impose a CDO and a sentence of imprisonment were subsequently imposed, the CDO would continue to “run”, with the result that the incarceration of the defendant would not be extended (on the assumption that his incarceration pursuant to a putative sentence would be longer than his incarceration pursuant to a CDO).
8. Counsel for the plaintiff accepted, however, that the position with regard to an ESO would not be analogous; in other words, any ESO that I saw fit to impose would be “post-dated”, by way of the operation of s 10(2) of the Act. The result would be that, if I were minded to impose an ESO, I would potentially be fettering the liberty of the defendant many years hence, when circumstances may have changed very markedly.
9. My separate but related concern was that it was proposed to place voluminous material before me with regard to the current state of the behaviour, character, and personality of the defendant. It was also proposed that a number of experts who had expressed opinions about him within that material would be cross-examined about those opinions. Again, my concern was that that whole exercise may be a fruitless one, in that it is quite possible that, within a little over two months, it will be clear that the defendant will not be released into the community for many years.
10. I allowed the parties time to reflect together on the matter, in order to see whether some joint position could be arrived at whereby, on the one hand, a fruitless exercise would not be undertaken by me and, on the other hand, the interests of both parties – including the proposition of the plaintiff that the defendant would present an unacceptable risk to the community if released without, at the least, stringent supervision – could be accommodated.

Draft consent orders

11. Ultimately, I was helpfully provided with draft consent orders. Counsel for the plaintiff explicitly expressed his contentment with them. Counsel for the defendant – whose experience in criminal matters is well known – expressed her own acceptance of them, and also explicitly informed me from the Bar table that she had discussed them with the defendant and that he personally accepted their appropriateness.
12. It can be seen that many of the orders proposed in that document are unremarkable and designed to achieve uncontroversial logistical ends. For example, proposed order 1 is designed to ensure that the parties and I can be apprised of developments with regard to the trial in the District Court. Proposed order 3 is designed to ensure that a final hearing of this application can take place very promptly after the conclusion of the criminal trial. Proposed orders 2 and 4 are designed to ensure that the defendant is apprised of developments in this application without that process being unduly burdensome upon him.
13. Order 5 is designed to ensure that the rehabilitation of the defendant is not affected by personal details being promulgated publicly about where, if released in due course, he might live (and other personal matters). As I understand it, the order is also directed towards ensuring that no pre-trial publicity with regard to this application derails the criminal trial that will commence shortly.
14. Proposed order 6 is designed to ensure that if something very unexpected happens with regard to the custodial situation of the defendant – for example, him making a successful application for bail between now and the trial date, or the pending criminal proceedings being abruptly discontinued – then this application can be brought forward extremely urgently.
15. Orders 9 and 10 are, again as I understand it, designed to ensure that publicity about the criminal record and background generally of the defendant (each of which was discussed at length in my first judgment) does not endanger the trial.
16. As I have said, each of those orders was sought by consent. Each of them to my mind is perfectly appropriate. In particular, I am satisfied that, in light of the fact that the defendant will stand trial shortly on an allegation of serious sexual offences, and one presumes (without any information to the contrary) that that will be a trial by jury, order 9 should be made on the basis that it is “necessary to prevent prejudice to the proper administration of justice”, pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW). I say that bearing in mind the primacy given to open justice by Parliament in s 6 of that Act. Of course, order 9 is directed towards non-publication of the details of this pending civil application before me; I do not presume to make any orders with regard to the pending criminal allegation in the District Court.

Interim detention order

17. Order 7 (and mechanistic order 8) were also the subject of explicit consent on the part of counsel for the defendant and the defendant himself. Nevertheless, it was accepted by both counsel that, in order to make such an order, I would need to be independently satisfied of its appropriateness.
18. The order as originally formulated was as follows:

7. That the defendant be subject to a high risk violent offender interim detention order commencing at 9 am on 28 November 2016 and expiring at 5 pm on 2 December 2016.

19. A number of aspects of the proposed order are noteworthy.
20. First, it extends for only 5 days inclusive, from 28 November 2016 to 2 December 2016, the latter date being the proposed date for final determination of this application.
21. Secondly, on the assumption that the trial will commence on 28 November 2016, and on the further reasonable assumption that the defendant, having been bail refused on the sexual allegations for many months, will remain bail refused until delivery of verdicts, the making of the proposed interim detention order (IDO) would have no practical effect whatsoever. Rather, I am being asked to make it out of abundant caution and to preserve the current position until things are clearer.
22. Thirdly, the parties were agreed that the test to be applied is that contained in s 18B of the Act; namely, whether I am satisfied “that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order”. Furthermore, neither party submitted that my analysis of that test in my first judgment (albeit with regard to orders of a different nature that were sought on that occasion) was erroneous in any way: see [82]-[88] thereof.
23. Fourthly, in State of New South Wales v Davie [2015] NSWSC 413, I approached the question of the making of an IDO on the basis that, unless one could be satisfied that an interim supervision order (ISO) would not be appropriate, than one should not make an IDO: see [24]-[28]. Whilst accepting that that approach of mine has been the subject of some subsequent controversy (see Campbell J in State of New South Wales v Strong [2016] NSWSC 573, and Beech Jones J in State of New South Wales v Presta [2016] NSWSC 966), each counsel was content for me to approach the matter on that basis.
24. In that regard, counsel for the defendant emphasised that the recent reports obtained from Dr Ellis, forensic psychiatrist, and Mr Sheehan, forensic psychologist, are (to state their import very succinctly) to the effect that a CDO is not called for, and that an ESO would be sufficient. But I was taken to the portions of those reports that make it clear that those opinions are founded on the proposition that the defendant would have suitable and highly structured accommodation available to him on release to an ESO. In fact – entirely as one might expect, in the circumstances of the defendant being bail refused pending a criminal trial of serious allegations – no such accommodation has been put in place.
25. In other words, for the sake of this highly circumscribed consent application only, each party was content for me to approach the matter on the basis that an ISO for a period of 5 days would be inappropriate, and an IDO for the same period would be appropriate.

Determination about consent IDO

26. I accept that joint submission. I also accept that the situation that has arisen here is an unusual one. On the one hand, the immediate future of the defendant is very unclear, and that makes it difficult for me to craft orders that are appropriate, especially bearing in mind that, in my opinion, underpinning the whole philosophy of the Act is its application to persons who are coming to the end of a sentence of imprisonment, and who will thereafter be at unconditional liberty. On the other hand, I think that the proposition of the plaintiff that, in all the circumstances set out in my first judgment, including the life history of the defendant and his criminal record, there is a question of endangerment of the community if the defendant is released abruptly without any fetter on his liberty whatsoever, has force.
27. Finally, for the reasons explained in my first judgment, I remain of the view that the basal test for the making of an IDO contained in s 18B of the Act has been made out.
28. In short, for the foregoing reasons, I am content to make today the consent orders that were sought by the parties after reflection yesterday, subject to some very minor grammatical and mechanistic changes that I have made to them.

Orders

29. I make the following orders:

(1) The matter is listed for mention before me at 4 PM on Monday 28 November 2016.

(2) The defendant is excused from appearing at the mention of 28 November 2016.

(3) The matter is listed for final hearing before me at 2 PM on Friday 2 December 2016.

(4) The defendant is to appear by way of audio-visual link on 2 December 2016.

(5) Access to the court file is restricted to the parties, unless, following notification to parties, leave is granted by a Judge of this Court. My Chambers should be approached in the first instance.

(6) The parties have liberty to apply to my Chambers on one hour’s notice.

(7) The defendant is subject to an interim detention order commencing at 9 AM on Monday 28 November 2016 and expiring at 5 PM on 2 December 2016.

(8) The Court is to issue a warrant for the committal of the defendant to a correctional centre for the period specified in order 7.

(9) Proceedings 2016/104290 are subject to a non-publication order until further order of this Court.

(10) My judgment of State of New South Wales v McLeod [2016] NSWSC 1052 is to be removed from CaseLaw, and any other database, until further order of this Court.

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Amendments

30 April 2024 - Publication restriction lifted