The appellant was convicted of the indictable offence of manslaughter and, on 7 November. 2008, was sentenced to impriso
Judgment Summary Supreme Court New South Wales Court of Appeal Lynn v State of New South Wales [2016] NSWCA 57 Beazley P, Basten and Gleeson JJA
The Court of Appeal has dismissed an appeal against a high risk violent offender extended supervision order made pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The appellant was convicted of the indictable offence of manslaughter and, on 7 November 2008, was sentenced to imprisonment for 7 years with a non-parole period of 4 years 6 months. On 10 January 2014, Hidden J ordered under the Act that the appellant be subject to a high risk violent offender extended supervision order for a period of three years. The appellant was further ordered to comply with certain conditions as part of the court’s order. On appeal, the appellant argued that Hidden J had made an error of law in his application of the requirements of the Act. The appellant contended that in determining whether he posed an “unacceptable risk of committing a serious violence offence if…not kept under supervision”, Hidden J had failed to consider the impacts of the proposed order on his individual liberty. In dismissing the appeal, the Court clarified the decision making process required to make an order under the Act. A finding of “unacceptable risk” within the meaning of s 5E(2) is a gateway or threshold requirement to the power to make an order under the Act. The right of an offender to his or her individual liberty is not relevant to the determination of whether the person is an “unacceptable risk” for the purposes of s 5E(2). Where an “unacceptable risk” is established, the Court has a discretion whether and what kind of order to make under the Act. It is at this discretionary stage that the impacts of the proposed order on the offender’s individual liberty can be taken into account.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
