State of New South Wales v AA

[2020] NSWSC 692

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v AA [2020] NSWSC 692

Hearing dates:

21 May 2020

Date of orders:

21 May 2020

Decision date:

04 June 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. Order that, pursuant to ss. 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 AA be the subject of a continuing detention order for a period of 12 months from 21 May 2020.

2. Order that, pursuant to s. 20(1) of the Crimes (High Risk Offenders) Act 2006, a warrant be issued for the committal of AA to a correctional centre for a period of 12 months from 21 May 2020.

Catchwords:

HIGH RISK OFFENDER – application for continuing detention order – defendant convicted as a juvenile of serious sexual offences – long history of exposure to and participation in violence – serious sex offences at age 13 and age 16 – no experience in the community as an adult – poor history of compliance with supervision – poor institutional history – failure to complete therapeutic programmes in custody - concession as to unacceptability of risk – question as to whether the defendant poses an unacceptable risk to the community if not kept in detention - whether supervision in the community is sufficient – nature of conditions of supervision – limitations upon supervision – order made

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Decision restricted [2020] NSWSC 172

Texts Cited:

Nil

Category:

Principal judgment

Parties:

State of New South Wales
AA

Representation:

Counsel:
Ms J Davidson (Plaintiff)
Mr E.W.L Anderson (Defendant)

Solicitors:
Ms L Nicolls (Plaintiff)
Ms H Lee (Defendant)

File Number(s):

2019/00397483

Publication restriction:

Nil

Judgment

1. HER HONOUR: AA (the defendant) has known nothing but violence in his life, as both witness and perpetrator. Much of that life has been spent in institutions - places of detention or imprisonment. At the age of 30 years he is due, for the first time in his adult life, to be released into the community, at the end, on 5 March 2020, of a lengthy overall sentence that was imposed upon him when he was 18 years old, for crimes of grave sexual and other violence, committed when he was 16 years old.

2. The State of New South Wales contends that his release would put the community in danger and, by amended summons dated 1 May 2020, sought an order for his continuing detention for twelve months or, alternatively, for his close supervision in the community for five years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The defendant conceded that he was a high risk offender within the meaning of the Act, and that the procedural requirements for the application had all been met by the State. He also conceded that the Court would be satisfied of those matters that justified the imposition of a supervision order upon him, and that it was appropriate that an order for his supervision in the community be made. The only issue before the Court was whether close community supervision was adequate to manage the risk posed by the defendant, or whether a detention order was required.

3. At the conclusion of the hearing on 21 May 2020, I made the detention order sought by the State. These are my reasons for so doing.

Procedural Background

4. Proceedings were commenced against the applicant by summons filed in the Registry of this Court on 18 December 2019. The orders ultimately sought then were for a continuing detention order (“CDO”) for 16 months pursuant to ss 5C and 17(1)(b) of the Act or, in the alternative, an extended supervision order (“ESO”) of five years duration pursuant to s 17(1)(a).

5. The State’s application came before Button J at an early stage of the proceedings, when his Honour was asked to make an interim detention order pending the final resolution of the matter. On 4 March 2020, the order was made: Decision restricted [2020] NSWSC 172 (“Decision restricted No. 1”). In Decision restricted No. 1, his Honour recounted the circumstances of the defendant’s background and criminal history. It makes for essential reading in fully understanding these reasons and I am indebted to his Honour for his judgment. I do not propose here to repeat its contents.

6. In particular, Button J gave a concise if disturbing account of the defendant’s offending history, including the details of the offences and sentences that have seen the defendant incarcerated since 2007 until now, at [13]–[32]. The overall sentence imposed for two counts of aggravated sexual assault together with related offences of armed carjacking and kidnapping was one of 13 years imprisonment with a non-parole period (“NPP”) of 9 years. In imposing that term, the sentencing judge, his Honour Judge Sides QC, was pessimistic as to the defendant’s future prospects, despite his young age.

The Evidence Relevant to the Application

The State’s Case

7. The defendant’s criminal and personal background was established by reference to the material tendered by the State [and the reports of court appointed experts]. The State’s case was:

1. An affidavit of David Yang affirmed on 17 December 2019, annexing Ex‑DY1, a volume of documentary exhibits;

2. An affidavit of Lucy Nichols affirmed 4 February 2020, together with a further affidavit of Ms Nichols affirmed on 14 May 2020; and

3. An affidavit of Danielle Matsuo affirmed on 4 May 2020.

8. The starting point must be the defendant’s criminal history.

9. His first offences were very serious offences of sexual and other violence, referred to in Decision restricted No 1 at [2]–[10]. They were offences of assault with intent to rob whilst armed, robbery whilst armed, sexual assault, indecent assault, and hindering the discovery of evidence. The defendant appeared before the Children’s Court on 20 August 2004 for those offences, with a 12 month control order imposed, the non-parole period (“NPP”) being fixed at 3 months. When subject to parole, the defendant was required to accept the supervision of the Office of Juvenile Justice (“JJO”) and, particularly, to accept directions as to participation in sex offender and violent offender therapeutic programmes.

10. He breached parole by failing to do as directed by the JJO.

11. On 26 October 2006, the defendant committed two offences of aggravated break enter and steal, the circumstance of aggravation being that he was in company. Another control order was imposed on him in the Children’s Court on 25 June 2007, of nine months duration with a six month NPP. Release was again subject to the supervision of the JJO. There was additionally a charge of failing to appear, dealt with by a dismissal with a caution, and an offence of destroying or damaging property, both dealt with by a dismissal with caution, pursuant to s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987 (NSW).

12. Just four days later, on 29 June 2007, the defendant was back before the Children’s Court, on this occasion for offences of break, enter and steal (2 counts), and having goods in custody. He was sentenced to concurrent control orders, with the longest sentence being for 15 months with a NPP of three months. Supervision of the JJO was imposed.

13. On the same date a 12 month bond was imposed for possession of a prohibited drug.

14. By August 2007, the defendant was before the Children’s Court for committal, to be dealt with at law for the index offences, committed on 14 May 2006. He was convicted on 27 March 2008 before Parramatta District Court of offences of aggravated (armed) carjacking, kidnapping, and two counts of aggravated sexual assault. The circumstances of the offences are set out in Decision restricted No 1 at [13]–[24].

15. The remarks of the sentencing judge were set out by Button J at [25]–[31].

16. The defendant has been in custody ever since that sentence was imposed, initially in a juvenile detention facility as ordered by his Honour Judge Sides QC, and later in adult gaols.

Corrections Reports

17. A volume of documentary material from the Department of Corrective Services was before the Court, including several reports to the Parole Authority. It is not intended to summarise all of that material. The most pertinent for present purposes are the various reports completed as the defendant approached the earliest date upon which, under the terms of the sentence imposed upon him by Judge Sides QC, he could be released to parole; 5 March 2016.

18. On 7 December 2015, a pre-release report was prepared by Phillipa Press in readiness for a parole hearing held on 14 January 2016. Ms Press gave the defendant’s security classification as “B”. She concluded that the defendant’s behaviour in custody had been “somewhat unstable”. He had demonstrated a “recalcitrant attitude”. This poor behaviour had resulted in periods of segregation, institutional charges, and regression in classification. It was noted that the defendant had continued to engage in illicit drug abuse whilst in custody, resulting in removal from the Intensive Drug and Alcohol Treatment Program, causing Ms Press to have “limited confidence in his capacity to abstain whilst in the community”. She concluded that he continued to represent a high and unmitigated risk to the community.

19. At the time this pre-release report was written, the defendant had not completed sex offender treatment. For this reason, and until he had completed the Custody Based Intensive Treatment (“CUBIT”), release to parole was not recommended. The State Parole Board refused parole in January 2016.

20. On 29 December 2016, another report was prepared by Martin Kerrigan for a Parole Board hearing on 12 January 2017. Mr Kerrigan noted that the defendant had been subject to an unscheduled Classification Review in August 2016 regarding regression and transfer after he was found in possession of a mobile phone, also being removed from the CUBIT area. He gave the defendant’s recent security classification as “A2 Maximum Security”, the defendant having regressed from a “B” classification.

21. In relation to the index offence, Mr Kerrigan noted that the defendant continued to deny that the sexual assault of which he had been convicted had involved non-consensual sex, and claimed that he had had sexual intercourse with the victim “many times before”. He maintained his innocence.

22. At this time, and although the defendant had the support of his mother and extended family, he did not want to be considered for Parole, stating that he had “been told what to do by Corrections for the last 10 years and does not want to be told what to do by Parole when released”. He said that he preferred to “get out a free man”. Mr Kerrigan thought that the defendant lacked the responsibility to meet the obligations of parole.

23. He observed that the defendant’s behaviour in custody had remained poor. He had a number of institutional offences laid against him, including for drug use, possession of prohibited goods, damaging property and general disregard for routine and procedure. He had tested positive for non-prescription buprenorphine in four of the five drug tests administered since March 2016, and refused to provide a sample for testing on another occasion.

24. The defendant had satisfactorily completed the EQUIPS Addictions Programme in December 2016. He commenced the CUBIT program in January 2016, before being suspended in May 2016 after testing positive for non-prescribed buprenorphine. Despite expressing an intention to return to the programme, which required him to remain drug free, he tested positive again later in that year, disallowing him from being considered for re-entry to the programme.

25. The defendant was assessed as continuing to pose a high level of risk in the community. Mr Kerrigan concluded that release to parole could not be recommended until the defendant completed the CUBIT program and demonstrated an improvement in custodial behaviour. Parole was refused.

26. The defendant’s conduct had not changed by the following year, when he sought parole and was again reviewed for it. A report was prepared by David Pitcher dated 13 December 2017, for a parole hearing on 4 January 2018. In his report, Mr Pitcher noted that the defendant’s security classification had not improved, and he continued as an “A2 Maximum Security inmate”.

27. He had been charged with institutional offences on four further occasions since the December 2016 parole report, all relating to continuing drug use. Further, the defendant’s institutional employment, where his engagement had, in any event, been “sporadic”, had been terminated after he refused to “muster for work”. He maintained his claims of consensual sex with his victim, and of his innocence.

28. The author observed that substance abuse was a “substantial pattern” for the defendant, and presented as a risk factor for sexual and other recidivism. The defendant himself said that he was dependent upon buprenorphine.

29. The defendant was informed on numerous occasions of the need for him to cease drug use and progress in classification in order to be considered for the CUBIT programme, which had to be completed for him to be considered for release to parole, but his behaviour remained poor. He continued using drugs and his classification as an A2 inmate could not be changed. Parole was not recommended.

30. In endorsing Mr Pitcher’s recommendation, the co-signatory Julie Stewart noted that, whilst the defendant continued to:

“disregard the need to address his substance addiction, violent sex offending behaviour and poor ongoing institutional behaviour, the risk his release would pose on the community would appear to be both escalated and unreasonable”.

31. Parole was subsequently refused to the defendant; the State Parole Authority stated that he needed to complete a programme to address his sex offending behaviour, and to improve his custodial behaviour.

32. In a letter to the State Parole Authority dated February 2018, the defendant acknowledged that he had not completed the CUBIT programme, and outlined his reasons for not finishing it, being that he did not want to listen as men described what they had done “to kids”. He provided a list of his achievements and certifications whilst in custody, and noted that he was not proud of the institutional charges and bad decisions he had made, but nonetheless expressed his commitment to abide by any parole conditions.

33. In a further pre-release report dated 16 May 2018, Mr Pitcher and Ms Stewart supported their 2017 recommendations against parole, noting that the defendant still needed to progress to a “C” classification and complete CUBIT. On 31 May 2018, the State Parole Authority reviewed and upheld its January decision to refuse parole.

34. The most recent reports are dated 20 December 2018, prepared for a parole hearing on 10 January 2019. In her report, Julie Stewart gave the defendant’s classification as “B”. The defendant had not had any face-to-face visits from family members since the last report, although he maintained regular phone contact with his mother.

35. In an interview with Community Corrections staff in preparation of the report, the defendant became verbally abusive after discussions of his custodial behaviour and drug use, and stated that he no longer wanted to be considered for parole. He was interviewed a second time a few days later, and maintained this position.

36. His recent custodial behaviour had been deemed unsatisfactory, having failed two drug tests since May 2018. He had again completed the EQUIPS Addiction programme in July 2018; however, the defendant’s violent sexual offending remained unaddressed, as did his substance addiction. In recent months, he had, however, maintained employment. His failure to meet the requirements of accessing an early classification review due to ongoing behavioural issues and illicit substance abuse was noted by Ms Stewart, and parole was again not recommended.

37. In his short report annexed to that of Ms Stewart, Darrin Grose opined that the defendant posed a serious, unmanageable risk to community safety, evidenced by his expressed decision to forego consideration for parole rather than comply with proposed supervision requirements. His progression in custody in relation to addressing his violent sexual offending had been hindered by his poor custodial behaviour and continued illicit drug use. Mr Grose supported Ms Stewart’s recommendation.

38. Parole was subsequently refused to the defendant.

39. The denial of parole over the years has been linked to the defendant’s unwillingness to address his sexual offending, reduce his security classification, accept supervision and discontinue use of illicit substances, as well as improve his custodial behaviour.

Risk Assessment

40. With parole consistently declined, and the expiration of the defendant’s sentence approaching, consideration was given to the level of risk that the defendant might pose upon release into the community.

41. Prior to the commencement of these proceedings, Dr Richard Parker, an extremely experienced and highly qualified Senior Psychologist with Corrective Services NSW (“CSNSW”), completed a risk assessment report (“RAR”) relevant to the defendant, dated 15 July 2019. He both interviewed the defendant and reviewed an exhaustive amount of documentary material prior to preparing his assessment.

42. Dr Parker obtained a history, both from the defendant and from the documentary material.

43. The defendant is the second of four children to his parents. His father died by suicide when he was aged 2 years [referred to in some material as 3, or 4 years] by directing a shotgun blast into his head, in front of the defendant. Left with his mother, the defendant was neglected, as his mother was a drug addict.

44. As a child, the defendant’s behaviour was poor, and he was expelled from school on two occasions, before abandoning his education altogether in Year 9. He completed Year 10 in juvenile detention, but has no other formal qualifications. Since he has been largely incarcerated since aged 13 years, he has no employment or other history in the community.

45. The defendant has been a drug user from an early age, perhaps 13 years. He has used one or more of cannabis, methylamphetamine, cocaine, and ecstasy, as well as alcohol, regularly. Drug abuse continued unabated (until very recently) in custody, with the defendant illicitly using buprenorphine.

46. His poor behaviour also continued in custody with numerous institutional offences connected with his drug abuse, but also breaches for possessing weapons and other infringements. Despite being at the very end of his sentence, the defendant remains classified as B-Medium; a high security classification for an individual who has been incarcerated for so long.

47. The defendant has no history of psychiatric disorders and functions in the low-average range intellectually. He was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) as a child and briefly medicated.

48. Dr Parker administered the Psychopathy Checklist – Revised test (“PCL-R”) to the defendant, with the result suggesting that he has a psychopathic personality, perhaps corresponding to an Antisocial Personality Disorder. Dr Parker observed that a psychopathic personality is significant in the context of risk assessment because the psychopath typically has a low level of emotionality and, without a sense of moral emotion, there is nothing to restrain rule breaking. As Dr Parker noted, “psychopathy supplies disinhibition” (p 6).

49. The defendant displayed no real insight into his sexual offending, claiming for many years that the assaults were consensual, before admitting to Dr Parker that he wanted to be “like his uncle”.

50. As to treatment over his long years of imprisonment, the defendant has managed very little in the way of therapeutic programmes, generally failing or being ejected from those programmes he has commenced. He began the Intensive Drug and Alcohol Treatment Programme (“IDATP”) but was discharged after about nine months because of ongoing illegal drug use and intimidating behaviour. He commenced CUBIT (now the High Intensity Serious Offenders Programme) but was removed after about 4 months due to continuing drug use. He was, in any event, noted by the course facilitator to be disengaged, apparently distinguishing himself and his own sexual crimes from those of other participants. At the time of assessment by Dr Parker, the defendant had been refused entry to the Violent Offender Therapeutic Programme (“VOTP”) because of his drug use and possession of gaol made weapons. (He is now undertaking VOTP, a feature to which I shall return).

40. Against that background, Dr Parker administered a number of actuarial tests to assess the risk that the defendant might pose to others in the community if discharged from prison. There are, of course, limitations to the predictive capacity of such tests, as Dr Parker observed. It is simply not scientifically possible to predict whether or not an individual will or will not reoffend. The most that can be done is to assess historical and dynamic features to place an individual within a statistical cohort of likely risk of recidivism. Attention to the features relevant to an individual informs the overall assessment.

41. The Level of Service Inventory – Revised (“LSI-R”) assesses the risk of general reoffending. The defendant’s score on this test placed him at the medium – high range, falling within a group of offenders with a 67% rate of re-offending.

42. The Violence Risk Appraisal Guide – Revised (“VRAG – R”) assesses the risk of violence for serious offenders. The score returned by the defendant to this test when administered by Dr Parker was equal to or higher than 99% of the sample, placing him in the ninth of nine “bins”. More than three-quarters of offenders with a similar score reoffended violently within five years of release from prison. An even higher proportion – 87% – had done so within 12 years of release.

43. In considering criminogenic needs relevant to the defendant, Dr Parker concluded that a number of areas pointed to elevated risk: an antisocial personality; anti-social attitudes; and anti-social associates.

44. As already noted, an anti-social or psychopathic personality suggests that the defendant lacks a level of emotion that ordinarily inhibits crime. Without emotional restraint, such as feelings of guilt, crime is more likely. There is a likely link between the defendant’s psychopathic personality and his history of sexual offending, with features of the former, such as problems with impulse control, thoughtlessness, and irresponsibility, pointing to increased risk of sexual offending.

45. A number of the defendant’s psychopathic personality traits contribute to heightened risk. He has a sense of entitlement, which Dr Parker considers to be a likely major driver of the defendant’s offending behaviour. The defendant considers that his needs and desires are more important than those of others; without acceptance of the rights of others, continued offending is likely.

46. Dr Parker is of the view that the defendant regards the world as a dangerous place, leading him to adopt aggressive strategies to defend against it, evidenced by his acquisition and possession of weapons in gaol. This trait also elevates the risk of violent crime.

47. Although his psychopathic personality and sense of entitlement may be relevant to this aspect of the defendant’s conduct, his attitudes towards women are also likely problematic features. The defendant’s expressed attitudes, and his crimes, suggest that he regards women generally as different from men, being objects available to him for sex, and accepting of sex with him despite any protest made or resistance offered. There is some reason to conclude that the defendant views himself, in any event, as not responsible for his sex crimes, because of the perceived uncontrollable nature of the male sex drive.

48. Having antisocial associates is a further criminogenic feature relevant to the defendant. Commencing with his family, and continuing when in detention and later adult custodial institutions, the defendant has been surrounded by criminals all his life. Risk of serious recidivism will be heightened if his associates upon release continue to be criminals.

49. Considering both test results and criminogenic features, Dr Parker concluded that:

“[…] while Mr AA may not actively seek to sexually or violently offend, the threshold for it to occur is relatively low. The actuarial instruments […] place Mr AA at a high risk of sexual, violent and general recidivism” (p 12).

61. He posited that the most likely scenario for risk to manifest as violent crime would be in the course of the defendant leading an antisocial lifestyle in the community, including substance abuse and association with antisocial peers.

62. Dr Parker thought that, in what he considered the unlikely event that the defendant could both commence and complete the VOTP prior to release into the community, there may be benefit to him in so doing.

Risk Management

63. Pursuant to ss 9(3)(d1) and 17(4)(d1) of the Act, a risk management report (or “RMR”) was prepared by Erin Kirkwood, a Senior Community Corrections Officer with the Extended Supervision Order Team (“ESOT”) on 20 August 2019.

64. Ms Kirkwood interviewed the defendant, and reviewed CSNSW records and other documentary material, including Dr Parker’s RAR.

65. She noted that, although the defendant has had no prior contact with Community Corrections, he had formerly been subject to the supervision of the JJO, when briefly released to parole on 17 November 2004. His response to supervision in the community then was unsatisfactory: he did not comply with requirements placed upon him, and did not engage in sex offender treatment. His parole was breached after only two months at liberty, and he was returned to detention.

66. Upon release in the future, the defendant planned to live with his mother in Minto, and suggested that he would do whatever he had to do to remain in the community. Ms Kirkwood noted that the risk factors to be managed were identified as the defendant’s antisocial personality, his sexual deviance, his antisocial attitudes, and his antisocial associates.

67. The strategy to manage the risks in the community include weekly interviews with the defendant by ESOT staff at home or in “the field”, which would focus on the development and implementation of a case plan. Specific activities (“Practice Guide for Intervention Activities”) would be used to promote compliance with supervision, and challenge criminal attitudes. The efficacy of these measures was difficult for Ms Kirkwood to gauge, given the absence of any history of community based supervision of the defendant as an adult, and the limitations that could apply to their implementation.

68. Field visits would occur monthly, at a minimum, and be coupled with field surveillance and observations. However, the utility of field visits can be adversely affected by the availability of staff to conduct them, and by the prospect that visits to the defendant’s home could be deemed unsafe for staff if the environment is, or became aggressive, and thus unable to occur.

69. Visits to third parties, such as treatment providers, would occur on a weekly basis, although such visits are dependent upon the defendant consenting to contact being made with such persons or agencies.

70. Electronic monitoring, schedules of activity and curfews could provide tools by which to monitor the defendant’s movements, activities, and contacts, and promote a positive lifestyle but, again, there are limitations on the effectiveness of such measures. Significantly, these strategies:

“will not prevent any high risk situations or offending behaviours occurring while [the defendant] is engaged in an approved activity” (RAR, p 5).

71. Ms Kirkwood proposes referral of the defendant to CSNSW psychological services to assess his needs, particularly given the failure [as at August 2019] to participate in the VOTP to conclusion or, if the VOTP was completed prior to release, for appropriate maintenance of the skills learned. This strategy, however, would only be successful if the defendant fully engaged, something not yet demonstrated at the time the RMR was prepared.

72. Drug rehabilitation programmes and drug testing could be utilised to assist the defendant to remain abstinent from problematic drug and alcohol use, and to monitor his success in that regard but, again, there are limitations on the efficacy of such measures. The defendant has often refused to submit to drug testing in the past and [until recent months] has continued to use drugs, even when participating in rehabilitative programmes. Further, if random testing of the defendant did not occur proximate to drug use, it will not be detected.

73. Restrictions can be placed upon the defendant in terms of his associates, or upon the commencement of any intimate relationship, but failures to observe the restrictions can be difficult to detect. It would be a relatively easy matter for the defendant to associate with an unapproved person or group, at an approved place, with little chance of that being discovered. An intimate relationship could be formed by the defendant, in circumstances where he refused consent to the ESOT to disclose his criminal past to the individual concerned. In these ways, the strategies may be undermined.

74. Searches would be conducted of the defendant, his home, and any phone or other electronic device to monitor compliance with conditions imposed upon him, but if the defendant did not consent to a search, the discovery of concerning items could be delayed or hindered.

75. Any risk management strategy would be subject to ongoing review.

The VOTP

76. Danielle Matsuo, a psychologist and Director of Programmes at CSNSW, had access to Dr Parker’s report and the defendant’s CSNSW file in preparing her affidavit of 4 May 2020. She provided information concerning the defendant’s engagement with therapeutic programmes in custody and, specifically, about the VOTP, including the nature of the programme, and the defendant’s engagement with it. There has been a delay in both the defendant’s assessment for the programme and his participation in it, because of institutional misconduct by him. The programme lasts for about 12 months, and the defendant can only complete it if subjected to a CDO.

77. If the defendant is made subject to a CDO, he will continue in and hopefully complete the VOTP. If he completes the programme, he will be eligible for VOTP Outreach, a maintenance programme conducted in the community. If he is released without completing the VOTP, he is not eligible for the Outreach programme. No other community based programme offers the sort of intensive therapy available through Outreach.

78. Ms Matsuo considers other risk management programmes, or a maintenance programme, insufficient to address an offender’s risk of re-offending in the absence of completion of the VOTP.

Court Appointed Experts

79. In addition to making an order for the defendant’s interim detention, Button J made orders for him to be examined by two relevantly qualified experts, Dr Richard Furst and Mr Patrick Sheehan, and for those experts to report to the Court following their respective examinations.

80. Dr Furst is a Consultant Forensic Psychiatrist in Sydney. In making his recommendations, Dr Furst relied on his assessment of the defendant and relevant documentary material provided to him. Dr Furst addressed the defendant’s psychiatric history, drug and alcohol history, medical and family history.

81. Dr Furst observed that, at the time of the psychiatric assessment, the defendant was a 30 year old Aboriginal man, who has been in custody since he was 16 years of age. In his report dated 12 April 2020, Dr Furst noted that the defendant was alert and cooperative with the assessment, having no acute signs of depression or anxiety, thought disorder or psychosis. He presented as having lower than average intellectual ability.

82. Dr Furst took a history from the defendant. He described him as having a history consistent with early “childhood adversity, neglect and trauma”, including witnessing his own father shooting himself when he was two years of age. His mother had addiction issues and neglected the defendant.

83. The defendant was diagnosed with ADHD when he was 10 or 11 years of age. He was “unsettled” from an early age, and regularly got into trouble at primary school, which led to him being expelled. He was eventually placed in a behaviour school before enrolling in the local high school, where he continued to fight with other children, leading to another expulsion at the age of 13 years.

84. Around this time, the defendant came under the “antisocial and pro-criminal influence” of his uncle, Dudley A. He committed his first offences in the company of Dudley A in 2003, when aged about 13, offences of armed assault with intent to rob, robbery whilst armed, and sexual assault offences. A control order was imposed, of 12 months duration. When released as a 14 year old, the defendant lived with an aunt in Cabramatta.

85. He continued to commit serious crime, including aggravated break, enter and steal. He also breached supervision orders imposed by the Children’s Court, by failing to report to the JJO. The defendant told Dr Furst that he committed various break and enter and car theft offences when aged 14-15 years, which did not come to the attention of police.

86. The defendant told Dr Furst that he smoked cannabis on a regular basis between the ages of 13 years and 16 years, and used methylamphetamine on occasion. Dr Furst noted that there was no family history of mental illness and no diagnosis of mental illness for the defendant.

87. In relation to the index offences, the very serious sexual offending and car-jacking offence at Cabramatta on 14 May 2006, the defendant told Dr Furst that:

“I was thinking about my uncle…I wanted to be like my uncle. He was taking us out. Treating us good. I was learning from him…All I knew was crime at the time…that’s all we were doing. Me, my uncle and two older cousins. I was following in his footsteps. I wanted to be like them. I thought if I do the same thing as them, I’ll be right.”

88. Dr Furst noted that the defendant lacked insight and empathy at the time of his offending, and had “little, if any, empathy towards the victims of his juvenile offences”. He observed:

“[…] his attitudes evident in his adolescence and in his earlier adult years in custody are highly suggestive of an antisocial personality disorder as his primary mental disorder.”

89. In relation to the defendant’s progress in custody, Dr Furst noted that the defendant was illiterate at the time of his arrest in 2006, and subsequently engaged in education courses to learn to read and write. He completed his Year 10 education and a number of other courses in custody, and worked. The defendant has completed a number of other vocational courses, including courses relating to welding, the use of a forklift, two First Aid courses, and a barista course. He has also undertaken some therapeutic programmes over the last several years, the “Getting SMART” programme on two occasions, “CALM” (an anger management programme), also on two occasions, and “Managing Emotions”. The defendant commenced the CUBIT programme for sex offenders in 2016, but did not cope with the group format; telling Dr Furst that he “couldn’t sit there and listen to them talking about touching kids…some of the stories…I had to walk out…too shocking.”

90. Dr Furst concluded that psychometric testing and the defendant’s capacity to complete courses in custody indicates that he does not have an intellectual disability, with his full-scale IQ falling in the low-average range.

91. The defendant denied having any sexual problems prior to moving to Sydney and coming under the influence of his uncle, Dudley A, who exposed him to pornographic material. He looked up to his uncle, who was then in custody serving lengthy sentences, and at that time, he “wanted to be with him”. He told Dr Furst, “I was thinking, do something bad and be with him.”

92. The defendant denied any current urges of a sexual nature. He told Dr Furst of a prior relationship with a girl whom he saw for about a year when he was aged 16. He has kept in regular contact with that person. He also speaks to his mother, sisters and brothers regularly.

93. In early 2016, the defendant commenced the High Intensity Sex Offender Program (“HISOP”, previously referred to as the CUBIT program), but was removed in May 2016 after testing positive to non-prescribed buprenorphine. To be permitted to return to HISOP, the defendant was required to have a reduction in his security classification and demonstrate a willingness to abstain from drugs. Subsequently, he completed the EQUIPS Addiction Programme, but continued to use drugs, before participating in the EQUIPS Addiction Programme again, while continuing to use drugs. Previously, the defendant had also commenced the Intensive Drug and Alcohol Treatment Programme in November 2013, but was discharged in August 2014 after continued drug use and an incident of intimidating behaviour.

94. Relevantly, the defendant is currently taking part in the VOTP at the MSCP, Long Bay Correctional Centre. He was initially refused entry due to his ongoing drug use and possession of a gaol-made weapon. He was later offered a place, and Dr Furst noted that the defendant felt that things were going:

“[…] ‘pretty good’, adding, ‘I’m doing what I need to do…I relate to some of the things in the modules…I’m pumping out the work’.”

95. The VOTP generally runs for about 10 months, meaning that, at the time of Dr Furst’s report, the defendant had about 5 to 6 months to go. The defendant told Dr Furst that he has made progress and seen “big changes in himself.” He claimed he had been “too embarrassed” and “too ashamed” in his earlier period in custody. He told Dr Furst, “I now feel sorry…I have to prove I’m sorry,” citing his participation in educational courses and therapy, including VOTP, as his way of achieving this. The defendant acknowledged his history of anger problems and told Dr Furst that he no longer had any anger issues. He also told Dr Furst that he no longer had any attraction to crime, expressed a desire to work, and believed he would be able to comply with any ESO conditions.

96. Dr Furst concluded that the defendant meets the diagnostic criteria for a personality disorder, a substance use disorder and ADHD. Dr Furst believed that the defendant is burdened by a problem of dependence upon a prescription drug which is “completely unresolved”, the defendant having continued to use non-prescribed opiates in custody over the last 13 years, namely buprenorphine. He believes that the defendant’s continuing drug use poses a potential problem:

“not only in a generic but also in a specific sense, in terms of disinhibition when intoxicated, as well as exposure to further negative influences within the drug milieu”.

97. Dr Furst also noted that for the past 13 years, the defendant has been unable to interact sexually with a woman by virtue of his incarceration, and that “very little therapeutic progress” has been made to address the underlying issues that existed when he was an adolescent. Dr Furst concluded that “there is a real risk that they remain.”

98. Dr Furst generally concurred with the results of the risk assessment conducted by Dr Parker with respect to the defendant, with Dr Parker’s assessments determining that the defendant fell within the high range of risk for future sexual offending, violent offending, and general recidivism.

99. It was also Dr Furst’s conclusion that the defendant poses a high risk of committing a future sexual offence, a high risk of committing a future violent offence, and a high risk of general recidivism. He identified the relevant risk factors, including: a history of childhood abuse and neglect; a childhood conduct disorder; an early entry into criminal offending; previous sexual offending in 2013 and 2016 involving “stranger” victims and the use of a weapon and violence; a lack of insight into the motivations for his offending; pro-criminal peers and associates; substance abuse and dependence; an antisocial personality and antisocial attitudes; a sense of entitlement; a lack of experience of living in the community as an adult; a lack of community support; and lack of employment experience outside of custody-based work programmes.

100. Dr Furst did not believe that the defendant’s risk factors are likely to change significantly in the foreseeable future.

97. Given these factors and the defendant’s psychiatric profile, Dr Furst concluded that management in the community without any supervision order in place would “place the community at unacceptable risk of him committing a further serious offence, either violent and/or sexual in nature”.

98. He noted that the defendant is currently engaged in the VOTP where he is making reasonable progress, but that he has several months until he can complete it. If released into the community, Dr Furst noted that the chances of the defendant completing the VOTP would be far lower: the programme modules are unlikely to be available in the community at a similar intensity; there would be a higher risk that the defendant would not attend sessions; and a higher risk of him using drugs in the community, and particularly opiate drugs.

99. It was Dr Furst’s recommendation that the defendant be detained for a further period of 12 months, in order to allow him to complete the VOTP prior to release.

100. He recommended that management of the defendant should include participation in the VOTP and, in the community, in VOTP maintenance and/or HISOP maintenance through the Forensic Psychology Services; referral to specialised drug and alcohol treatment services, most likely with the prescription of buprenorphine or methadone for his opiate dependence; the involvement of a general practitioner; and a referral to a clinical psychologist with respect to future support and treatment of any adjustment issues after a period of over 14 years in custody.

101. The second of the Court appointed experts was Patrick Sheehan, forensic psychologist. Mr Sheehan both provided a report dated 17 April 2020 and gave oral evidence (via audio-visual link) at the hearing of the matter on 21 May 2020.

102. Mr Sheehan conducted a psychological assessment of the defendant at the MSPC on 13 April 2020, over about two hours. He was fully briefed with all relevant documentary material. Mr Sheehan found the defendant to be approachable and co-operative during the interview. There was no evidence of cognitive impairment and he demonstrated linear thought and concentration throughout. He showed partial insight into his situation, providing circumstantial accounts of his behaviour while understating the extent of his behavioural problems.

103. Mr Sheehan took a personal history from the defendant. He recorded that he was of Aboriginal and Turkish decent, the sixth of eight siblings raised by his mother and, while he lacked conscious memories of his father, he was aware that his father died by shooting himself with a shotgun in front of the family when he was aged two or three years old. His step-father joined the family when the defendant was seven or eight years old; this was a positive bond until the relationship between his mother and her partner broke down when he was fifteen years old.

104. The defendant reported a troubled educational experience, noting persistent behavioural problems, episodes of violence, inattention, literacy deficits and frequent expulsions coupled with poor attendance. He gave a history of completing year 10 and some occupational courses, as recorded elsewhere.

105. The defendant has never been employed in the community. Parole reports describe his institutional employment as “sporadic”, noting two dismissals. He stated that he intends to work in the community with several family members and existing community contacts have offered him employment.

106. The defendant has an extended “history of social maladjustment, with early immersion in antisocial culture and aggressive interpersonal conflict”. Having viewed his uncle as “respected, dominant, feared, fearless and wealthy”, he both admired and took direction from him; resulting in serious drug use and participation in violent crime. As a result of repeatedly witnessing his uncle “paying people off”, he “developed a transactional understanding of relationships”, having “described a set of expectations and social rules that would be considered well outside the norms of the broader community”. As his development from childhood to adulthood occurred in custody “with an exclusively antisocial milieu”, his antisocial beliefs further solidified during this time. Notably, “his behavioural codes are not bound by conventional rules”, rather “underpinned by a perceived need to never display weakness or back down”, via means of aggression.

107. Due to the young age at which the defendant entered custody, he has never married and has no children, but expressed a desire to do so in the future. He reported a limited history of intimate partner relationships and has never lived with a partner. As a youth he followed the example set by his uncle: a polygamous life devoid of emotional intimacy but abundant in “exploitative/transactional attitudes towards women”.

108. The defendant denied any experiences of childhood sexual abuse, having reported learning about sex from his uncle, “who showed him pornography and promoted interpersonal sex”. He has been sexually active from 13 years; the same age at which he committed his first sexual offences. He reported that he regularly attended brothels from the age of 15 years and estimated a total of 40 to 50 sexual partners from the age of 13 to 16 years; half with sex workers and reported group sexual encounters.

109. The defendant has a significant history of substance abuse having commenced cannabis use from 13 years of age. He consumed alcohol in a binge-drinking pattern and began smoking methylamphetamine from 15 or 16 years of age.

110. The defendant reported a childhood diagnosis of ADHD, related to a severe conduct disorder and some “paranoid ideation” in maximum security settings, commonly associated with “highly antisocial men”.

111. Mr Sheehan reported that the defendant has “a pattern of reactive anger”, sometimes expressed through aggression. Further, that his history is consistent with an Antisocial Personality Disorder, coupled with an early conduct disorder and a pervasive pattern of disregard for and violation of the rights of others; “a failure to conform to social norms, deceitfulness, impulsivity, aggressiveness, recklessness, irresponsibility, and low remorse”. Mr Sheehan opined the defendant’s “antisocial personality characteristics are at the higher end of severity” and “the main source of his maladjustment”.

112. Mr Sheehan found no evidence of intellectual impairment.

113. Mr Sheehan detailed the defendant’s offending history. He found the defendant’s account of his motivation “unconvincing” while he showed improvement in expressing empathy he still appeared “perplexed when asked to identify with the experience of other people”.

114. As to the defendant’s conduct in custody, Mr Sheehan referred to reports that the defendant had attempted to organise an attack on the victim of the 2007 offences by telephoning his mother and asking her to co-ordinate it; reports of institutional violence; his refusal to engage in programmes; numerous internal misconduct charges; regression from minimum security to maximum security; trafficking drugs into the South Coast Correctional Centre; and being in possession of goal made weapons.

115. At the time of this report, he was classified medium security.

116. Mr Sheehan detailed the defendant’s poor supervision history, with unsatisfactory performance, repeated failure to attend appointments, lack of engagement, repeated detention, and breaches. While the defendant expressed a desire to fully participate with supervision, he continued to “place caveats on what he would accept”. He regarded it as “unreasonable”, for example, for his supervisors to place limits on the persons visiting his residence in the community.

117. Mr Sheehan noted the same record of poor response from the defendant to custody based therapeutic programmes as had Dr Furst.

118. The defendant has a “history of denial and extreme minimisation of offences”, having provided only partial credible accounts of his offending, devoid of any acknowledgement of sexual motivation. Although he has not explicitly expressed attitudes condoning sexual violence, he “reported a misogynist framework for interacting with females during his development”.

119. Mr Sheehan examined the defendant against a screening measure of psychopathic personality with a number of traits found to be present: “superficial, deceitful, lacks remorse, lacks empathy, adolescent antisocial behaviour, adult antisocial behaviour, irresponsible, lacks goals, doesn’t accept responsibility, impulsive”. He regarded the defendant as meeting criteria for psychopathic personality.

120. According to Mr Sheehan, the defendant has serious problems with intimate relationships and, notably, “serious problems with non-intimate relationships via aggressive conflict and identification with antisocial peers” remain present. He has a “history of persistent, frequent and diverse criminality, with his institutional behaviour also inferring the type of behaviours that would be grounds for arrest (violence, theft, illicit drug use, rule violation)”.

121. Mr Sheehan reported that in “the absence of prosocial plans and goals”, the defendant has serious problems with planning and a tendency “to live spontaneously from moment to moment”. While he has been exposed to a significant level of psychotherapeutic intervention covering sex offending and substance abuse, the defendant has demonstrated “poor ability to persevere or apply any insight gained”. While currently engaged in a suitably intensive violence program, the extent the defendant can translate treatment gains to real life remains unknown. Mr Sheehan reported that the defendant has serious problems with supervision, evidenced through a history of breaches of supervision, in the community or in an institution.

122. The defendant has a significant history of non-sexual violence.

123. Applying the Violence Risk Scale (“VRS”), Mr Sheehan found that the defendant’s “lifestyle when in the community could be considered to be a violent lifestyle” and “there is evidence that this has continued to a lesser degree in custody”. He displays a criminal personality, demonstrating glibness, superficiality, low remorse or empathy, shallow emotionality, and dishonesty. He also exhibits criminal attitudes and appears anchored by a criminal code; he has repeatedly sought ways to circumvent rules in custody and his criminal attitudes have justified violent behaviour as necessary. The defendant “is deeply immersed with criminal peers through institutionalisation”. Interpersonal aggression has remained a part of the defendant’s approach to life since his early development. Drug use has been the dominant factor of his life in custody.

124. The defendant has poor emotional regulation, it being a common feature in episodes of violence behaviour. Anger management problems have been reported. Mr Sheehan noted “his aggression has also been often instrumental, as a means to achieve a certain end”. The defendant has a record of institutional violence, possessing blades, fighting, threatening others, and attempting to stand over them. He has a history of using weapons.

125. Mr Sheehan reports that at present the defendant has little insight into his violent behaviour, “providing circumstantial and distorted reasons for his actions”. He lacks a sense of “how far his behaviour and beliefs have strayed from what is considered acceptable”.

126. The defendant’s history of violence is linked to substance use through both direct means (being substance affected at the time of violence) and indirect means (through drug related violent offending). However, Mr Sheehan believes that substance abuse is not necessarily a pre-requisite for the defendant’s aggression. His impulsive behaviour is noted.

127. In Mr Sheehan’s view, the defendant “does not have sufficient community support in the absence of intensive supervision” and “has not engaged sufficiently with parole to actively plan to develop adequate supports, becoming frustrated and opting to serve his parole period in custody”. Release from a medium security setting, whilst managing drug dependency, with no active supervision, would have been a very high risk situation for the defendant in Mr Sheehan’s opinion.

128. Until recently, the defendant has refused to cooperate with supervision and, while he expressed an intention to comply in future, “he is yet to demonstrate that he can work within externally imposed rules for any significant length of time”.

129. The defendant has “upheld distorted views surrounding violence and other exploitative behaviour, with these distortions best viewed as part of an antisocial framework”. In conversation, “he continues to reframe situations and behaviours to reduce his sense of culpability”.

130. Overall, review of the defendant against known dynamic risk factors for sexual offending “reveals the presence of a range of factors, mostly pertaining to his antisocial personality orientation, poor social adjustment, aggression, and manageability problems”; factors which have persisted over time. The strength of the risk assessment is weakened by the need to project the defendant’s sexual behaviour as a youth to his adult self as a 30-year old man. However, the type of sexual offences committed by the defendant were adult-type offences, outwardly aggressive, with none of the naivety or boundary confusion that can be evident in juvenile offending.

131. Ultimately, the evidence led Mr Sheehan to estimate the defendant’s “overall risk of sexual offending to be in the moderate to high range”. The type of sexual offending that the defendant is at risk of are “spontaneous penetrative offences against adult female strangers, possibly occurring in the process of robbery, at a time when the victims are under his control” with a likelihood of brandishing a weapon.

132. Mr Sheehan assessed the defendant as being in the high risk category for violence. Like the risk of sexual offending, the “risk of violence is embedded in his antisocial personality structure”. The defendant’s low empathy and limited fear of consequences have the effect of disinhibiting aggressive impulses. Drug use is a further disinhibitor, and is also strongly associated with risk by generating motivation for crime where violence could be employed. Mr Sheehan opined the defendant is “at high risk of engaging in interpersonal aggression within a relatively brief timeframe in community settings”. The likely use of weapons “means that the prospect serious harm could not be discounted”.

133. If the defendant were to be supervised in the community, Mr Sheehan regarded most of the proposed conditions useful in contributing to lessening the risk that the defendant would commit a serious offence of either a sexual or violent nature. He believed the conditions were adequate to manage the risk of a serious sex offence insofar as “they will contribute to lowering the risk relative to the absence of supervision”. However, he noted that “the ESO conditions, however intensive, cannot hope to extinguish the risk of a serious offence” and believed the conditions should go towards managing the background dynamic risk factors related to offending through seeking to control substance use, associations, and activities associated with increased risk of crime.

134. Significantly, Mr Sheehan anticipated that the defendant would breach the conditions of any order, and possibly be subject to arrest and imprisonment. He thought that episodes of arrest would serve the purpose of interrupting an escalation of problematic behaviour, where the defendant would make “cascading poor decisions” leading to the prospect of serious offending.

135. Mr Sheehan believed that:

“there would be positive rehabilitative value in the defendant completing the current intensive VOTP program in custody as this would go towards the second limb of the Act and would also better prepare him for release in the event that he successfully completes the program”.

140. He did not consider further detention as necessary, noting the defendant could continue treatment in a community setting as provided by VOTP Outreach, albeit at a less intensive level.

141. Mr Sheehan’s conclusion is that the defendant:

“has a relatively severe personality disorder of an antisocial type, predisposing him to rule violation, exploitative behaviour, lack of empathy, aggression, impulsivity, recklessness, irresponsibility and being unable to adjust his behaviour in response to sanction”.

142. These features have continued to undermine his progress in custody and generate a risk of the commission of a serious offence. Mr Sheehan opined that the defendant “presents a moderate to high risk of a serious offence through sexual offending” that would be unable to be managed in the absence of an order under the Act with his behaviour rapidly unravelling upon unsupervised release. Whilst Mr Sheehan noted advantage in the defendant completing his current treatment programme, he believed the defendant’s “risk of a serious offence could be managed under an extended supervision order”. Were an extended supervision order imposed, “the chronic and enduring nature of the defendant personality disorder” would in his opinion suggest that “a timeframe at the upper end of the five year range would be appropriate”.

143. In his oral evidence Mr Sheehan confirmed that "Mr AA would attract a diagnosis of substance abuse disorder, moderate in early remission in a controlled environment". That remission is at considerable risk if the defendant is released into the community.

144. He thought it was very likely that the defendant would breach any supervision order. He did not believe that the defendant would be dissuaded by the threat of the consequences of any breach, or by the fact of periods of arrest and incarceration, although he did not conclude those factors would have no effect upon him. A stable home environment, employment, continuing to engage in treatment, and strict controls on associates would all be positive features, although “living by the schedule” would be challenging.

145. Mr Sheehan confirmed that the proposed ESO conditions may assist in decreasing the defendant’s risk of relapse. However, he observed that it would be significant if the defendant were to complete the VOTP in custody:

“because it represents something he has never been able to do before, he has had a lot of starts in intensive programs that may have been a segue to changing the trajectory of his behaviour and he has been unable to complete any of them so if he could get through this program that is significant”.

146. Mr Sheehan said that the defendant “is in the high risk of breaching his order” even if he completed the VOTP in custody, but regarded it as adding “some confidence that he could be capable of lasting longer periods without making mistakes”.

Recent Events

147. In her second affidavit, of 14 May 2020, Ms Nichols produced copies of progress notes relating to the defendant’s admission to and progress within the VOTP. The following is drawn from the notes.

148. The defendant was admitted to the VOTP on 10 October 2019. He attended his first group meeting a week later. By 30 October 2019, the defendant was expressing his dissatisfaction with what he perceived to be the delay in assessments taking place. Noting that other prisoners had waited some months, the defendant said he “wouldn’t be doing that”. The CSNSW officer who spoke with him thought that this demonstrated his attitude of entitlement, or perhaps simply his awareness of “his HRO status”.

149. The following day, the defendant was advised at a group meeting that assessments would begin in the next week. However, when the psychologist who was to conduct the assessments tried to see the defendant a few days later, he refused the contact, as it was “too late in the day”. When he did see the psychologist, he said that he had been about to have a shower when refusing to see the assessor.

150. Into November 2019 the defendant was observed to engage well with the process and be forthcoming with information, but to show problems with “perspective taking”, that is, the ability to look at things from another person’s perspective.

147. A prison offence was committed by the defendant on 13 November 2019, the possession of an iPhone accessory. When questioned about the offence by VOTP staff the defendant denied knowledge of the nature of the object, something the officer regarded as “evidence of diminished responsibility” (VOTP notes, p 2 of 28). He later expressed irritation at the charge brought against him, saying there was no point in staying with the VOTP if “this shit” continued. The defendant was placed on a two week support plan as a consequence of the infraction, with VOTP assessments paused for that period.

148. Late in November 2019, a VOTP psychologist discussed the defendant’s drug use with him. He acknowledged having used drugs heavily in the community, a pattern continued when in custody through the use of buprenorphine. He said he used the drug both because he enjoyed it, and because it helped him manage headaches. He denied any recent use of the drug, and but could not explain the dilution of a recent urine sample obtained from him.

149. Some non-attendance at group meetings was noted.

150. On 4 December 2019, when a psychologist was discussing his offending behaviour with him, the defendant claimed to have no knowledge of prior sexual offences, insisting that his prior convictions were for armed robbery and murder. When asked about it later the same day, he acknowledged the commission of the index sexual offences. In subsequent interviews, he continued to deny any knowledge of the sexual offences he committed at age 13 years.

151. On 12 December 2019, the defendant told a psychologist that a recent urinalysis would be positive (as it proved to be), as he had used buprenorphine. He continued to insist that he knew nothing about sexual convictions from offences committed at 13 years. A few days later, he admitted to continuing use of buprenorphine since commencing the VOTP, though reduced.

152. Because of the positive urinalysis from mid-December 2019, the defendant was made subject to a “therapeutic commitment” in mid-January 2020. His response was reported to be positive – he accepted the necessity of it, and did not attempt to minimise responsibility for continued drug use.

153. Throughout meetings in January, the defendant was generally engaged, and showed some evidence of insight on occasion. There were instances in February when he appeared frustrated with the programme and dismissive of it (for example, on 19 February 2020). In a presentation that the defendant gave to the VOTP group on 20 February 2020, he expressed views that endorsed violent behaviour and drug use, and were regarded as “evidence of cognitive distortion”, “evidence of criminal attitudes” and “evidence of unhelpful attitudes towards women” (VOTP notes, p 13-14 of 28).

154. His involvement at group meetings during January, February and March 2020 was inconsistent, on some occasions listening and contributing, on others being disruptive and aggressive. Group meetings were cancelled in mid-March 2020, as one of the measures adopted by CSNSW to minimise the incidence of COVID-19 infection. Individual discussions with a psychologist continued.

155. On 9 April 2020, the defendant gave a presentation to two psychologists concerning his offending past. He was hesitant in providing detail about his sexual offences, and appeared to be emotionally detached. He “made several comments which were indicative of victim blaming” and “justified the use of violence” (VOTP notes, p 20 of 28,). He expressed no regret or remorse for his offences, and displayed no empathy for the victims. Some of his comments conveyed “an inflated view of himself”, and he expressed pride in what he perceived to be his reputation as a consequence of his use of violence (ibid). He spoke positively of his uncle for his criminal prowess, although said he neither had nor wanted contact with him. He continued to express a positive view of violence, and a preparedness to go about armed, a knife being his weapon of choice.

156. Of his most recent sexual victim, the defendant appeared to blame her for not “putting up a fight” and instead doing as he told her to do. He did, however, acknowledge that she would have been fearful.

157. His presentation in consultations with staff psychologists in April was, as in previous months, inconsistent. He continued to express favourable views concerning the use of violence, and a criminal lifestyle, with occasional flashes of insight into his behaviour.

The Defendant’s Case

162. The defendant read and relied upon the affidavits of five people; Valerie A, Gemma Fay Sharpe, Jason Robertson, Kristy A and Ahmad Akmal.

163. In her affidavit of 20 February 2020, Ms Valerie A, the defendant’s mother, noted that she has a toxic brain injury. She lives in a two-bedroom unit that was arranged through the Department of Housing. Occasionally, her two other sons stay with her on the weekends, sleeping in the lounge room. Other than the occasional visit, no one else stays at Valerie A’s home.

164. She stated that the defendant used to live with her when he was young and that he was “a good kid”. She stated that she really wanted him “back home with me”. Valerie A acknowledged that the defendant would probably be subject to various conditions upon release, and that these could impact on her, however she was happy for that to occur, and stated that she would help him in any way to follow the conditions, to “keep him on the right track and ensure that he attends all appointments he is required to”.

165. In her affidavit of 15 May 2020, Ms Sharpe briefly detailed her relationship with the defendant; from meeting when they were 15 years old and dated for about 11 months; to recently, having spoken “almost every day” for the last two years. She acknowledged the existence of the application by the State for the defendant’s continued detention and understood that, if released, he will have a lot of conditions to follow. She offered to provide “whatever support I can when he is released from gaol”. Ms Sharpe stated that she is willing to teach the defendant to drive, and help by taking him to some of his supervision appointments, doctor’s appointments, treatment programmes and courses.

166. In his affidavit of 16 May 2020, Mr Robertson identified himself as the defendant’s step-father. He noted that over the years, he has spoken to the defendant when he calls him from gaol, but did not speak to him “that often” due to his own work commitments. He stated that he will help the defendant in any way to make sure he “follows his conditions and stays on track”, and that he could drive him to some of his appointments.

167. In her affidavit of 15 May 2020, Ms Kristy A identified herself as the defendant’s younger sister. She stated that the defendant regularly called her from gaol, and acknowledged that the defendant wanted to live with their mum when he is released. Kristy A stated that she would visit the defendant at their mother’s place to check on him and help take him to appointments. She understood that he would have conditions to follow upon release, and stated that she will help him “in any way I can to make sure he follows all the conditions so that he does not end up in gaol again”.

168. In his affidavit of 15 May 2020, Mr Akmal identified himself as Kristy A’s partner. He acknowledged the defendant’s pending release date from custody, and that he would have various conditions to follow upon release. Mr Akmal has his driver’s licence and offered to help drive the defendant to some of his appointments. He also stated that he has friends who work in building and construction, and that he believed that he could help the defendant secure employment with them.

Consideration

169. The overwhelming weight of the evidence before the Court points to the high risk that the defendant poses in the community to others. Indeed, there is no dispute about that, with the defendant conceding that he poses an unacceptable risk in the community such that the Court would be satisfied that his extended supervision is necessary to mitigate that risk.

170. The only issue is whether supervision is sufficient to adequately address that risk, or whether a detention order is necessary.

171. Persuasive to my conclusion that supervision was not sufficient was the evidence relating to the defendant’s entrenched and long standing drug dependence, the brevity of and circumstances surrounding his recent abstinence from drug use, and his overall attitude of persistent disregard for reasonable behavioural obligations imposed upon him over many years.

172. It is not necessary to dwell upon the terrible nature of the defendant’s crimes, or upon the limited or absent insight into his criminality that the defendant has. These features form the necessary background against which the evidence falls to be considered and inform the assessment of the risk posed by the defendant. That he has not lived a law-abiding life in the community since he was 12 or 13 years old, and continues as a man of 30 to endorse many of the attitudes that led to that lifestyle, is a significant consideration.

173. The evidence of the defendant’s past life points to an individual with an enduring antisocial personality disorder, and deeply entrenched attitudes consistent with a criminal lifestyle, and where violence and drug use is the norm. It tells, broadly, against release until such time as the defendant has addressed at least some of those issues. At present, the defendant has done little to address his attitudes or drug use.

174. It is accepted that the defendant has remained abstinent from illicit drug use for some months now, and he is to be praised for that effort. However, on the evidence, the period of abstinence is likely to be closer to three or four months than the six months claimed by his counsel, bearing in mind the CSNSW documentary record, which notes recent drug use affecting the defendant’s access to the VOTP. It seems that the defendant ceased using buprenorphine around February or March 2020; it may or may not be significant that the flow of illegal drugs into the prison system was much reduced at about that time, due to the “lockdown” imposed on the prison system to prevent COVID-19 from entering it. Personal visits to prisoners ceased about three months ago, and that avenue of smuggling drugs into prison also ceased.

175. The defendant’s abstinence thus corresponds broadly to a time of decreased availability of illicit drugs in prisons. That is not to detract from his achievement, but it perhaps puts into perspective the magnitude of the challenge he faces in remaining drug free if in the community, where a smorgasbord of illicit drugs is available to those who wish to access them. A period of only a few months restraint from drug use in the overall context of decades of criminality cannot be regarded as conclusive of a diminution of risk.

176. There is some prospect that he might successfully complete the VOTP if further detained, and risk diminished by that means.

177. Both Dr Furst and Ms Matsuo are of the opinion that the risk posed by the defendant to the community if released to it may be mitigated if he first completes the VOTP, thus being eligible for the intensive VOTP Outreach upon release. Whilst Mr Sheehan regards a supervision order as adequate, that appears to be on the basis that the defendant will breach an ESO, and the consequential periodic prosecution of him, and his likely imprisonment, will operate as a brake on any descent into serious criminality. Section 17(5) of the Act precludes the Court from having regard to potential breach action when considering whether a CDO should be imposed. Mr Sheehan also understood that the defendant would be able to access VOTP Outreach in the community. In fact, as Ms Matsuo’s evidence makes clear, he would not be able to do so without having first completed VOTP in custody. There is no similarly intensive programme available in the community.

178. On the expert evidence, the risk posed by the defendant if released from custody with no supervision is high. The nature of the risk must be borne in mind – that the defendant would again take and sexually assault a woman, as must the catastrophic nature of the consequences for that woman were the risk to manifest. That is a risk that the Court must endeavour to guard against. In my view, the only realistic way of doing that on the present evidence is to detain the defendant.

179. In her RMR, Ms Kirkwood noted that there were limitations to all of the proposed strategies to manage the defendant’s risk in the community, including the all too likely limitation that the defendant would simply refuse to co-operate with supervision. No community based supervisory regime can maintain constant vigilance against the defendant returning to drug use and violent offending. It is clear that contact between the defendant and his supervisors would be regular, with some unannounced contact in the mix, but it would be unlikely to have the sort of frequency that appears indicated on the evidence. If nothing else, resources prevent a high level of contact.

180. In the community, the defendant would return to live with family. Whilst I don’t doubt Valerie A’s willingness to assist her son, she has a toxic brain injury, and there is no evidence before the Court as to her capacity to provide an appropriate level of support. In the past, she has directly supported his criminality, by co-operating, at least ostensibly, with his plan to intimidate a witness, the victim of a sexual assault committed by the defendant. The defendant has already told CSNSW staff that he regards it as unreasonable for any restrictions to be imposed on the visitors to his mother’s house, and whether, for example, those people would use alcohol. One can extrapolate from that a possibility that visitors might well use other intoxicants.

181. With a background of failing to comply with supervision, I am particularly concerned that the defendant will simply disregard it, as he has done in the past, and fail to co-operate with those endeavouring to restrain his conduct in the community. Noting his impulsive personality, it would be the work of an hour to acquire drugs, become intoxicated, and commit the sort of crime the defendant was imprisoned for committing. No supervisory regime can prevent that.

182. Whilst risk can never be eradicated, it can be minimised to the extent possible. Here, that mandates in my view the defendant’s completion of at least one intensive therapeutic course intended to ameliorate his drug use and ready resort to violence, in this instance the VOTP. Completion of that programme would have the added benefit of enabling the defendant to access intensive maintenance in the community upon release adding, in the VOTP Outreach, another layer of oversight of his conduct, and a means to address it.

183. The defendant’s detention would enable him to complete the programme, thus – hopefully – acquiring better insight into his sexual and violent offending, and giving him a chance to demonstrate a more significant period of abstinence from drug use than that of a few months.

184. It would be a terrible thing if the defendant returned to the sort of criminality he exhibited when in the community on the last two occasions. That is a risk that cannot at the present in my conclusion be managed by supervision. Only the defendant’s detention will serve that end, with the additional benefit that he will be able to complete a targeted and intense therapeutic programme which might mean that the community is better protected when he is released.

185. For those reasons, I made the orders sought by the State.

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Decision last updated: 16 December 2022