State of New South Wales v Azar (Preliminary) - [2020] NSWSC 1807

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Azar (Preliminary) [2020] NSWSC 1807
Hearing dates: 7 December 2020
Decision date: 16 December 2020
Jurisdiction: Common Law
Before: Hoeben CJ at CL
Decision:
(1)   An order pursuant to s 7(4) of the Act:
(a)   Appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
(b)   I direct the defendant to attend those examinations.
(2)   An order:
(a)   Pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order commencing on 18 December 2020 (the Interim Supervision Order).
(b)   Pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days; and
(c)   Pursuant to s 11 of the Act, I direct that the defendant for the period of the Interim Supervision Order comply with the conditions set out in the Schedule to this judgment.

Catchwords:
HIGH RISK OFFENDER – mental health issues (schizophrenia) – index offence of manslaughter – offender suffering undiagnosed schizophrenia at time of index offence – defendant granted parole in December 2017 – defendant commenced displaying non-compliant behaviour – increase in aggression directed at family members – parole revoked after six months on the basis of failure to maintain good behaviour – defendant using illicit substances while in gaol – preliminary application for ISO – whether unacceptable risk of committing another serious violence offence – defendant has little insight into his ongoing needs for psychiatric and psychological treatment – dispute as to conditions – ISO made.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Mental Health Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
Attorney General for New South Wales v Tillman [2007] NSWCA 119
AttorneyGeneral for the State of New South Wales v Gallagher [2006] NSWSC 340
Attorney General for the State of New South Wales v Winters [2007] NSWSC 611
Attorney General for the State of NSW v Hayter [2007] NSWSC 983
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCCA 57
State of New South Wales v Boney(Final Hearing) [2020] NSWSC 1375
State of New South Wales v Donovan [2015] NSWSC 1254
State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041
State of New South Wales v Holschier (No 3) [2019] NSWSC 341
State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971
State of New South Wales v Love (Preliminary) [2019] NSWSC 1660
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367
State of NSW v Love [2020] NSWSC 165
State of NSW v Vincent (Preliminary) [2020] NSWSC 1269
The State of NSW v Sharpe [2017] NSWSC 469

Category: Principal judgment
Parties: State of New South Wales – Plaintiff
Daniel Azar – Defendant
Representation:
Counsel:
C Melis – Plaintiff
A Bhasin – Defendant
Solicitors:
Crown Solicitor NSW– Plaintiff
Legal Aid NSW – Defendant

File Number(s): 2020/273731
Publication restriction: An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

JUDGMENT

HIS HONOUR:

Nature of proceedings

By summons filed 17 September 2020 the State of New South Wales (the State) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for the supervision of the defendant for a period of three years from the date of the order and an interim supervision order (ISO) for a period of 28 days from 18 December 2020.

This judgment is directed to the preliminary hearing on the application (by the State) for an ISO. Overall, an ESO is sought on the basis that the defendant requires a period of structured supervision to address his criminogenic needs and ameliorate his risk of committing another serious offence.

Background

The defendant was born in February 1995 and is aged 25. He has four older siblings. He completed year 10 at a behavioural college and thereafter left school to work as a spray painting apprentice. The defendant has a history of substance abuse and mental health issues. He was suffering from undiagnosed schizophrenia at the time of the index offence.
On 14 August 2013, when aged 18, the defendant committed the index offence of manslaughter. This is a serious violence offence under the Act. He was sentenced to 7 years imprisonment with a non-parole period of 4 years, commencing on 19 December 2013 and expiring on 18 December 2017. Although the defendant was released to parole, it was later revoked due to the commission of further offences.
The defendant was returned to custody on charges of:

resist officer in execution of duty;

armed with intent to commit indictable offence;

destroy or damage property;

assault officer in execution of duty; and

destroy or damage property (3 June 2018).

Offences (a)-(d) took place on 13 June 2018.

The circumstances of the offending involved the defendant attempting to attack members of his family. An ADVO (Apprehended Domestic Violence Order) was taken out with his sisters listed as the Persons In Need Of Protection (PINOPs). A non-contact ADVO was also granted with his uncle as the PINOP.
The defendant is presently serving the balance of parole for the index offence (being 2 years 6 months and 5 days). His full sentence is due to expire on 18 December 2020.
The defendant’s relationship with his siblings appears to have improved since the ADVO, as three of the siblings recently moved in together and have requested that the defendant stay with them if he is granted parole to enable them to monitor his mental health and substance use. His parents separated at some stage since his return to custody in 2018.

Criminal history

In addition to the five offences, which took place in June 2018, the defendant has been convicted of the following additional offences:

manslaughter (14 August 2013) (the index offence);

break and enter house and steal (5 July 2013);

possess prohibited drug (22 June 2013);

dishonestly obtain property by deception (3 March 2013); and

possess or use a prohibited weapon without permit (24 February 2013).

The defendant first appeared before the courts when he was aged 18. It can also be seen that the 2013 offences occurred within a six month period leading up to the index offence.

Index offence

The circumstances of the index offence were as follows. On 13 August 2013, the defendant and Mr Mohamed El-Chami were with the victim, Mr Bassem Salameh, inside his apartment. At approximately 8:00pm, Mr Salameh is alleged to have pinched the defendant on the buttocks while he was sleeping. The defendant took this to be a homosexual advance and was extremely angered by it. Mr El-Chami was woken by the defendant’s angry response and the two men left the apartment. According to Mr El-Chami, Mr Salameh had already locked the front door so they had to break and climb out a window.
The defendant and Mr El-Chami met up with Mr Ahmed Kaddour and told him what had happened. At approximately 1:30am on 14 August 2013, the three men returned to Mr Salameh’s apartment. Mr El-Chami left the apartment shortly after the assault commenced and gave evidence that by the time he returned, the victim was mortally wounded. Mr El-Chami saw the defendant holding a hacksaw near the victim’s throat and kicked it out of his hands. He saw Mr Kaddour throw clothes on top of the victim’s body. Mr El-Chami was originally charged with murder, however, he pleaded guilty to concealing a crime and provided evidence that resulted in the conviction of the co-offender, Mr Kaddour.
The defendant ultimately pleaded guilty to facts which identified Mr Kaddour as the main assailant, who beat Mr Salameh to death. The defendant’s role involved assisting in the beating by use of a metal pole, and grazing Mr Salameh’s neck with a hacksaw. The judge found that the defendant was the initiator of the assault.
Mr Salameh died from blunt force injuries to the head. He sustained additional injuries including fractures and lacerations to different parts of his body and head. He suffered broken ribs from being stomped on and a ruptured eye. It was noted that the weapons used to assault Mr Salameh were primarily objects found in the apartment. An unspent bullet was found at the back of the deceased’s throat.
The defendant was initially arrested on 16 August 2013 for questioning and to obtain samples of forensic evidence. At the time, he denied knowledge of the killing. On the following day, he made admissions to his mother and his sisters that he had slit Mr Salameh’s throat, and that he had “put a bullet in his mouth as a love letter”. His family passed on these admissions to the police.
On 20 August 2013, the defendant was charged with murder. After a psychological review, it was generally held that the he was suffering from a schizophrenic illness at the time of the offence. On 9 October 2015, he was found unfit to stand trial, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act), by Wilson J and the matter was referred to the Mental Health Review Tribunal (Tribunal).
The defendant commenced antipsychotic treatment on 22 January 2014 and on 24 March 2016, the Tribunal determined that the defendant was fit to stand trial. A fitness hearing took place before Mathews AJ on 18 April 2016, who found the defendant fit to be tried. The defendant subsequently entered a plea of guilty to the offence of manslaughter (on the basis of his impaired mental health at the time of the offence). On 16 May 2017, he was sentenced. It was noted that he had received appropriate treatment, had ceased taking illicit drugs, and that this had resulted in a “significant improvement in his condition”.
While detained on the murder charge, the defendant was convicted of break and enter and steal contents valued in excess of $60,000. He had committed this offence before entering custody. The offence was unrelated to the manslaughter offence and involved breaking and entering a shop to obtain money and property. He received a 16 month sentence with a non-parole period of 10 months, which commenced on 2 December 2013.

Parole history

On 1 December 2017, the State Parole Authority (Authority) granted the defendant parole, and he was released into the community on 18 December 2017.
The defendant’s response to parole was mixed. Despite some officers claiming a positive response to parole supervision, within three months of his parole order he commenced displaying some non-compliant behaviour. This included missing his psychological appointments, continually seeking out anti-social associates who were involved in drug supply, engaging in behaviour that his supervising officer considered to be glorifying his offending, and becoming increasingly aggressive towards family members and the Prevention Early Intervention and Recovery Service (PEIRS) staff who had been working with him to manage his mental health.
He was placed on electronic monitoring in March 2018. By May 2018, after being on parole for approximately five months, the defendant was involved in a domestic dispute with his cousins. They were listed in his parole conditions as persons with whom he should not associate. For this incident, he received a warning from the Authority for breaching one of his parole conditions. Shortly after having received this warning, the defendant committed new offences by damaging his sister’s car. He engaged in other non-compliant behaviours including entering two exclusion zones on 3 June 2018 with no reasonable explanation and having used methamphetamine on the same day.
On 4 June 2018, the defendant was charged with a count of destroy or damage property (domestic violence), contrary to s 195(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act), after he caused damage to his sister’s car by repeatedly throwing an object against its window.
The facts of that incident were as follows. On 3 June 2018, his girlfriend at the time, Jennifer Hosn, had a verbal altercation with his sister, Amagene Azar, at the family home. Shortly after the argument, the defendant mistakenly approached another sister, Vanessa Azar’s car and threw an object towards the car window twice. This resulted in damage to the car window and rear view mirror.
The Breach of Parole Report, that was completed shortly after this offence, noted that the defendant demonstrated limited insight into his behaviour and projected blame on his family for having cooperated with law enforcement which resulted in his arrest.
On 14 June 2018, the defendant attended his uncle’s residence armed with a knife which he used to damage a screen door, causing his uncle to become fearful. Upon the arrival of police, he resisted arrest and attempted to assault five officers. He was charged with:

stalk/intimidate intending fear of physical harm (domestic), contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW);

assault officer in the execution of his/her duty (domestic violence), contrary to s 58 of the Crimes Act;

resist officer in the execution of his/her duty (domestic violence), contrary to s 58 of the Crimes Act,

common assault (domestic violence), contrary to s 61 of the Crimes Act,

armed with intent to commit an indictable offence contrary to s 114(1)(a) of the Crimes Act; and

destroy or damage property with value of greater than $2000 (domestic violence), contrary to s 195(1)(a) of the Crimes Act.

These offences were committed while the defendant was on bail for Destroy or Damage Property in relation to his sister’s car. The defendant was returned to custody upon arrest, bail refused. The Authority revoked his parole, effective from 14 June 2018 on the basis of his failure to maintain good behaviour.
During his interview with the author of the Risk Assessment Report (RAR), Ms Lau, the defendant described how he had experienced significant difficulty coping with stress from conflict between family members, particularly between his parents, leading up to these offences. He admitted that this contributed to his relapse to illicit substance use. He claimed that the knife he used to damage his uncle’s front door was obtained from the kitchen of his family home. The RAR noted that similar to his understanding of the manslaughter offence, the defendant denied any association between his mental health deterioration and these offences. The defendant’s refusal to accept that he has mental health issues which require treatment, has been a continuing problem.
On 13 December 2018, the defendant was sentenced for all of the above offences. He received a sentence of 1 year and 13 days commencing on 11 June 2018 and concluding on 23 June 2019. The non-parole period of 6 months and 13 days concluded on 23 December 2018. The Authority considered his case on 17 January 2019, and determined that the Revocation Order dated 14 June 2018 was to stand.
The Authority made a further determination on 1 May 2020 not to grant the defendant parole primarily on the basis that he had not completed the Violent Offenders Therapeutic Program (VOTP) while in custody. The Authority determined that until he completed the VOTP, his release would pose an unacceptable risk to the safety of the members of the community.
On 17 September 2020, the defendant was transferred to a correctional centre from Long Bay Hospital. On 21 October 2020, he was scheduled to the Long Bay Hospital for assessment and consideration of treatment with an injectable antipsychotic. A treating psychiatrist, Dr Morgans, reported:

“He has an elevated risk of future violence. Mr Azar is minimally accepting medication. He reported he will accept an oral medication but refuses to accept an injectable form. His violence risk assessment identifies that he has at high risk of violent offending. In my opinion, Mr Azar requires transfer to a declared mental health facility (LBH) under the MHA for injectable medication treatment and an ongoing FCTO. In my opinion, Mr Azar has a history of non-adherence with treatment and evidence of deterioration in mental state. He requires an FCTO. He is non-compliant with his injectable medications. I find him a mentally ill person with regard to his continuing condition.”

An order was made for the transfer of the defendant to a mental health facility on 21 October 2020.
The defendant’s classification was changed from B Medium to A2 Maximum Security on 27 October 2020. On 11 November 2020, the Tribunal determined that the defendant should be transferred to a mental health facility. The order for the defendant’s transfer of 21 October 2020 was revoked on 27 November 2020. It was reported that the defendant was prepared to accept depot antipsychotic treatment. His mental state was stable at that time.

Mental health and substance use

The defendant has a history of substance abuse and mental health issues. He began using illicit substances when aged 14 or 15, taking large quantities of cannabis on a daily basis, as well as smoking methamphetamine and taking Xanax. This appears to coincide with his self-report of when he first experienced hearing voices and when significant behavioural changes were observed in him by his family. He reported that these symptoms were disruptive to his daily functioning before the commission of the index offence. However, he was only diagnosed with a mental illness after he committed the index offence when he came into custody.
During his interview with the RAR writer, he denied any illicit drug use in custody. However, he had previously reported using cocaine while on remand. He had also previously admitted that while on parole for the index offence, he would use heroin/ice about once a month. He yielded positive results from three urinalysis testings during his current period of incarceration, with the most recent sample obtained in February 2020. It tested positive for methylamphetamine and buprenorphine.
The defendant was suffering from undiagnosed schizophrenia at the time of the index offence. He denied being in contact with mental health services before entering custody. Shortly before his incarceration on 4 April 2013, the defendant presented to the Emergency Department involuntarily under the Mental Health Act 2007 (NSW) for a self-inflicted injury.
In her psychiatric report, dated 23 June 2016, Dr Kerri Eagle set out collateral information from NSW Health clinical records which describe the circumstances that led to this incident:

“According to a Section 20 MH assessment request dated 4 April 2013 pursuant to the Mental Health Act 2007, Mr Azar was brought to the hospital involuntarily under that Act because he was reported having had a “fight with his mother, became instantly irrational, used a large kitchen knife to cut finger, then kept three large knives on his person until he was detained by police, pt appears upset with himself saying he owes money and has failed, pt states hearing voices also pt stating he wants to kill himself, pt thought patterns very unorganised, speech is irratic (sic) and easily changes topic unable to stay focused, irrational and agitated”.

Before the index offence, the defendant’s family reported that he had a paranoid belief that he was going to be killed and that his mother had a microphone connected to the car. In the days following the offence, he threatened to kill himself.

According to his history of mental health assessments in custody as summarised in Dr Stephen Allnutt’s report in October 2015, it appears that the defendant was difficult to engage with in his contacts with mental health professionals during the initial period of his incarceration. He reported different symptoms when he was assessed by different psychiatrists. It appears that this may have contributed to the different diagnoses which were made concerning his mental health problems.
The defendant was treated for psychosis in January 2014 during an admission to the Mental Health Screening Unit (MHSU). At this time, his symptoms were characterised by persecutory and religious delusions, auditory hallucinations, thought disorder and agitation. In February 2014, he made threats of self-harm and was placed on a RIT (a process of review by the corrective centre’s Risk Intervention Team). On 28 October 2015, the defendant was transferred to a mental health facility on the basis that he was a mentally ill person under s 55(3) of the MHFP Act. He was again observed to be experiencing persecutory delusions, and presented as guarded and agitated. On 12 November 2015, he was transferred to E Ward, which was the sub-acute unit of Long Bay Hospital.
Dr Sharma’s report of 14 March 2016, noted that the defendant’s symptoms and presentation had improved. By 24 March 2016, he was assessed as fit to be tried for his offence.
Soon after he was released on parole, Dr Anthony Harris began seeing the defendant through PEIRS. In a letter dated 6 March 2018, Dr Harris stated that the defendant had been offended in one of their sessions and had threatened both Dr Harris and his PEIRS case manager, Conrad Netto. He also reportedly made violent threats towards his family to deter his mental health supports from contacting them. In a separate report from Mr Netto in March 2018, it was noted that although the defendant was compliant with his depot treatment for schizophrenia, he was difficult to engage with in sessions and expressed a desire to cease his medication. The same report also commented that the defendant lacked insight into the importance of medication despite receiving psychoeducation. It was during this same period that his mental health supports received information to suggest that the defendant had become increasingly aggressive and threatening, especially toward his family.
After breaching his parole by committing new offences and being returned to custody, the defendant was assessed by Dr Gerald Chew. In his report dated 4 October 2018, Dr Chew opined that the defendant was suffering from a relapse of illness at the time of the new offences due to medication change coupled with illicit drug use.
The Offender Integrated Management System (OIMS) notes show that the defendant’s mental health had not remained stable during his time in custody. On 10 April 2019, his treating psychologist made an application for a Forensic Community Treatment Order (FCTO) under s 67 of the MHFP Act on the basis of the defendant’s history of medication non-adherence and a subsequent mental health decline. On 10 May 2019, a hearing was held before the Tribunal and a 12 month FCTO was made with an expiry date no later than 9 May 2020. It required the defendant to accept any treatment and/or medication prescribed by his treating psychiatrist.
On 30 August 2019, another order was made pursuant to s 55(1) of the MHFP Act that the defendant be transferred to a mental health facility as he was a mentally ill person as defined under s 55(3) of the MHFP Act. The defendant was put on a transfer list, but this order was revoked on 15 November 2019, with directions that he remain in a correctional centre.
Most recently, the defendant was made subject to another FCTO, made on 5 August 2020, for a period of 12 months to expire no later than 4 August 2021. This was after a deterioration in his mental state was observed. It was marked by non-compliance with his anti-psychotic medications, including refusing to take his depot medication and becoming non-compliant with psychiatric review. Psychiatrist, Dr Ma, noted that there had been threats of violence towards a psychiatrist and that the defendant presented with limited insight into his need for treatment and the relationship between his mental illness and violence. Dr Ma further noted that while the defendant was not acutely psychotic, his aggression could be considered a reflection of residual persecutory delusions. The defendant indicated that he had no intention of following up with mental health services upon release. Dr Ma was of the opinion that the defendant required involuntary treatment to reduce his risk of violence in custody.
The defendant was scheduled to Long Bay Hospital on 27 July 2020 for assessment and consideration of treatment with an injectable antipsychotic to ensure adherence. He was at that time awaiting a bed.
He was reviewed by psychiatrists on 4 August 2020, and stated that “I’m giving you a warning shot. If you send me to mental health, one of you f***ing mother-f***ers is gonna [sic] f***ing die”.
A notice to remain at Long Bay Hospital under s 56 of the MHFP Act was issued on 19 August 2020. At that time, Dr Sarah-Jane Spencer noted that the defendant had refused to comply with his FCTO. She was of the opinion that without adequate treatment, the defendant’s mental state would further deteriorate, elevating his risk of causing serious harm to others. Dr Spencer said:

“Mr Azar is agitated, hostile and verbally threatening. He presents as guarded and it is suspected he may be minimizing the presence of any psychotic symptoms. He demonstrates limited insight into the need for continuing treatment and the interplay between his illness and risk of violence.”

The defendant was transferred to Long Bay Hospital on 19 August 2020.
Notes made by Dr Sharma and Dr Jackson on 19 August 2020, record that the defendant expressed anger at being transferred to Long Bay Hospital and did not understand the rationale for taking any medication as he believed himself to be well. He was prepared to take oral medication. He made several violent threats when advised he would be receiving depot medication, e.g., “I’ll punch on with any c**t that tries to give me an injection, I don’t care” and “I’ll kill you all”.

Conduct in custody

From the time that the defendant was first taken into custody on 19 August 2013 until he was released on parole on 1 December 2017, he was the subject of a number of institutional misconduct charges. He received four institutional misconduct notices for fighting or assaulting another person, all of which occurred between 2014 and 2016, and one institutional charge for intimidation. The RAR noted that the defendant was mentally unwell for most of his first incarceration period and only became relatively stable by 2016.
After returning to custody on 14 June 2018 to serve the balance of his parole, the defendant has incurred eight institutional misconduct charges involving failure to comply (both with directions and correctional centre routines), intimidation, possession of a weapon, violence and contraband related offences. He recorded a positive urine sample for buprenorphine on 13 February 2020. He had consistently been charged for unsatisfactory behaviour and has “continuously displayed a belligerent attitude toward Custodial Officers and the custodial environment”.
Before he was made subject to a FCTO, the defendant had followed a pattern of non-compliance regarding his monthly antipsychotic depot injection. Between January and April 2019, he refused his monthly injection and only attended the clinic the following day to receive his injection after persistence from medical staff.

Programs in Custody

The defendant has completed the EQUIPS Addiction program twice and EQUIPS Aggression once in custody. The defendant was reported as having developed some insight into his use of aggression in interpersonal interactions. Despite facilitators of EQUIPS Addiction noting that the defendant developed some self-management plans in respect of illicit drug use, which included maintaining employment and spending time with his family, approximately six months following his release on parole, the defendant had lapsed to methamphetamine use.
Until 13 June 2019, the defendant had refused to participate in VOTP stating that he would rather complete his sentence in custody. However, on 13 June 2019, he stated that he was prepared to participate in the VOTP if it benefited his release and on 1 August 2019 he was inducted into the program.
The RAR noted that the defendant was expected to complete the VOTP before his sentence expiry (i.e., sometime between November and December 2020), however, his expected treatment completion date might be extended due to poor behaviour on his part. The defendant was suspended due to ongoing aggression towards psychologists and Custodial Officers. According to the defendant’s VOTP Support Plan (04/02/2020), in addition to addressing his group attendance and participation, the plan was also developed to address his ongoing ambivalence about completing the program and his difficulties with managing feedback from his program facilitators.
The defendant advised that he was not interested in returning to complete the VOTP because of the close proximity to the expiry of his sentence. He stated that he saw no value in engaging in treatment as he is “going to do what I want and come back to gaol”.
The defendant’s classification has been “B Medium” since his revocation of parole and return to custody. Due to this classification, he has not participated in any pre-release leave programs. As earlier noted, the defendant’s classification was changed to A2 Maximum Security on 27 October 2020.

Risk Assessment Report

The RAR, dated 20 March 2020, was prepared in satisfaction of s 6(3)(b) of the Act, and assessed the defendant as falling in the high risk category for violent offending using the Violence Risk Scale (VRS).
The RAR identified the following dynamic factors as relevant to the defendant’s risk:

“a. Mental disorder/Substance use
The defendant’s past behaviour reveals a pattern of increased violence when he fails to adhere to his treatment plan to manage his mental illness or when his mental health deteriorates as a result of being untreated. When the defendant was released on parole, it appears that similar circumstances led to his violence-related offences against his sister and his uncle’s property. It was noted that he had missed some appointments with his mental health supports, lapsed to drug use and had become increasingly aggressive in his interactions, particularly with his family.
During the interview for the risk assessment, the defendant demonstrated poor insight into his mental illness and expressed an understanding that his psychosis was drug-induced and only a temporary condition. He stated that he currently remains compliant with medication but wishes to eventually cease medication in the community, if he can “make sure that I will be 100%” without medication. The defendant has received psychoeducation on his diagnosis, symptoms and medication but appears to continue to lack insight into his mental illness (C. Netto, 09/03/2018; S. Sharma, 14/03/2016). Given his poor insight, it appears unlikely that he has developed a thorough understanding of the relationship between his mental health and his violence at this stage. This may negatively impact on his motivation to adhere to the long-term management of his mental health and increase his likelihood to lapse to illicit substance use for temporary relief, which can in turn increase his risk of violence.

b. Emotional Control/Impulsivity/Interpersonal Aggression

The defendant appears to experience exaggerated emotional responses that are disproportionate to the stressor, which appears to be due to poor problem-solving and coping. During an interview for the risk assessment, the defendant stated that he felt disrespected by the victim for touching his bottom and cited this to be reason he assaulted the victim.
The defendant reported some improvements in this area, stating that he has developed more appropriate coping strategies to assist him with regulating his emotions. Given there is a lack of evidence to suggest that the defendant engaged in violent outbursts in his recent history in custody, this may be some evidence for behavioural changes. It is noted that improvement in the use of skills to manage difficult emotions was one of the targeted issues in the defendant's VOTP Support Plan (04/02/2020). However, the defendant is not willing to complete the VOTP.

c. Work ethics

The defendant has limited working experience. Some collateral information suggests that his illicit drug use affected his ability to maintain employment but he also lacked motivation in general.
OIMS case note dated 29/08/2017 notes that the defendant was unemployed for an approximate period of six months prior to his incarceration and was a recipient of Youth Allowance.
During an interview for the risk assessment, the defendant acknowledged that he had a limited work history in the community but stated that he is motivated to seek and maintain employment upon his release. He expressed an understanding that this would in turn reduce his risk of lapsing to drug use, therefore assisting him in maintaining a pro-social lifestyle.

d. Weapon use

The defendant had used impromptu weapons in all three of his violence-related offences against properties and a victim, with the offence against a victim resulting in a death. The defendant may hold some attitudes that condone the use of weapons and may be more likely to use a weapon when he is reacting in a heightened emotional state. Intoxication and deterioration in his mental health may negatively impact on his ability to cope and therefore indirectly increase his risk of using a weapon against a person whom he perceives to be causing him distress.

e. Cognitive distortion/insight into violence

The defendant continues to demonstrate difficulty appreciating the consequences of mismanaging his mental health, particularly in relation to his risk. Furthermore, when his insight into general aggression was explored, the defendant demonstrated limited insight into his aggressive behaviour against his family and either minimised his responsibility in having contributed to these conflicts or projected blame on to other family members.
Due to the defendant’s lack of insight into the relationship between his mental illness and past violence, his strategy to manage his mental health appears inadequate. Specifically, he stated that he intends to cease medication at some stage in the future with the assumption that this is a temporary condition. He was also limited in identifying thoughts, feelings and triggers related to past violence and primarily attributed his behaviour to the effects of intoxication from illicit drugs. This is an area that requires further intervention.

f. Violence cycle/anti-social peers

The defendant appears to have a tendency to become overwhelmed by stress due to poor emotion regulation and problem-solving skills. His ability to manage stressors can be further impacted when he is in an intoxicated state and/or when his mental health deteriorates. In the past, when the defendant's mental health deteriorated, either due to being un-medicated or non-compliance with his treatment plan, he distanced himself from his supports and increased his association with anti-social peers. It appears that his supports’ efforts to intervene into his life caused him to feel frustrated and distressed and he therefore distanced himself from them in an attempt to avoid this.
Although the defendant recognises the importance of avoiding association with anti-social peers to reduce his risk of engaging in further violent behaviour, he continues to demonstrate limited insight into his mental illness.

g. Compliance with supervision

The defendant admitted that he responded poorly to supervision, particularly when he did not agree with his supervising officer’s directions. He justified his non-compliance with his mental health treatment plan and expressed the view that staff should have been more accommodating to his needs. Nonetheless, during the interview for this assessment, the defendant stated that if he were to be released under supervision, he would comply with his supervising officer’s directions regardless of whether he appreciated the benefit of it.”

Protective factors

As to protective factors, the defendant described a number of pro-social supports in the community, which included his parents and his siblings. He stated that he had maintained regular contact with them via telephone while in custody and departmental records and collateral information from his sister confirmed the same. His sisters have secured independent accommodation and have offered to have the defendant stay with them in Wentworthville on the condition that he abides by a set of rules that are directed to reducing his risk of returning to an anti-social lifestyle. A OIMS case note, dated 28 February 2020, confirmed that his two sisters and his brother have offered to have the defendant live with them upon his release. The same case note also documented that his sister, Amagene Azar, confirmed that the defendant maintains a close relationship with his siblings and that they continue to have weekly phone contact with him. She expressed a willingness to work closely with Community Corrections to ensure that the defendant complies with his parole conditions, including ensuring that he appropriately manages his mental health and remains abstinent from illicit substance use.
There are currently ADVOs against the defendant for the protection of his ex-partner, Shontelle Condon, and his uncle, Sam Azar, the latter of whom was the victim of the defendant’s most recent violent offence in 2018 (OIMS case note, 31/01/2019). However, both of these current orders would have expired by the end of his current sentence in December 2020. There were previous ADVOs against the defendant to protect his father, and both of his sisters following some family disputes. These orders have since expired.
If approved by Community Corrections, the RAR writer is of the opinion that the defendant’s nominated post-release address with his sisters may be beneficial in mediating his risk of returning to a similar life as before his incarceration. Collateral information confirmed that the defendant’s sisters currently reside in an area that is some distance from where all three of his violence-related offences were committed and where he used to associate with anti-social peers.

Risk scenario

The RAR identified the most likely risk scenario for further violent offending as follows:

“Based on Mr Azar’s history of offending, if he were to fail to adhere to the ongoing management of his mental illness, he may struggle to cope with daily stressors and lapse to illicit drug use for temporary relief. By the stage that he has disengaged with all mental health supports or treatment, he may become reliant on illicit substances to manage his mental health symptoms, which is likely to cause contrary effects. Whilst in this state, Mr Azar may be less likely to recognise that he is becoming aggressive in his interactions with others and be further impaired in his ability to manage his behaviour. This may elevate his risk of being disproportionately reactive to minor stressors. Depending on his access to weapons or items that can be used as impromptu weapons, the effects of peer influence, and his immediate access to the perceived source of his frustration, there is a possibility that Mr Azar could inflict a severe level of violence on a victim. The victim is more likely to be a person who has regular contact with Mr Azar and who he perceives at the time to be causing his frustration, anger, or feelings of distress.”

ESO

If the defendant were to be subject to an ESO, Ms Lau opined that based on his lack of insight into his mental health, he may require a high level of external monitoring and encouragement to maintain ongoing management of his mental health in the community. His recent lapse to drug use in custody suggests that he may also require post-release support to address this risk area.
Overall, Ms Lau noted that based on the identified risk area specific to the defendant's violent offending, it is critical that any risk management include continued support in development of insight into and management of his mental illness, substance abuse, interpersonal aggression, and emotional control.

Requirements of the legislation

Purpose

The Act is designed to address the “almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release”: State of New South Wales v Donovan [2015] NSWSC 1254 at [3].
The primary object of the Act is “to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community”: s 3(1). Another object of the Act is “to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”: s 3(2). It follows that ESOs and CDOs are protective, not punitive: see, e.g., Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]. This protective purpose is “fundamental”: see e.g., Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21].

Threshold requirements: s 5B

Section 5B of the Act provides that the Court can make an ESO in respect of an offender only if:

the person is an offender who is serving, or has served, a sentence of imprisonment for a serious offence;

the person is a supervised offender within the meaning of s 5I;

the application is made in accordance with s 5I; and

the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious offence if he or she is not kept under supervision.

According to s 5D of the Act, the Court is not required to determine that the risk is more likely than not in order to determine that the person poses an unacceptable risk.
The defendant will only satisfy the first two requirements of s 5B if he is currently serving a sentence of imprisonment for a serious offence as defined by the Act. If so, then the defendant will be a supervised offender within the meaning of section 5I(2)(a)(i).
The third requirement will be satisfied if the application is made before the end of the defendant’s sentence of imprisonment on 18 December 2020.

Serious offence

The defendant is currently serving a sentence of imprisonment for a serious offence. A serious offence includes a serious violence offence (s 4 of the Act). Manslaughter is a serious violence offence (s 5A(2A)(b) of the Act). The defendant is therefore eligible for an application for an ESO.

Unacceptable risk

In granting relief, the Court will need to be satisfied “to a high degree of probability” that the defendant poses an unacceptable risk of committing a serious offence unless an ESO is made.
The expression “high degree of probability” indicates something beyond “more probably than not”. The existence of the risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
The facts and circumstances must provide “a firm foundation, rather than a merely reasonable basis, for the conclusion that the risk posed by the offender is unacceptable absent supervision. Reasonable satisfaction is of itself insufficient” (State of New South Wales v Holschier (No 3) [2019] NSWSC 341 at [56]-[57]).
While the Court must be satisfied to a high degree of probability that there is an unacceptable risk, that does not require the Court to conclude that the offender is more likely than not to commit a serious offence: s 5D of the Act. The Court may well conclude that an unacceptable risk is a lower probability, provided the level of the Court’s satisfaction about that risk meets the requirement of a “high degree of probability”. The Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious offence, but, rather, that he or she poses an “unacceptable risk” of committing a serious offence: State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [21]; The State of NSW v Sharpe [2017] NSWSC 469 at [52].
As to the meaning of the phrase “an unacceptable risk”, the case law establishes the following:

what the court must find to be unacceptable is the “risk” of the offender “committing a serious violence offence if he or she is not kept under supervision”: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCCA 57 (Lynn) at [51];

the word “unacceptable” - which means, relevantly, “so far from a required standard, norm, expectation etc as not to be allowed” - is one that “requires context in which, or parameters against which, the unacceptable risk can be measured”: see Lynn at [50];

while the Act does not specify “the precise parameters or standard or norm against which that determination (i.e., the determination whether an offender poses an unacceptable risk) is to be made”, this “must be so” because “[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made”: Lynn at [51];

the determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community: Lynn at [55];

the right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk: Lynn at [44], [55]-[58], [128], [148]. Nevertheless, as their Honours held, the intrusion on a subject’s liberty and privacy are undoubtedly matters which the Court may take into account in its discretion; and

the evaluation to be made is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn at [61]. As Campbell J put it in Holschier at [49], guaranteeing community safety is an impossible task; making it secure is a relative, not absolute, standard.

The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise. As Wilson J put it succinctly in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71], “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate”: embraced, inter alia, in State of New South Wales v Wilson (Preliminary) at [128] per N Adams J and in State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971 at [19] per Walton J.

Preliminary hearing

The Court’s role at a preliminary hearing is similar to that governing the Court's power to make interim orders: Attorney General for the State of NSW v Hayter [2007] NSWSC 983 at [6]. The test as to whether the supporting documentation “if proved” would justify the ESO is “similar to the requirement for a prima facie case to be made out in committal proceedings”: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. The Court does not weigh the documentation or predict the ultimate result.
The Court must have regard to the matters set out in s 9(3) of the Act in performing its task at the preliminary hearing: see, e.g. Attorney General for New South Wales v Tillman. In dealing with interim orders, the Court should give weight to the avoidance of risk: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].
The Court’s task at a preliminary hearing was succinctly put by R A Hulme J in State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 where his Honour said:

“17 A final matter to note from the case law concerns the task being performed at the preliminary hearing stage. It is not for the Court to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing ... It is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest ...
18 The test in s 10A (“the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”) was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that “’prima facie’ proof is required of the matters alleged” and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that “it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO”.
19 There does not appear to be controversy about this. What the Court is required to do is to proceed upon the assumption that the facts alleged in the supporting documentation are proved and to consider whether those facts would justify the making of an ESO.”

Applying those principles and taking the plaintiff’s case at its highest, the defendant continues to demonstrate poor insight into his mental illness (schizophrenia). Compliance with medication is erratic and in breach of his FCTO, thus necessitating numerous transfers to the mental health facility. Despite some evidence of recent stabilisation of mental state and compliance with depot antipsychotic medication, there is a real risk the defendant will not comply with treatment in the future and will relapse. Decline in his mental state corresponds with episodes of increased agitation and threats of violence. As recently as October 2020 he was assessed as presenting a significant risk to others if he remained untreated.
As already noted, Dr Morgans opined in his letter of 20 October 2020 that the defendant had a history of non-adherence to treatment and there was evidence of a deterioration in mental state. In his examination on 20 October 2020, Dr Morgans reported that the defendant would accept an oral medication but refused to accept an injectable form of antipsychotic medication. There was an elevated risk of future violence. The Tribunal determination noted that as at 11 November 2020 the defendant was well because he was taking Paliperidone tablets under supervision.

Court’s discretion and the criteria in s 9(3)

When deciding whether in its discretion to grant an ESO, the Court has to have regard to the matters set out in s 9(2)-(3). Section 9(2) concerns the safety of the community. Provided the threshold requirement of unacceptable risk is satisfied, this consideration will usually militate in favour of the making an ESO. The protection of the community is a primary object of the Act and is expressly stated to be the paramount consideration.
Reports pursuant to s 7(4) of the Act have not yet been obtained. However, the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner are relevant (s 9(3)(c)).
The RAR has already been referred to and supports the making of an ISO under the Act. The report does posit the possibility that the defendant could remain offence free if not kept under supervision. However, it concluded that although the defendant’s family appears to be able to provide him with adequate support to assist with his integration, given his limited insight into his violence and his poor understanding of his mental illness, there is a real possibility or even likelihood that he might become non-compliant with his medication and relapse to drug use. This might lead him to become aggressive towards his family, which would also impact on their ability and willingness to provide ongoing support for him. There is a real possibility that future violence could also approach the threshold of a “serious violence offence”.
Section 9(3)(d) refers to the results of any statistical or other assessment. The RAR includes the results of a number of actuarial instruments. The defendant was assessed as follows:

medium/high range of risk/needs under the LSI-R assessment for general offending (last assessed on 14 March 2020);

high range of risk of violent re-offending using the VRS (assessed for RAR on 16 March 2020); and

borderline range in Composite Perceptual Reasoning on WASI-11 (administered on 20 March 2019).

The RAR author noted that whether the defendant is one of the 39.5 per cent who re-offend or the 60.5 per cent who do not re-offend violently, is contingent upon his ability to manage his risk factors in the community.

Any report prepared by Corrective Services as to the extent to which the offender can reasonably and practicably be managed in the community: (s 9(3)(d1)

A Risk Management Report (RMR) dated 13 May 2020 was prepared by Alexandra Crichton, Community Corrections Officer in the ESO Team. It set out a risk management strategy, including limitations on that strategy in particular respects. The RMR indicated that the defendant could be reasonably and practicably managed in the community. There were, however, some limitations, the most notable of which were:

the defendant’s previous poor compliance with Community Corrections and with supervision in general. This may be indicative of future compliance and as such, the defendant might fail to engage or respond to supervision; and

the defendant has indicated a reluctance to comply with suggested interventions which might aid him in addressing his offending behaviour. This too may indicate his unwillingness to comply with supervision and potential limitations of managing him on an ESO.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate, and the level of the offender's participation: s 9(3)(e)

As noted above, the defendant has completed a number of programs but notably has not completed the VOTP, nor is he willing to complete it despite being told of the benefits of completing treatment.
Consistent with the opinion expressed in the RAR, it is critical that any risk management in the community include continued support in development of insight into and management of the defendant’s mental illness, substance abuse, interpersonal aggression and emotional control. This requirement is even more important now since his most recent mental health decline necessitating a further FCTO.

Options available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending overtime: s 9(3)(e1)

The RMR outlined a number of options available that might reduce the likelihood of the defendant re-offending over time if he is in the community. Notably these include:

referral to psychiatric services;

referral to alcohol and other drug services;

consideration of residential rehabilitation programs;

drug testing; and

non-association and place restrictions to be monitored through electronic monitoring and a schedule of movements.

It is important to note that the defendant’s ability to enrol in VOTP Maintenance is contingent on him completing the VOTP in its entirety while in custody. Because he is unwilling to complete the program, he will not be eligible to participate in the maintenance program. He will, however, have access to other referral services as detailed above.
The defendant’s compliance with his medication regime in the community is a factor that goes to his likelihood of re-offending over time. He is presently on a FCTO. There is a mechanism by which a FCTO can be converted into a CTO in the community. The RMR noted that enquiries are being made by Community Corrections about the suitability for a CTO to ensure better compliance by the defendant with his medication regime.
What is significant in this case, and that which distinguishes it from the recent case of State of NSW v Love [2020] NSWSC 165 is that the State is not seeking a mechanism for coercive mental health treatment to manage the defendant’s risk which arises from his schizophrenia, but rather an order for the supervision of the offender to manage the unacceptable risk of him committing a serious violence offence brought about by a return to problematic drug use (he has admitted to hearing voices after using drugs like cannabis or ice).
What needs to be managed are: problematic associations; limited insight into his mental health and need for medication once released (both factors having contributed to his most recent placement on a FCTO); aggression (he has experienced swift changes in mood); and an overall lack of living a pro-social lifestyle (he has been noted by his Community Corrections officer as rarely expressing remorse for his offence).

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(3)(e2)

The defendant’s past conduct indicates there is a prospect of him not complying with the obligations of an ESO. His overall response to supervision is considered poor. As noted in the RAR, however, based on his lack of insight into his mental health, the defendant may require a high level of external monitoring and encouragement to maintain ongoing management of his mental health in the community.

The level of the defendant’s compliance with any obligations while on release on parole or while subject to an earlier ESO or CDO: s 9(3)(f)

The defendant has demonstrated a period on parole in which his initial response was positive. It appears on the evidence that he subsequently became somewhat overwhelmed by his parole obligations and within months was displaying non-compliant behaviour.

The defendant’s criminal history and any pattern of offending: s 9(3)(h)

The RAR notes that although the defendant has a relatively limited history of violence related offences, he has spent most of his adult life in custody following his conviction for manslaughter which he committed when he was aged 18. Although his offending was spontaneous, it was committed in the context of an emotional reaction, and involved inflicting a severe level of violence against the victim in the company of a co-offender including the use of a number of impromptu weapons. His mental health at the time of the offence and the effects of illicit substances were also relevant to his offending.
The use and possession of weapons has been a feature in the defendant’s criminal history. The defendant’s most relevant criminogenic needs include poor insight into his mental health and need for medication, general violence, substance abuse, interpersonal aggression, lack of emotional control, poor self-control, and poor compliance with supervision.
All these factors support the making of an order.

Conclusions

Unacceptable risk

The evidence supports a conclusion, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious violence offence if released to the community without any supervision or the support that would accompany supervision. However, if the defendant returns to live with his family unsupervised, while the family is in some respects protective, there is evidence of family tensions arising, in particular as between the defendant and his siblings over the relationships that the defendant chose to pursue. This has previously been a destabilising factor for the defendant and led to stress, illicit drug use, moving out of the family home and ultimately re-offending. There is also evidence that the defendant continues to harbour significant resentment towards his mother and sisters for providing statements to police about his offending.

The most recent deterioration in the defendant's mental health has demonstrated, according to psychiatric opinion, that he has no insight into his mental illness and the need for treatment. His compliance with medication and continued education concerning his mental illness will be a critical component in ameliorating his risk of committing another serious violence offence. The recency of the defendant’s mental health decline and evidence of non-compliance with the FCTO, is a further compelling reason for the making of an ISO for the protection and safety of the community.
For the reasons set out above, the evidence before the Court, if accepted at a final hearing, would warrant the Court exercising its discretion in favour of making an ESO.
Moreover, the material before the Court does not permit a conclusion that a CTO will adequately alleviate the risk posed by the defendant. As Justice Walton observed in State of New South Wales v Love (Preliminary) [2019] NSWSC 1660:

“81 (3) ... Expert opinion will no doubt address whether community health services may adequately manage the defendant’s behavioural issues. ...”

It should also be noted that if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing the experts to conduct separate psychiatric or psychological examinations and direct the defendant to attend those examinations.
Being so satisfied as I am, the Court has no discretion as to the making of the orders for the appointment of the examinations. Those orders must be made (State of NSW v Vincent (Preliminary) [2020] NSWSC 1269 at [106]-[107]). The Court will then be best placed to assess the defendant’s risk upon receipt of those expert opinions.
Presently the RAR has opined that because of the defendant’s lack of insight into his mental health, despite having received psychoeducation and ongoing support in custody and in the community, he may require a high level of external monitoring and encouragement to maintain ongoing management of his mental health in the community. His recent lapse into drug use in custody suggests that he may also require post-release support to address this risk area. An ESO is a mechanism through which these needs can be met.
The defendant has submitted that by seeking an ISO the State is in effect seeking a mechanism for coercive mental health treatment to manage the defendant’s risk arising from his schizophrenia. That does not necessarily follow. The position of the State is that risk avoidance is the focus of the inquiry at the preliminary stage. Risk avoidance is the basis upon which the State seeks an ISO in this preliminary hearing.
An ISO has the effect that the defendant will have access to the ESO Team within Community Corrections which can provide intensive supervision and monitoring of persons the subject of ESOs and operates seven days per week. An ISO has the capacity to manage the defendant’s risk and criminogenic needs through face to face interviews, field visits, monitoring of associations, guidance and direction with respect to referrals to psychological and drug and alcohol services and alcohol and drug testing. The ISO will work in tandem with any CTO, particularly during the defendant’s transition into the community after his release from custody. The ISO will also act as a support for whomever the defendant lives with. As the RAR author said, the management of risk usually involves a defendant improving his or her level of functioning in dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. The aim of an ESO in the defendant’s case is to encourage the development and maintenance of a stable and sustainable lifestyle that will endure beyond the cessation of supervision.

The importance of conditions

In State of New South Wales v Boney(Final Hearing) [2020] NSWSC 1375 Walton J summarised the law on imposing conditions under the Act:

“119   The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).
120   Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).
121   The Court of Appeal further held at [53]-[54]:
“[53]   Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.
[54]    As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

122   During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 (“Sturgeon”) at [99]:
[99]    The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:
(1)    an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];
(2)    the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];
(3)    as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];
(4)    ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];
(5)    any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];
(6)    any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];
(7)    a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].

123   Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed “there must be some sort of identification of the unacceptable risk and how that condition goes to it”.
124   In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.
125   In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).
126   His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):
[59] …   Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.

[Original emphasis.]
127 With respect, I accept Button J’s statement of principles in Farringdon.
128 If counsel for the defendant was suggesting that in light of decisions in Sturgeon and Wilde there must necessarily be a specific and direct connection between a condition and the identified unacceptable risk, such an approach would be erroneous because on careful reading of the authorities the Court does not require a direct connection. In Sturgeon, Garling J observed that it will “ordinarily… be necessary” for a condition imposed to be “related to the mitigation of identified unacceptable risk”. Similarly, in Farringdon, Button J observed an “indirect” connection to be sufficient. To repeat Wilde, the Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which formed the basis for the ESO.”

Conditions

The defendant objected to Conditions 5, 6 and 7 binding him as part of the ISO. The content of those conditions is:

“Schedule of Movements
5.   If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
6.   If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.
7.   The defendant must not deviate from his approved schedule of movements except in an emergency.”

The defendant submitted that this was a draconian measure accompanied by a high risk that he would become overwhelmed or inadvertently breach a requirement of the conditions which was not directed to a risk of him committing a spontaneous act of violence following a deterioration in his mental health nor does it facilitate his rehabilitation.
The plaintiff submitted that these conditions were necessary to ensure proper supervision and a structure to assist the defendant with forming prosocial activities and a routine. This would include attendance on necessary mental health practitioners upon release. The plaintiff submitted that the defendant needed a structure for his daily activities, particularly given his poor response to supervision in the past. The plaintiff submitted that such a schedule would allow a step down process to be implemented and provide closer monitoring of the defendant’s movements and activities.
I am of the opinion that Conditions 5, 6 and 7 should be imposed on the defendant at this early stage. Except for the period when he was at liberty on parole (a period of just over six months) the defendant has spent the last six and a half years in prison. It is important that he have a regular structured program to follow when he is again released to parole on this next occasion. This will reduce the chance of him being “overwhelmed” by conflicting responsibilities and requirements as appears to have happened when he was last at liberty. Once he has settled into a regular routine, consideration can be given to relaxing these conditions.
The defendant objected to Conditions 8-13. Those conditions are:

“Part B: Accommodation
8.   The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
9.   The defendant must be at his approved address between [9pm] and [6am] unless other arrangements are approved by a DSO.
10.   The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.
11.   The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
12.    The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
13.    The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address) without the prior approval of a DSO.”

The defendant submitted that he wished to live with his father to provide him with support as his father currently lives alone. The defendant submitted that his proposed amendments facilitate this, with alternative pre-approved addresses for other family members. The defendant submitted that Condition 10 was inapplicable and should be deleted. Amendments to Condition 13 were proposed to reflect the fact that the defendant might not be able to control visitors to his home given that he will be cohabiting with others.
The amended form of Conditions 8 to 13 as proposed by the defendant are:

“Part B: Accommodation
8.   The defendant must live at an address approved by a DSO and notify a DSO before any steps are taken to change the defendant's address or living arrangements. The address of his father, Joseph Azar at Granville, his mother's, Shermaine Azar, at Winston Hill and sister's, Amagen Azar, at South Wentworthville are pre approved.
9.   The defendant must be at his approved address between [9pm] and [6am] unless other arrangements are approved by a DSO.
10.
11.   The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
12.   The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
13.   The defendant must promptly notify a DSO of any visitor remaining at his approved address.”

The effect of the amendments proposed by the defendant is that the defendant would comply with Conditions 9, 11 and 12 with Conditions 8 and 13 amended and Condition 10 deleted.
The State submitted that Conditions 8, 9, 10, 11 and 12 as per the Summons should be imposed. The State submitted that it was premature to include particular addresses at this stage. Pre-approval might occur by the DSO but not by the hearing date and will involve extensive assessment of the address in accordance with established CSNSW protocols to ensure it is the most suitable type of accommodation.
The State submitted that Condition 10 should remain so that if family based accommodation was not successful, or the defendant needed respite accommodation, such as from the Community Offender Support Program (COSP), this condition would be necessary. The State submitted that in that eventuality, the defendant would still need to comply with the by-laws of the accommodation.
The State submitted that Condition 13 could be amended for further clarification with the following additional wording:

“If the defendant is living with any co-resident, he must not invite any person to enter and remain or stay overnight at his approved address (or room if staying at supported accommodation) without the prior approval of his DSO.
If any of his co-residents invite or permit someone (other than a health professional or tradesperson attending the residence to provide a service) (“the visitor”) to enter remain or stay overnight at the approved address (or room if staying at supported accommodation) the offender must inform his DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from his DSO in relation to the visitor. Note: This condition does not apply to the defendant’s co-residents.”

I have concluded that the conditions put forward by the State relating to accommodation should be imposed, including the modified Condition 13. I have reached this conclusion on the basis that a simple regime needs to be in place to deal with the defendant’s accommodation which can be modified as required in consultation with the DSO. Once a set routine has been established, modifications can be made by application to the DSO.
Conditions 14 and 15 proposed by the State were as follows:

“Part C: Place and travel restrictions
14. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
15. The defendant must not frequent or visit any place or district specified by a DSO.”

The defendant consented to Condition 14, but opposed Condition 15. The defendant submitted that Condition 15 was opposed because it was over expansive and was not directed either at the defendant’s risk of committing a spontaneous act of violence following a deterioration in his mental health or to facilitating his rehabilitation.
The State supported the need for Condition 15 in that given the likelihood of risks relating to antisocial peers, having location restrictions would be important to minimise the defendant’s potential contact with such persons by frequenting locations which they would normally gather. The State did agree to remove the word “district” from Condition 15.
I agree with the submission by the defendant. Condition 15 should not be imposed. Its content is largely included in Conditions 5-7.
The State proposed the following Conditions 16-20:

“Part D: Employment, finance and education
16.   The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
17.   The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
18.   The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.
19.   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.
20.   The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of a DSO.”

The defendant opposed Conditions 16-20 on the basis that they bore no relationship to his identified risk factors and were not rehabilitative. This was because they took no account of his cognitive impairment and severe mental illness which might restrict his ability to engage in employment or related programs. The defendant submitted that the objectives to which Conditions 19 and 20 were directed were not apparent.
The State agreed to remove Conditions 16, 18 and 20. The State pressed Condition 17 on the basis that the defendant had stated that he was motivated to gain employment after release and that this needed to be monitored for potential antisocial associates.
The State pressed Condition 19 on the basis that the monitoring of finances was important to assess whether the defendant was using money received by him to purchase drugs or was engaged in stealing or dealing with drugs.
I have concluded that Conditions 17 and 19 are reasonable, given the defendant’s previous offending and that they should be included in the ISO.
The State proposed the following Conditions 21-25:

“Part E: Drugs and alcohol
21.   The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.
22.   The defendant must not:
a.   Possess or consume alcohol without the prior approval of a DSO.
b.   Use prohibited drugs or abuse drugs unlawfully obtained.
23.   The defendant must submit to drug and alcohol testing.
24.   The defendant must not enter any licensed premises including hotels, bars, racecourses and licensed clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
25.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.”

The defendant opposed Conditions 22 and 24 and proposed an alternative wording for Condition 25 (removing references to alcohol). This was on the basis that the defendant did not have any history of alcohol abuse warranting restrictions on his ability to consume alcohol. The defendant noted that Condition 22(b) replicated Condition 21.
The State pressed Conditions 21, 22, 23, 24 and 25. It did so on the basis that the defendant was intoxicated throughout the index offence, although it is not clear whether this was due to alcohol or drugs or both. In any event, there was a reference in the material before the Court to the defendant binge drinking from which one can infer a problem with alcohol. The State submitted that the DSO needed to monitor the impact of any substance including alcohol on the defendant’s mental health and medication and that this might require directions concerning alcohol limits. The State noted that the DSO could still provide approval for alcohol consumption in appropriate circumstances (as is often done). For example, if deemed appropriate, the DSO could allow the defendant to have two alcoholic drinks on Christmas Day if in the company of his parents.
I propose to include Conditions 21, 22, 23, 24 and 25 in the ISO except that Condition 22(b) will be deleted as it replicates the content of Condition 21. The consumption of alcohol and drugs has been a problem for the defendant in the past. Condition 24 allows the DSO to monitor antisocial associates as the defendant has a history of associating with such persons. There is provision for the DSO to give approval to consume alcohol on appropriate occasions.
The State proposed Conditions 26-29 which were as follows:

“Part F: Non-association
Associations with Others (not children)
26.   The defendant must not associate with any person or persons specified by a DSO.
27.   Without limiting condition 26, the defendant must not:
a.   associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO.
b.   associate with any people who he knows are consuming or under the influence of illegal drugs.
c.   associate with any person held in custody without prior approval of a DSO.
28.   The defendant must agree to a DSO disclosing his criminal history to anyone the defendant is in a personal intimate relationship if the disclosure is reasonably necessary.
29.   The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation.”

The defendant opposed Conditions 26-29. Condition 26 was opposed on the basis that it was unconstrained and over-broad. The defendant submitted that Condition 27 exposed him to a risk of inadvertent breach through associations (including with family members) which he could not reasonably avoid. The defendant opposed restrictions on his association with others consuming alcohol.
The State pressed Conditions 26-29. These conditions operate to allow monitoring of the defendant’s potential antisocial relationships which had been a problem for him in the past.
The restrictions imposed by Conditions 26-29 are reasonable and have appropriate regard for the difficulties confronted by the defendant when he was previously released on parole. These conditions should be included in the ISO.
The State proposed the following conditions:

“Part H: Weapons
30.   The defendant must not possess or use any of the following:
a. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,
b. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,
31.   Without limiting or altering condition 30, the defendant must not possess or use any of the following, without a DSO's prior approval:
a.   a knife, machete, sword or any other device that consists of a single- edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;
b.   any other implement made or adapted for use for causing injury to a person; or
c.   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.”

The defendant opposed Conditions 30 and 31 on the basis that while it was recognised that some of his violent offending involved the spontaneous use of weapons, those conditions are ambiguous and uncertain and when one has regard to his mental impairments, the defendant could not reasonably comply with them.
The State pressed for the imposition of these conditions on the basis that the defendant had a history of weapons use, particularly ad hoc weapons. Given the threats made by the defendant to medical specialists seeking to provide assistance to him and his use of ad hoc weapons in the past, the State pressed for their inclusion because there was a real risk of violent offending if the defendant was given access to such weapons.
I agree that those conditions are reasonable given the defendant’s background and given the episodes of anger displayed by him in the past and the threats made by him. These conditions should be included in the ISO.
The State sought the imposition of Conditions 32-42:

“Part I: Access to the internet and other electronic communication
32.   The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).
33.   The defendant must not use any alias, electronic identity, log-in name, name other than “Daniel Azar” or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.
34.   The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.
35.   The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
36.   The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.
37.   The defendant must not use any coded or encrypted messaging application or service.
38.   The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.
39.   The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.
40.   The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
41.   The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.
42.   The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.”

The defendant opposed any of Conditions 32-42 being imposed on him on the basis that they bore no rational relationship to his risk of committing a further serious offences or on his rehabilitation.
The State pressed for all of Conditions 32-42 as set out in the Summons. This was on the basis that these conditions operated as a suite of conditions that need to be considered together and were connected with each other. The removal of one or two of them would impact on the DSO’s ability to properly monitor online communications engaged in by the defendant. For example, Condition 34 would prevent the defendant from borrowing his parents’ or sisters’ device to avoid detection of his internet usage.
The State submitted that these conditions would provide a considerable insight for a DSO into the defendant’s mental health stability and the effectiveness of mental health medication as well as monitoring anti-social peer interaction with others by way of computers.
Such precautions as are set out in Conditions 32-42 are usually appropriate for persons who are using the internet to prey upon other users, particularly where sexual elements are involved. However, I can also see how access to this information would be most important for a DSO in order to assess and have insight into potential dangers arising from the mental health problems experienced by the defendant. It is also not without significance that following the index offence, the defendant went online to acknowledge what he had done and to seek praise and approval for it. I consider these conditions to be reasonable.
The State sought to impose these conditions:

“Part J: Search and seizure
43. The defendant must submit to the search of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.
44. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order.”

The defendant proposed an alternative search condition to what was described as “the unconstrained” condition sought by the State. This would make a search conditional upon the formation of a reasonable opinion by the DSO that a search was necessary for a specified purpose.
Condition 43 as proposed by the defendant was:

“43   If the DSO forms a reasonable opinion that a search (of the type referred to in sub-paragraphs (d) to (g) below) is necessary:
a.   for the safety and welfare of residents or staff or persons present at the defendant's approved address;
b.   to monitor the defendant's compliance with this order; or
c.   because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;
The DSO must first inform the defendant of the reason for the search and then the DSO may direct, and the defendant must submit to:
d.   search and inspection of any part of, or anything in, the defendant's specific room at his approved address;
e.   search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant;
f.   search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or
g.   search and examination of his person.”

The defendant agreed to Condition 44.
The State suggested an alternative to the original Condition 43 in the following terms:

“43 If the DSO forms a reasonable suspicion that a search is required either to monitor the defendant’s compliance with this Order or for the safety and welfare of any other person or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence the defendant must submit to the search by his DSO (or any other person as directed by the DSO) of his person or residence or any vehicle in which he his travelling or which is under his effective control or any computer electronic or communication device storage facility garage, locker or commercial facility in his possession or under his control and to the seizure of any object located during the search.”

A condition of this kind needs to be part of the conditions included in the ISO. I note, however, that the condition now suggested by the State overcomes a number of the objections identified by the defendant. Accordingly, I propose to include in the Conditions the modified Condition 43 proposed by the State.
The plaintiff sought to impose conditions as follows:

“Part L: Personal details and appearance
45.   The defendant must not change his name from “Daniel Azar” or use any other name without notifying a DSO.
46.   The defendant must not significantly change his appearance without the approval of a DSO.
47.   The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
48.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.”

The defendant opposed Condition 46 which he submitted was redundant given the terms of Condition 47. The defendant submitted that Condition 46 did not bear any relationship to his identification risk nor to his rehabilitation. The defendant did not oppose the other conditions.
The plaintiff pressed for the inclusion of Condition 46.
I am of the opinion that Condition 46 adds little to what is contained in Condition 47. It follows that Condition 46 will not be included in the conditions attached to the ISO.
The State put forward Conditions 49-56 as follows:

“Part M: Medical intervention and treatment
49.   The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
50.   The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
51.   The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
52.   The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
53.   The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
54.   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.
55.   The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.
56.   The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.”

The defendant opposed these conditions. He submitted that he was subject to a FCTO and would be subject to a CTO upon his release. He submitted that his treatment would be appropriately managed under that regime and not under a regime where his lack of insight into his medical condition exposed him to criminal penalties, including the risk of imprisonment.
The defendant proposed a single alternative condition to facilitate the communication of information by his health care practitioners to his DSO where necessary as follows:

“56. The defendant must agree to his healthcare practitioners who administer and monitor his Forensic Community Treatment Order or Community Treatment Order sharing information including reports on his progress and information with his DSO as considered appropriate by his healthcare practitioners for the defendant’s rehabilitation and risk mitigation in relation to a serious violence offence. Before sharing such information, the defendant’s healthcare practitioner must first inform the defendant of the information to be shared.”

The plaintiff pressed for Conditions 49-56 as set out above.
The plaintiff submitted that information sharing regarding the defendant’s progress and participation in the community was important in addressing his mental health and wellbeing but also his risk factors. The plaintiff submitted that the disclosing and sharing of information with the defendant’s treatment providers was also important for their own decision making regarding the defendant’s personal safety and the safety of other clients.
The plaintiff submitted that if the defendant was on a CTO when released and that CTO lapsed or was not renewed, it was essential for his proper management that there were in place conditions providing for the continuation of his medication.
I have concluded that there is a need for more comprehensive conditions as to the sharing of information concerning the defendant’s health and in particular, his mental health condition beyond that which the defendant has put forward in his alternative condition. Accordingly, the conditions proposed by the plaintiff should be imposed.
As has been set out in this judgment, a major problem for the defendant which medical and other experts have identified is his lack of insight into the nature of the condition from which he suffers (schizophrenia) and his failure to appreciate that the taking of prescribed medication is essential for his wellbeing and for him to be able to safely function in the community.
Given his history, and in particular the circumstances surrounding the index offence, the safety of the community has to be given priority over any concerns he or his legal advisors might have as to the dissemination of private health information. In such a context, it is important that all of his treating specialists should be aware in a timely fashion of his symptoms so that if and when necessary prompt intervention can occur, both for the benefit of the defendant but also for the community.

It follows that I make the following orders:

An order pursuant to s 7(4) of the Act:

Appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

I direct the defendant to attend those examinations.

An order:

Pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order commencing on 18 December 2020 (the Interim Supervision Order).

Pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days; and

Pursuant to s 11 of the Act, I direct that the defendant for the period of the Interim Supervision Order comply with the conditions set out in the Schedule to this judgment.

**********

ANNEXURE A

SCHEDULE OF CONDITIONS OF SUPERVISION Daniel Azar

Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW)

In these conditions:

"CSNSW" means Corrective Services NSW.

"Commissioner" means Commissioner for Corrective Services

"Defendant" means "Daniel Azar", the defendant in these proceedings and the subject of the order.

"Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW)

and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

"Electronic Identity" means each of the following:

an email address,

a user name or other identity allowing access to an instant messaging service,

a user name or other identity allowing access to a chat room or social media on the internet,

any other user name or other identity allowing access to the internet or an electronic communication service.

"DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

"Material" includes:

any written or printed material;

any picture, painting or drawing;

any carving, sculpture, statue or figure;

any photograph, film, video recording or other object or thing from which an
image may be reproduced;
any computer data or the computer record or system containing the data; and
any other material or object on which an image or representation is recorded or
from which an image or representation may be reproduced.

"NSWPF" means NSW Police Force.

"Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

"Search" includes:

A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and

A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

Schedule of Movements

If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.
The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.
The defendant must be at his approved address between [9pm] and [6am] unless other arrangements are approved by a DSO.
The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.
The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
If the defendant is living with any co-resident he must not invite any person to enter and remain or stay overnight at his approved address (or room if staying at supported accommodation) without the prior approval of his DSO.

If any of his co-residents invite or permit someone (other than a health professional or tradesperson) attending the residence to provide a service (the visitor) to enter, remain or stay overnight at the approved address (or room if staying at supported accommodation) the defendant must inform his DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from his DSO in relation to the visitor. Note: This condition does not apply to the defendant’s co-residents.

Part C: Place and travel restrictions

The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

Part D: Employment, finance and education

The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

Part E: Drugs and alcohol

The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.
The defendant must not:

a. Possess or consume alcohol without the prior approval of a DSO.

The defendant must submit to drug and alcohol testing.
The defendant must not enter any licensed premises including hotels, bars, racecourses and licensed clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

Part F: Non-association

Associations with Others (not children)

The defendant must not associate with any person or persons specified by a DSO.
Without: limiting condition 26, the defendant must not:

a. associate with any people who he knows are consuming or under the

influence of alcohol without the prior approval of a DSO.

b. associate with any people who he knows are consuming or under the

influence of illegal drugs.

c. associate with any person held in custody without prior approval of a DSO.

The defendant must agree to a DSO disclosing his criminal history to anyone the defendant is in a personal intimate relationship if the disclosure is reasonably necessary.
The defendant must obtain written permission from a DSO before joining or affiliating with any club or organisation.

Part H: Weapons

The defendant must not possess or use any of the following:

a. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,

b. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,

Without limiting or altering condition 30, the defendant must not possess or use any of the following, without a DSO’s prior approval:

a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;

b. any other implement made or adapted for use for causing injury to a

person; or

c. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

Part I: Access to the internet and other electronic communication

The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.
The defendant must not use any alias, electronic identity, log-in name, name other than “Daniel Azar” or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.
The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.
The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.
The defendant must not use any coded or encrypted messaging application or service.
The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.
The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.
The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.
The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J: Search and seizure

If the DSO forms a reasonable suspicion that a search is required either to monitor the defendant’s compliance with this Order or the safety and welfare of any other person or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to the search by his DSO (or any other person as directed by the DSO) of his person or residence or any vehicle in which he is travelling or which is under his effective control or any computer, electronic or communication device, storage facility, garage, locker or commercial facility in his possession or under his control and to the seizure of any object located during the search.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order.

Part L: Personal details and appearance

The defendant must not change his name from “Daniel Azar” or use any other name without notifying a DSO.
The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part M: Medical intervention and treatment

The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.
The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.
The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

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Decision last updated: 16 December 2020

Medium Neutral Citation:	State of New South Wales v Azar (Preliminary) [2020] NSWSC 1807
Hearing dates:	7 December 2020
Decision date:	16 December 2020
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	(1) An order pursuant to s 7(4) of the Act: (a) Appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) I direct the defendant to attend those examinations. (2) An order: (a) Pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order commencing on 18 December 2020 (the Interim Supervision Order). (b) Pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days; and (c) Pursuant to s 11 of the Act, I direct that the defendant for the period of the Interim Supervision Order comply with the conditions set out in the Schedule to this judgment.
Catchwords:	HIGH RISK OFFENDER – mental health issues (schizophrenia) – index offence of manslaughter – offender suffering undiagnosed schizophrenia at time of index offence – defendant granted parole in December 2017 – defendant commenced displaying non-compliant behaviour – increase in aggression directed at family members – parole revoked after six months on the basis of failure to maintain good behaviour – defendant using illicit substances while in gaol – preliminary application for ISO – whether unacceptable risk of committing another serious violence offence – defendant has little insight into his ongoing needs for psychiatric and psychological treatment – dispute as to conditions – ISO made.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 AttorneyGeneral for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 Attorney General for the State of NSW v Hayter [2007] NSWSC 983 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCCA 57 State of New South Wales v Boney(Final Hearing) [2020] NSWSC 1375 State of New South Wales v Donovan [2015] NSWSC 1254 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Holschier (No 3) [2019] NSWSC 341 State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971 State of New South Wales v Love (Preliminary) [2019] NSWSC 1660 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 State of NSW v Love [2020] NSWSC 165 State of NSW v Vincent (Preliminary) [2020] NSWSC 1269 The State of NSW v Sharpe [2017] NSWSC 469
Category:	Principal judgment
Parties:	State of New South Wales – Plaintiff Daniel Azar – Defendant
Representation:	Counsel: C Melis – Plaintiff A Bhasin – Defendant Solicitors: Crown Solicitor NSW– Plaintiff Legal Aid NSW – Defendant
File Number(s):	2020/273731
Publication restriction:	An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.