State of New South Wales v Bowen (Final)

[2019] NSWSC 1003

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Bowen (Final) [2019] NSWSC 1003
Hearing dates:	7 August 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Extended supervision order for 3 years with conditions
Catchwords:	HIGH RISK OFFENDER – application for extended supervision order – final hearing – history of serious violence offences – statutory preconditions established – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious violence offence if not kept under supervision – consideration of progress in rehabilitation, psychological diagnoses, and conduct under past and present supervision – defendant’s negative attitude to extended supervision order not relevant to Court’s discretion – experts in agreement as to assessment of risk posed by defendant – order made subject to conditions
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), 5B, 5B(d), 9(1)(a), 9(2), 11 Evidence Act 1995 (NSW), s 126E(b) Terrorism (High Risk Offenders) Act 2017 (NSW), s 20
Cases Cited:	State of New South Wales v Bowen (Preliminary) [2019] NSWSC 570 State of New South Wales v Naaman (No 2) [2018] NSWCA 328
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Stephen Michael Bowen (Defendant)
Representation:	Counsel: Ms D New (Plaintiff) Ms F Graham (Defendant)   Solicitors: NSW Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2019/30894

Judgment

1. HIS HONOUR: The State of New South Wales commenced proceedings against Stephen Michael Bowen under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) on 29 January 2019. An amended summons was filed on 29 April 2019 and a further amended summons was filed by leave in Court on 7 August 2019. The State seeks orders including that Mr Bowen be made the subject of an extended supervision order (ESO) for a period of three years.

2. The basis of the State's application is the contention that there is a high degree of probability that Mr Bowen poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision: s 5B(d) of the Act.

3. Wright J made orders on 16 May 2019 at a preliminary hearing: State of New South Wales v Bowen (Preliminary) [2019] NSWSC 570. Pursuant to those orders, Dr Adam Martin, forensic psychiatrist, and Ms Chelsey Dewson, forensic psychologist, have separately examined Mr Bowen and have provided reports. In addition, Mr Bowen has been subject to an interim supervision order (ISO) since 31 May 2019 with a suite of conditions, including that he submit to electronic monitoring of his movements. The ISO has been extended twice and is due to expire on 23 August 2019.

Evidence at the final hearing

4. The final hearing of the matter occupied a full day on 7 August 2019. There was no dispute that the statutory preconditions for the making of an ESO were established. What was in dispute was whether an ESO should be made at all. Mr Bowen further contended that if an ESO were to be made, it should be for a period not exceeding 18 months, and that many of the conditions proposed by the State should be amended or omitted.

5. In addition to the reports of the two court-appointed experts mentioned above there were a number of other reports, including a Risk Assessment Report by Ms Cherice Cieplucha, Chief Psychologist, Risk Management Programs, Corrective Services NSW, dated 21 November 2018 (Cieplucha Report), and a Risk Management Report by Mr Marc Corcoran, Senior Community Corrections Officer, ESO Team, dated 20 December 2018 (Corcoran Report). The other documentary evidence tendered by the State included the usual array of affidavits and documentary material.

6. Counsel for Mr Bowen read an affidavit of her instructing solicitor, to which was annexed a "Counselling Letter and Summary" dated 12 April 2019 and a "Psychological Report" dated 24 July 2019, both by Mr Michael Kirton, clinical psychologist. Mr Kirton has been Mr Bowen's treating psychologist since he was released from gaol in September 2018. Also annexed to this affidavit was a letter by Mr Anthony Cresweller. Mr Cresweller met Mr Bowen when he was a participant of the Kairos course that Mr Cresweller hosted at Junee Correctional Centre in 2011, and has maintained contact with Mr Bowen since that time. Mr Cresweller wrote that he plans to maintain regular contact and provide support to Mr Bowen in the future.

7. Counsel for Mr Bowen tendered a Corrective Services NSW case note dated 6 February 2019 together with a copy which had a portion redacted (Exhibit 1). The same was tendered in the preliminary hearing before Wright J who made an order under s 126E(b) of the Evidence Act 1995 (NSW) for the non-publication or disclosure of the redacted portion. The full terms of the order are set out in his Honour's judgment at [12] and the reasons appear at [13]-[19]. I was invited to make the same order. I do so as I agree with his Honour's reasons for the document being received in evidence, subject to an order being made. I will take the same course as his Honour: the original will be placed in a sealed envelope with an appropriate covering note and the redacted version will openly available with all of the other documentary evidence.

8. A further Corrective Services case note dated 19 February 2019 was tendered by counsel for Mr Bowen and became Exhibit 2.

9. The State also tendered a victim statement pursuant to s 21A of the Act. Counsel for the State indicated that the victim did not consent to disclosure of the statement to the defendant. I have had regard to the content of the statement whilst remaining mindful of the matters I am required to consider by virtue of various other provisions of the Act. The statement makes abundantly clear the degree and enduring nature of the harm and fear Mr Bowen's actions caused. It is little wonder that there is support for the making of an order, but that depends upon the State establishing what it must under s 5B of the Act.

10. Dr Martin and Ms Dewson were required for cross-examination and they gave their evidence concurrently. Ms Kelli Grabham, Applications and Operational Governance Officer of the extended Supervision Order Team, Corrective Services NSW, was also required for cross-examination on her affidavit.

11. The judgment of Wright J referred to above contains (at [21]-[78]) a very thorough and careful survey of much of the evidence that was tendered at the preliminary hearing and again at the final hearing. I rely upon his Honour's summary and will not repeat much of it.

Offending history

12. For the benefit of the reader, I will simply indicate that Mr Bowen's history of violent offending and incarceration comprises the following matters:

Assault occasioning actual bodily harm on 26 October 1998. Sentenced to 125 hours of community service.

Assault occasioning actual bodily harm on 18 February 1999. Sentenced to 150 hours of community service.

Murder on 4 September 1999. Sentenced to imprisonment for 18 years with a non-parole period of 13 years 6 months.

Released to parole on 4 June 2013. Parole revoked and returned to custody on 1 November 2013. Further released on parole on 25 December 2014.

Recklessly inflict grievous bodily harm on 25 June 2015. Sentenced to imprisonment for 3 years and 5 months with a non-parole period of 2 years and 3 months.

Released to parole on 25 September 2018. Parole period expired on 31 May 2019. Interim supervision order commenced.

13. The victim of the murder offence was Mr Bowen’s employer at a caravan park. He was found by police having been beaten around the head and body with a wooden baton and fire tongs. The cause of death was a brain injury. It appeared that the circumstances of the offending included that Mr Bowen was intoxicated by alcohol and cannabis, and that he had formed the view that the victim owed him money and intended to use force to get it. Around the time of the offending, Mr Bowen had made threats against other people who lived at the caravan park, including a woman who lived there, with whom he was in a relationship.

14. The grievous bodily harm offence occurred six months after Mr Bowen had been re-released on parole for the murder offence. It occurred on 25 June 2015, when Mr Bowen punched his partner in the face a number of times, back-handed with a closed fist, causing three or four teeth to fall out as well as associated bruising and swelling. This occurred in the context of a relationship of about six months in which Mr Bowen had begun assaulting the victim within weeks of its commencement. The agreed facts included that he had assaulted her on numerous occasions, causing bruising and swelling to her face.

15. The parole to which Mr Bowen was subject from 25 September 2018 to 31 May 2019 included conditions that he submit to electronic monitoring; abstain from alcohol and illicit drugs; participate in the "maintenance" component of the Violent Offenders Treatment Program; not contact (etc) the victim or her family; and not go into the Randwick City Council local government area. There were also general conditions as to supervision by Community Corrections.

16. The ISO which commenced upon the cessation of the parole period added some further requirements. (The full schedule is appended to the judgment of Wright J.)

Expert opinions

17. The Risk Assessment Report by Ms Cieplucha and the Risk Management Report by Mr Corcoran are well summarised in the judgment of Wright J.

18. The reports of the two court-appointed experts and the psychologist’s report tendered by Mr Bowen may be summarised as follows.

Dr Adam Martin, forensic psychiatrist, 28 June 2019

19. Dr Martin interviewed Mr Bowen in his rooms for one hour on 26 June 2019.

Psychiatric/drug and alcohol/medical/personal/family/forensic history

20. Dr Martin provides an account consistent with other reports.

21. In relation to Mr Bowen’s attitude to his offending, Dr Martin noted that Mr Bowen told him about the circumstances of the murder, including his disagreement with the victim, his intoxication and his stressed mental state – but that Mr Bowen reported that he “did not remember exactly what had occurred but his memory was from what he had read about the events”. [1]

    1. Report, Dr Adam Martin, 28 June 2019, p 7 (Martin Report).

22. Dr Martin also reported that in relation to the grievous bodily harm offence, Mr Bowen provided an explanation by reference to his unhealthy relationship with the victim, to whom he had been paroled, who had mental health and drug issues – but noted that he expressed regret. [2]

    2. Martin Report, p 7.

Psychiatric/psychological conditions

23. Dr Martin did not consider that Mr Bowen had any major mental illness, nor did he have any major mood disturbance at present. [3]

    3. Martin Report, pp 12-13.

24. Dr Martin considered that Mr Bowen’s history was “consistent with him having a personality disorder [anti-social] and substance use disorder [alcohol and cannabis]” although the latter was in remission due to his long abstinence during the highly controlled environment of incarceration, as well as more recent supervision and conditions. Dr Martin went on to say that “it is reasonable to accept that given Mr Bowen’s history and problems controlling his behaviour, substance use will remain a significant vulnerability for him for the rest of his life”. Likewise, in relation to the personality disorders, Dr Martin said that “it is likely he will always be prone to being impulsive, reckless and potentially resorting to violence in the context of interpersonal conflict, based on his history to date”, although he went on to note that violent behaviours can be moderated over time as people mature.

Summary of risk assessment

25. Dr Martin concurred generally with Ms Cieplucha’s assessment of risk, noting that it could not be said that Mr Bowen has a “low risk of future violence” due to the “history of violent behaviour …chaotic developmental history, disrupted education, relationship history and predisposition to substance use”. Dr Martin’s opinion was that these factors “place him at a significant risk of future violence” – the risk of which will increase if “in a dysfunctional intimate relationship, if using alcohol and other substances, or if experiencing extreme stress (for instance in an escalating argument with another person)”. [4]

    4. Martin Report, pp 13-14.

HCR-20 Version 3

26. Dr Martin assessed the likelihood of Mr Bowen committing a further serious offence using the HCR-20 Version 3, “a commonly used structured professional judgment tool which identifies risk factors which have been empirically associated with violence”. Although noting that Mr Bowen “presents as currently reasonably stable, with reasonable plans for the future”, and has exhibited control of his behaviour recently (which Dr Martin infers is due to the stability of custody and supervision conditions), he considered that significant weight needed to be given to Mr Bowen’s historical problems. To conclude, he considered that “if in a less structured environment without supervision, in my view, his risk of violence would increase”. [5]

    5. Martin Report, pp 14-15.

Imposition of ESO

27. Dr Martin accepted Mr Bowen’s comments that the conditions of an ESO will not “prevent in absolute terms the possibility of interpersonal conflict”. [6] However, Dr Martin considered that supervision through conditions could monitor substance use and oversee his relationships as well as provide structure for engagement of services to address his criminogenic needs. This could, in Dr Martin’s opinion, manage the risk of future violence “to a degree”.

    6. Martin Report, p 16.

Conditions and duration of ESO

28. Dr Martin considered the proposed conditions of the ESO appropriate from a “clinical perspective”. He noted there is a vexed issue in that the imposition of an ESO could cause stress to Mr Bowen which might increase the risk of violence, but that overall, the more significant factors for violence are history, personality style, and his issues with interpersonal functioning. [7]

    7. Martin Report, p 17.

29. Dr Martin agreed that having to wear an ankle bracelet was stigmatising (but that it needed to be balanced with community safety), and that the scheduling condition was not necessary in reducing the risk of violence. (The State is not pressing for a condition as to the latter, except in the event of breach.) However, Dr Martin opined that forensic psychology services maintenance sessions, urine drug screen monitoring, and total abstinence from substances were reasonable conditions of management. Further, Dr Martin agreed that three year duration was appropriate in view of the risk of violence which will be ongoing and not decrease due to the significance of historical factors. [8]

    8. Martin Report, p 18.

Chelsey Dewson, forensic psychologist, 5 July 2019

30. Ms Dewson interviewed Mr Bowen on 20 June 2019.

Family and developmental history

31. Ms Dewson provided an account consistent with other reports. [9] She noted the “significant influence” of Mr Bowen’s childhood experiences, which “derailed him from his natural developmental course”, and the impact of the normalisation of violence and antisocial behaviour “likely causing him to form unhelpful attitudes”. [10]

    9. Report, Ms Chelsey Dewson, 5 July 2019, pars 11-14 (Dewson Report).

    10. Dewson Report, par 14.

Educational/vocational history

32. Ms Dewson again provided an account consistent with other reports. [11] She noted that while Mr Bowen has a “poor attitude to authority”, there are matters “to his credit” including his gaol work history, skills development, and proactive steps taken to obtain employment. [12]

    11. Dewson Report, pars 15-20.

    12. Dewson Report, par 20.

Relationship history and social functioning

33. Ms Dewson summarised that Mr Bowen has been taking steps to extend his social support network since his release, including with a mentor from Kairos Prison Ministry Australia (an interdenominational Christian ministry), [13] but that he has an acrimonious relationship with his family and the recent death of his foster mother has left a void in his support network. [14]

    13. Dewson Report, par 25.

    14. Dewson Report, par 24.

34. Ms Dewson noted that Mr Bowen conceded his past relationships were unhealthy, but disclosed he had recently entered a relationship with a 25-year-old woman with two children – which at the time of the interview had not been disclosed to supervising officers [NB: the relationship was disclosed to the departmental supervising officer (DSO) on 21 June 2019]. [15] Ms Dewson noted that Mr Bowen said he had “no respect” for the CSNSW professional supports – which she considered to “reflect his greater antiauthoritarian beliefs rather than any individually based conflict” – but remarked that he was actively engaging with a community-based psychologist. [16]

    15. Dewson Report, pars 26-27.

    16. Dewson Report, par 28.

Drug and alcohol/gambling history

35. Ms Dewson’s account of Mr Bowen’s substance issues was consistent with other reports. She noted that Mr Bowen could “identify the link between his alcohol consumption and offending behaviour”, and reported that he intended to remain abstinent, although he would like to drink modest amount of alcohol socially. [17]

    17. Dewson Report, pars 29-31.

36. In contrast to other reports, Ms Dewson reported that Mr Bowen had provided a “vague” account about his gambling – which commenced recently when the “ESO matters came about”. She inferred that this was related to poker machines, and notes that Mr Bowen had used the “Sportsbet” application at “times of increased psychological stress”. She reports that Mr Bowen wants to replace gambling with gaming, which suggests “some insight into the benefits of reducing his gambling behaviour”. [18]

    18. Dewson Report, pars 31-32.

Psychological assessment

37. Ms Dewson provided an account of Mr Bowen’s psychological history. [19] Ms Dewson considered that at present, Mr Bowen did not present with any “clinical psychopathology”. She noted that he had a history of “chronic depression which appears to be in remission” and that he had “adverse personality traits relating to antisocial behaviour”, although she could not diagnose a personality disorder at this time. She also noted Mr Bowen’s previous suicide attempts, but was unable to assess his trauma history as he was not forthcoming, although this was being addressed with his community-based psychologist, Mr Kirton. Ms Dewson went on to note some past psychological assessments that had been conducted in relation to Mr Bowen. [20]

    19. Dewson Report, pars 33-37.

    20. Dewson Report, pars 38-42.

Attitudes to offending

38. Ms Dewson summarised Mr Bowen’s offending in a table, and then elaborated on the incidents from pars 43-47.

39. In relation to the murder, Ms Dewson noted that Mr Bowen said his memory of the event was “vague” and that he relied on official documents to assist his recollection. She noted that Mr Bowen made no overt attempts to “minimise, deny or justify this offence”, acknowledged the role of cannabis in the offending, and that he “lost control”. He expressed remorse and “reflected on the sociomoral impact of his behaviour”. [21]

    21. Dewson Report, par 46.

40. In relation to the index offence, Ms Dewson set out Mr Bowen’s account of the offence at par 48, in which Mr Bowen reported that he “saw red”, but that he now expressed remorse and could see how he could manage his distress in an alternative way.

Incarceration and programs

41. Ms Dewson provides an account of Mr Bowen’s behaviour and participation in rehabilitation programs while incarcerated. [22] She wrote that Mr Bowen participated in the Violent Offenders Therapeutic Program (VOTP) (which he completed between 13 September 2017 and 17 May 2018) and could reflect on the treatment gains associated with the program.

    22. Dewson Report, pars 49-56.

Supervision

42. Ms Dewson discussed Mr Bowen’s responses to supervision under parole, [23] summarising as follows: “it appears that Mr Bowen has generally been compliant with rules, although has had difficulty within interpersonal interactions with supervising staff and likely continues to have difficulty accepting direction from people in authority”. [24] She noted that Mr Bowen has been compliant with his apprehended violence order (made for the protection of the victim of the grievous bodily harm offence). [25]

    23. Dewson Report, pars 57-59.

    24. Dewson Report, par 58.

    25. Dewson Report, par 59.

Release

43. Ms Dewson noted that Mr Bowen “appears to have made genuine attempts to integrate into the community and establish himself a positive life”, including returning to leisure activities, employment and psychological assistance, and reports that he has said he “wants to move on” with his life. [26] She qualified this, however, by noting that the progress has been made under ongoing ISO (and parole) supervision and this progress may not have occurred without it. [27]

    26. Dewson Report, pars 60-62.

    27. Dewson Report, par 62.

Perception of an ESO

44. Ms Dewson reviewed Mr Bowen’s perceptions of the ESO, including his threat to commit suicide if it is imposed. [28] She said: [29]

“[w]hilst Mr Bowen’s suicide threats likely reflect the distress he is experiencing, they may also serve as an attempt to deter the Order being imposed. Regardless, this highlights ongoing difficulties with emotional regulation and problem solving during difficult times. It is recommended that Mr Bowen’s risk of harm to himself be closely monitored, particular at times of heightened stress and during period of community supervision”.

28. Dewson Report, pars 63-65.

29. Dewson Report, par 65.

Risk assessment

General offending risk assessment (Level of Services/Case Management Inventory – LS/CMI)

45. Ms Dewson assessed Mr Bowen using the LS/CMI tool which resulted in a “Very High risk of general reoffending”. [30]

Violence Risk Scale (VRS)

30. Dewson Report, pars 72-73.

46. Ms Dewson assessed Mr Bowen using the VRS tool, where she set out the various factors, [31] including the static and dynamic factors, as well as his treatment gains, and concluded that “in considering these treatment gains, Mr Bowen is assessed as posing a medium risk of reoffending violently”. [32]

Domestic abuse risk assessment (SARA)

31. Dewson Report, pars 76-78.

32. Dewson Report, par 79.

47. Ms Dewson assessed Mr Bowen using the SARA tool finding that he poses a “high risk of spousal abuse in the future”, and while it appears the risk primarily relates to romantic partners, this risk may also impact children. [33]

    33. Dewson Report, par 82.

Summary of risk assessment

48. Ms Dewson then provided her opinion of Mr Bowen’s risk of violence.

49. She assessed him as being at a “moderate risk of violent reoffending”, [34] noting however that it would be higher in relation to persons known to him and that he would be “most at risk of violence within the domestic/romantic context”. [35]

    34. Dewson Report, par 92.

    35. Dewson Report, par 84.

50. She identified the relevant risk factors as his “cognitive distortions (antiauthoritarian in nature and condoning of violence), poor mental health, substance abuse, entitlement, maintenance of an antisocial peer network and difficulties with emotional regulation”. [36]

    36. Dewson Report, par 92.

51. Ms Dewson noted that Mr Bowen had made some progress in reducing his risk with regard to his dynamic risk factors, and said “[w]hilst a period of supervision will assist Mr Bowen to continue on this positive trajectory, it will be solely up to Mr Bowen to do so in the absence of supervision. This may be difficult given his low levels of personal support and long history of incarceration”. [37]

    37. Dewson Report, par 93.

Whether ESO can manage risk

52. Ms Dewson did not directly address the question of whether an ESO could manage the risk; rather she recommended that Mr Bowen be managed in the community “subject to him implementing the skills learnt in the VOTP and accessing support within his community”. [38] She did not directly say whether this can only occur under an ESO, but it is noted that she later recommended that Mr Bowen regularly attend at VOTP Maintenance in the community, although “this is dependent on him being supervised by CSNSW”. [39]

    38. Dewson Report, par 95.

    39. Dewson Report, par 96.

Conditions and duration

53. Although considering that the conditions as proposed by the State were appropriate, Ms Dewson recommended that they be decreased in restrictiveness over time. [40]

    40. Dewson Report, par 97.

54. Ms Dewson considered the three year duration of the ESO to be appropriate because it provides a sufficient time for engagement with psychologists and VOTP maintenance. Further, she considered it could stabilise him in the community and provide authorities with confidence as to his long-term risk containment. [41]

    41. Dewson Report, par 100.

Report of Mr Michael Kirton, 24 July 2019

55. Mr Kirton interviewed Mr Bowen on 17 July 2019, and took into account counselling sessions conducted from November 2018 to July 2019.

Presentation

56. Mr Kirton noted that Mr Bowen “adopted a style of communication which can present as aggressive”, but explained that Mr Bowen has become more aware of this and has taken steps to improving his communication style. [42] Mr Kirton’s opinion is that his communication approach “is not a sign of underlying aggression in every instance but rather is a learned strategy taken upon after many years of being in fear and in defensive environments”. [43]

    42. Report, Mr Michael Kirton, 24 July 2019, par 3 (Kirton Report).

    43. Kirton Report, par 4.

Relevant personal history

57. Mr Kirton noted Mr Bowen’s account of his childhood, including that his “early life memories are filled with the fear of personal survival and threats to his mother”. The report also notes that Mr Bowen was bullied throughout school. [44]

    44. Kirton Report, pars 10-11.

Psychometric assessment

Depression Anxiety Stress Scale (DASS-21)

58. Mr Kirton scored Mr Bowen using the DASS-21, where his results scored moderate for depression, anxiety and stress. [45]

Trauma Symptom Inventory-Briere (TSI-1)

45. Kirton Report, par 14.

59. Mr Kirton scored Mr Bowen using the TSI-1, in which the results indicated “a classic posttraumatic presentation in that Mr Bowen is reporting both the intrusive and the avoidant components of PTSD”. He goes on to explain that “some of the components of the PTSD are chronic and relate to his extensive early life trauma, fear filled attachment figures, experiencing and witnessing violent relationships and severe bullying incidents at all schools.” [46] (at [20])

    46. Kirton Report, par 20.

Mental health

60. Mr Kirton reported that Mr Bowen does not have mental health diagnoses as under the DSM-V. [47] However, Mr Kirton noted that Mr Bowen presented with a pattern of PTSD, but did not qualify for a diagnosis of PTSD under the DSM because some of the symptoms are not occurring at present. He went on to explain that “the symptoms of this disorder do not present themselves unless there is some stressful reactive event in his life which he has difficulty coping with”. [48] He was of the opinion that as a child, Mr Bowen had anxiety and C-PTSD. [49] C-PTSD is the acronym from “Complex Post-traumatic Stress Disorder which is a disorder that occurs as a result of repetitive and/or prolonged trauma which involves fear and panic in children”. [50]

    47. Kirton Report, par 22.

    48. Kirton Report, pars 26-27.

    49. Kirton Report, par 31.

    50. Kirton Report, par 23.

61. Mr Kirton’s opinion was that Mr Bowen does not have a Borderline Personality Disorder, [51] explaining that BPD symptoms diminish as people mature and as past childhood trauma is healed. [52]

    51. Kirton Report, par 29.

    52. Kirton Report, pars 34-36.

62. He was also of the opinion that Mr Bowen does not have an Antisocial Personality Disorder at present, [53] or an alcohol disorder or substance abuse at present. [54]

    53. Kirton Report, par 26.

    54. Kirton Report, par 30.

63. Mr Kirton stated that the diagnosis of PTSD in Mr Bowen “better accounts for past behaviours than any other diagnosis”, which he opined carried the implication that “[t]he hope for the future is that this is treatable in itself as memories and past events are reconsolidated.” [55]

    55. Kirton Report, at Conclusions and Future Prognosis.

Termination from employment

64. In relation to Mr Bowen’s termination from his employment, Mr Kirton responded to the account set out at par 24 of Dr Martin’s report, and also discussed by Wright J at [74]-[78] in his preliminary judgment. Mr Kirton provided some opinions about Mr Bowen’s personal communication style and noted that following therapy he had demonstrated improvements. [56]

    56. Kirton Report, at 35.

Summary of risk assessment

65. Mr Kirton provided the following in relation to his assessment of Mr Bowen’s risk:

“Other reports include the assertion that under the current tools of assessment of risk, that the risk of Mr Bowen offending is “moderate” risk. (Dr Martin 4, P15) This statistical data is based on historical events which is considered appropriate. His current level of functioning is likely less than this and the question remains is this: because of the current ESO guidance and requirements or has he changed in himself to be less than a moderate risk currently and in the future based on this. There are no absolutes in regard to community safety as there are no absolutes in this speculation for the future.

If he continued as he is then the risk levels are lessened.

In terms of his own rehabilitation then if it proceeds apace with current time frames then it is my opinion, he will gradually become better and better adjusted to the community and personal relationships. The question is whether three years of an ESO is too much for his positive picture of the future to sustain and he might just give up like so many other clients I have had in this position. In giving up they revert to past fears and anxieties and operate from that point in their neuropsychology which inevitably leads to social problems and increases risk for recidivism.

A graded system with clear goals and expected outcomes negotiated with Mr Bowen may be a better solution.” [57]

57. Kirton Report, Q5.1.

66. Mr Kirton then said:

“The assessment of risk is based on statistical probability related to the answers of the instruments used and in addition to the considered opinions of those assessing this. These offer no guarantees for no risk. Certainly, the ESO programme is attributed not unreasonably to account for the possibility of some of the variance in Mr Bowen’s positive current state of consciousness.” [58]

58. Kirton Report, Q7.

Whether an ESO is recommended

67. Mr Kirton considered that Mr Bowen’s “reluctance … to be part of the ESO” made it difficult to assess whether it would “account for future change”. He recommended a “graduated future-based program” as an option that could be more successful – particularly one which aided healing from PTSD. [59]

    59. Kirton Report, Q7.

Results of testing

68. Various tests administered by these experts, and others in previous years that are referred to in the experts' reports, are summarised in the following table. The limitations of using such tools to assess the risk posed by a particular offender are well known and need to borne in mind when considering the critical issue of whether, to a high degree of probability, Mr Bowen poses an unacceptable risk of committing a serious violence office.

Level of Service Inventory – Revised (LSI-R)

Date	Author	Result
26/11/2018	NSW Corrective Services, Probation and Parole Services [60]	Medium risk category
09/08/2016	T Coombs, Windsor Correctional Centre [61]	Medium/high risk category

60. Referred to in Affidavit, Kelli Grabham, 18 July 2019, at par 20 & Annex C/

61. Referred to by Ms Cieplucha at par 65.

Violence Risk Scale (VRS)

Date	Author	Result
05/07/2019	Dewson	Medium
21/11/2018	Cieplucha	Medium
After 17/5/2018	VOTP staff [62]	Medium

62. Referred to by Ms Cieplucha at par 67.

Level of Service/Case Management Inventory (LS/CMI)

Date	Author	Result
05/07/2019	Dewson	Very High Risk of general reoffending

Spousal Assault Risk Assessment – SARA

Date	Author	Result
05/07/2019	Dewson	High risk

Consideration

Rehabilitation

69. There are many positive aspects that can be observed in the progress Mr Bowen has made towards rehabilitation in recent times. For example, he has completed quite a number of courses and programs in custody (see the summary in Ms Dewson's report at par 50). The most significant of these is the eight month VOTP he completed whilst in custody in 2017-8, with largely positive comments about his participation. Other significant aspects include his abstention from substance use, attendance at VOTP maintenance sessions, regular attendance upon his treating psychologist, Mr Kirton, and obtaining employment.

70. There is a question as to whether these steps would have been taken in any event or whether they are, at least in part, attributable to the fact that Mr Bowen has been under supervision. Dr Martin wrote: [63]

“The historical risk factors, which by definition will not change, demonstrate that he is at a heightened risk of future violence. These are offset to an extent by his stability and it is probably a reasonable statement to say that he is at ‘moderate’ risk of future violence, as articulated by Cherice Cieplucha. In my opinion it is reasonable to infer that his more recent stable behaviour is in part due to having had significant structure within the custodial environment, having engaged the VOTP course and having strict conditions of supervision around substance use and relationships. Put simply, if in a less structured environment without supervision, in my view, his risk of violence would increase.”

63. Martin Report, p 15.

Diagnosis

71. There was an issue about whether Dr Martin was correct in making a diagnosis of Anti-Social Personality Disorder. Ms Dewson indicated a preference for such a diagnosis to be made only "after longitudinal assessments of an individual". She added, however, that, "regardless, it is evident that Mr Bowen presents with antisocial behaviour traits". [64]

    64. Dewson Report, par 37.

72. Whether or not such a diagnosis is correct, there is no doubt about Mr Bowen having exhibited anti-social behaviour, impulsivity, and severe violence in the past.

73. Mr Kirton preferred to describe Mr Bowen as having Post-Traumatic Stress Disorder. (He frequently referred to this in his report whilst, curiously, eschewing a diagnosis: "He does not currently meet the full criteria for PTSD, and I have excluded this from his diagnosis" [65] ). However, illustrative of the need to focus upon symptoms and attributes rather than a diagnostic label, Mr Kirton described Mr Bowen as having had symptoms since adolescence which "surface under stress and lead to the variety of criminal activities he has been involved in in his life to date". [66]

    65. Kirton Report, par 29.

    66. Kirton Report, par 33.

Generally as to risk

74. The three experts whose opinions were relied upon by the State (Cieplucha, Martin and Dewson) were virtually unanimous in their assessment of the level of risk that Mr Bowen poses of committing a further serious violence offence. Mr Kirton did not really disagree with such assessments. He wrote: [67]

“Other reports include the assertion that under the current tools of assessment of risk, that the risk of Mr Bowen offending is “moderate” risk. (Dr Martin 4, P15) This statistical data is based on historical events which is considered appropriate. His current level of functioning is likely less than this and the question remains in this: because of the current ESO [sic – ISO] guidance and requirements or has he changed in himself to be less than a moderate risk currently and in the future based on this. There are no absolutes in regard to community safety as there are no absolutes in this speculation for the future.

If he continued as he is then the risk levels are lessened.”

67. Kirton Report, p 20.

75. As to likely scenarios of risk, Ms Cieplucha wrote: [68]

“Based on Mr Bowen’s history of offending, he demonstrates increased potential for violence within the context of interpersonal relationships, and in particular, intimate relationships. He has a history of reactive and impulsive aggression in addition to attitudes that condone and normalise violence. Possible scenarios that may elicit aggressive responses include those where there is real or perceived conflict; when his views are challenged; or as a way of asserting his dominance or having his needs met.

Mr Bowen has a lengthy history of dysfunctional relationships which have been characterised by substance misuse, conflict and aggression. He appears to anger quickly and has reacted with violence in an effort to alleviate distress and resolve conflict. Mr Bowen’s potential for violence is likely to be heightened when he is experiencing stress or conflict in his relationships. Early warning signs may include intimidating or controlling behaviour or verbal abuse.

Based on his history of difficulties coping and managing life stressors (e.g., financial hardship, unemployment or accommodation difficulties), there is the potential for Mr Bowen’s mental health to deteriorate, most likely in the form of depression, prompting him to employ maladaptive copying strategies such as alcohol and/or illicit substance use. A lapse into substance use or a decline in his mental health would indicate a heightened risk for violence, with there being a greater tendency for impulsive, reactive and explosive aggression when disinhibited by the effects of intoxication or substance use.”

68. Cieplucha Report, pars 73-75.

76. Dr Martin noted a number of protective factors, and then wrote, "His risk of violence will increase if in a dysfunctional intimate relationship, if using alcohol and other substances, or if experiencing extreme stress (for instance in an escalating argument with another person)." [69]

    69. Martin Report, p 14.

77. Ms Dewson obtained a history from Mr Bowen in which he described having maintained several long-term partnerships in the past, six of which were cohabiting. He acknowledged that domestic violence was present in each relationship.

78. A number of apprehended violence orders (AVOs) have been made against Mr Bowen. A report by Ms Anita Duffy, psychologist, dated 6 December 2000, includes that Mr Bowen's mother obtained an AVO, presumably after his offence of assault occasioning actual bodily harm in 1998, where his mother was the victim. The report continues with accounts that Mr Bowen gave of a number of past relationships in which there was turbulence and, in respect of three partners, where AVOs against him were obtained. The grievous bodily harm offence in 2015 occurred in a similar context and another AVO was obtained. I have mentioned above that it was an agreed fact that this offence was preceded by numerous physical assaults over several months.

79. Ms Dewson's assessment was that Mr Bowen "poses a high risk of spousal abuse in the future". [70] She said that he "appears most at risk of violence within the domestic/romantic context". [71]

    70. Dewson Report, par 82.

    71. Dewson Report, par 84.

80. It is clear that ongoing abstinence, particularly in relation to alcohol, is an important factor for Mr Bowen in reducing risk. Ms Cieplucha wrote, "Given the past relationship between substance use and violence, ongoing abstinence will be important if Mr Bowen is to have a chance at successful community reintegration". [72] Dr Martin was of the same opinion. He wrote: [73]

"Substance use disorders should be considered a chronic vulnerability."

and:

"In my view, it is reasonable to accept that given Mr Bowen's history and problems controlling his behaviour, that substance use will remain a significant vulnerability for him for the rest of his life".

72. Cieplucha Report, par 82.

73. Martin Report, p 13.

81. Mr Bowen has expressed his confidence in remaining abstinent from alcohol to the various authors of the reports before the Court, but there appears to be a question as to the degree to which he understands the importance of this. He regularly attended licensed premises during the eight month period in which he was on parole. There is no suggestion that he consumed alcohol and, presumably, his purpose was to play poker machines. He said to Dr Martin that it was his preference to be allowed to drink a glass of wine with dinner on occasion. [74] Similarly, he told Ms Dewson that "he would ideally like to drink small quantities of alcohol socially". [75]

    74. Martin Report, p 13.

    75. Dewson Report, par 31.

Past periods of supervision in the community

82. Counsel for the State pointed out in her submissions that Mr Bowen had spent a lengthy period of time in custody, with only a relatively small period of time in the community. His custodial history shows that since he went into custody on 5 September 1999 following the murder, he has only been in the community for five months in 2013 and six months in 2014-2015, prior to being released most recently on parole on 25 September 2018. In light of this, it must be accepted that reintegration in the community is not an easy task.

83. Mr Bowen has struggled with reintegration in previous instances of release from incarceration. His first release on parole in 2013 is said to have seen a return to alcohol use. When Mr Bowen was released on parole at the end of 2014, he moved in to the home of the woman who, six months later, was to become the victim of the grievous bodily harm offence. He told Dr Martin that this offence was not attributable to alcohol. [76] He told Ms Dewson it was "because she caused me so much trouble". [77]

    76. Martin Report, par 16.

    77. Dewson Report, par 48.

Progress under current period of supervision

84. There has been no suggestion of any physically violent conduct by Mr Bowen in the period since his release last year. It is difficult to discern whether that is attributable to what he has learned from the various programs he has undertaken and the counselling he has received, to the fact that he has been under close supervision, to the particular circumstances in which he has been living, or to a combination of such matters.

85. Dr Martin wrote, "In Mr Bowen's case, it is likely that he will always be prone to being impulsive, reckless and potentially resorting to violence in the context of interpersonal conflict, based on his history to date. That being said, it is also possible for a person to moderate their behaviour over time and as a rule, anti-social people become less violent and learn to moderate their behaviour as they mature" (emphasis added). [78] In terms of "maturity", it may be noted that Mr Bowen is now aged 51; at the time of the murder he was aged 31; and at the time of the grievous bodily harm offence he was aged 47.

    78. Martin Report, p 13.

86. In his report, Mr Kirton indicated the positive progress Mr Bowen was making, but at the same time indicated that rehabilitation was not a short term project:

In the context of Mr Bowen's positive progress under Mr Kirton's treatment plan: "I believe the treatment plan is slowly working …" [79] (Emphasis added)

"In terms of his own rehabilitation, then if it proceeds apace with current time frames then it is my opinion he will gradually become better and better adjusted to the community and personal relationships". [80] (Emphasis added)

"If or when Mr Bowen gradually heals from his lifelong patterns of PTSD and the underlying symptoms, then he will progress positively as he learns to fit into a community connection in positive ways that he has not been able to achieve in the past". [81] (Emphasis added)

79. Kirton Report, p 15.

80. Kirton Report, p 20.

81. Kirton Report, p 21.

87. Mr Kirton favoured at least some continuing level of supervision for Mr Bowen. He referred to him having always requested ongoing counselling but wrote: [82]

"The question as to whether he would continue counselling is a difficult one. Generally, I would seek mandatory counselling for some time so the decision about attendance is removed from the counselling relationship". (Emphasis added)

and

"Taken on what he says, he would continue counselling without the supervision of an ESO. Considering Mr Bowen's history, I would prefer to see counselling mandated with someone of his choice for the immediate future."

82. Kirton Report, p 17.

Evidence as to Mr Bowen's negative attitude to the prospect of an ESO

88. Turning to matters more relevant to the discretion as to whether an ESO should be made, Mr Bowen has consistently and persistently expressed a negative attitude to the prospect of an ESO being made. For example, Dr Martin wrote: [83]

"He expressed some unhappiness with the proposed ESO in relation to the restrictions and expressing a lack of respect for Corrective Services generally."

83. Martin Report, p 17.

89. Ms Dewson wrote that he had "no respect" for Community Corrections officers and his supervisor under the ISO. She wrote: [84]

"It appears that his views on these supports reflect his greater antiauthoritarian beliefs rather than any individually based conflict".

84. Dewson Report, par 28.

90. It is, however, notable that while expressing such negative attitudes, Mr Bowen has in fact been largely cooperative with supervision over past 10 months or so, although Ms Dewson wrote: [85]

"[I]t appears that Mr Bowen has generally been compliant with rules, although [he] has had difficulty within interpersonal interactions with supervising staff and likely continues to have difficulty accepting direction from people in authority".

85. Dewson Report, par 58.

91. Ms Dewson also noted: [86]

“Perception of an ESO: According to Mr. Bowen, he is not willing to accept being subject to an ESO, stating that it is 'all about control, and I’m over it'. He wasn’t able to identify any need [or] benefits to the Order, commenting that he has 'no respect for CSNSW or the Police as they won’t let me go'. Mr. Bowen specifically expressed feeling 'pressure' associated with the ESO conditions and is afraid of being returned to custody for an accidental breach. He also expressed concern about his capacity to form friendships, maintain positive psychological health and perform vocationally under the restrictions of the ESO.

According to Mr. Bowen, he feels so strongly about the ESO and the negative impact that this will have on his life that he intends to 'commit suicide' should it be imposed. He stated that he 'can’t even think about living a life subject to these conditions' and subsequently has 'googled' methods of asphyxiating in a vehicle. Throughout the interview, he stressed that he was 'not suicidal', but rather viewed this as his only option in the presence of further supervision.

Whilst Mr. Bowen’s suicide threats likely reflect the distress he is experiencing, they may also serve as an attempt to deter the Order being imposed. Regardless, this highlights ongoing difficulties with emotional regulation and problem solving during difficult times. It is recommended that Mr. Bowen’s risk of harm to himself be closely monitored, particularly at times of heightened stress and during periods of community supervision.”

86. Dewson Report, pars 63-65.

92. Mr Kirton noted that Mr Bowen had complained about being subject to the ISO "and at some points he has been depressed about it and says he loses hope for the future. Currently he is not exhibiting these symptoms". He then referred to specific aspects that were the cause of resentment but added that "This is something he is working on in counselling". [87]

    87. Kirton Report, p 18.

Discretion to make order

93. Counsel for Mr Bowen accepted that his negative attitude towards the making of an ESO was relevant to the discretionary aspect of whether an order should be made, even if the test in s 5B(d) of the Act is satisfied. She submitted that placing Mr Bowen on an ESO would be counterproductive and militated against the making of an order. She referred to State of New South Wales v Naaman (No 2) [2018] NSWCA 328 as a case where the discretion to make an order was not exercised where the high degree of probability that the defendant posed the relevant unacceptable risk was substantially the same or even greater if he were kept under supervision. [88]

    88. Tcpt, 7 August 2019, pp 71-72.

94. The Court of Appeal in that case was concerned with the Terrorism (High Risk Offenders) Act 2017 (NSW), s 20 of which is in similar terms to s 5B of the Act. In fact, s 20(d) is almost identical to s 5B(d) in empowering the Court to make a supervision order if "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order", the only difference being the reference to "a serious terrorism offence" as opposed to "another serious offence". The Court described the elements of the provision as follows (at [29]):

“(1)   First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction.

(2) Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur.

(3) Thirdly, par (d) requires the Court to be satisfied to a “high degree of probability” of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court’s state of satisfaction to be “to a high degree of probability”.

(4)   Fourthly, that forward-looking evaluation turns upon the premise that the eligible offender is “not kept under supervision under the order” which the State is seeking. On that premise, the Court is then required to determine the “risk of committing a serious terrorism offence”. It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct.

(5)   Fifthly, the Court is then to determine whether that risk is or is not “unacceptable”. It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not “unacceptable” is not otherwise defined in the Act.

(6) Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order.”

95. It was the sixth element to which counsel for Mr Bowen referred. Counsel for the State responded that the present case is not suggested to be one where there is a similar or greater risk of a defendant committing a serious offence even if kept under supervision; the asserted counter productiveness is more concerned with Mr Bowen's responsiveness to treatment and, based on what he told Ms Dewson, harm to himself.

96. The primary judge in that case declined to make an order because the criterion in s 20(d) was not made out. The Court of Appeal held that he was correct to do so and the appeal was dismissed. But in disposing of the matter the Court observed (at [98]):

"We are conscious of the risk of a person who is mentally unwell committing a spontaneous act of serious violence. Some of the acts of terrorism committed in Australia have been committed by people who are mentally ill. However, even if there were evidence to suggest that the respondent might engage in the conduct mentioned in the State's submission, there is nothing to suggest that the conditions imposed by an extended supervision order would reduce that risk from manifesting."

97. That observation is not pertinent to the present case. I am not satisfied that the asserted counter productiveness of making an order would justify the Court exercising its discretion to decline to make an order in this case. That is primarily because of the need to have regard to the paramount consideration stated in s 9(2) of the Act, "the safety of the community".

98. It is pertinent in this regard to note Dr Martin's opinion: [89]

“Risk of future violence will be managed to an extent by supervision. However, as Mr Bowen articulates himself, such conditions will not prevent future violence and this will be dependent on his own behavioural control. For instance, none of the proposed conditions will prevent in absolute terms the possibility of interpersonal conflict. That being said, the proposed conditions around substance use for instance will mitigate violence risk to a degree. Monitoring of intimate relationships will also mitigate to a degree potential problems although cannot prevent in absolute terms potential violence. I am not aware of other treatment or rehabilitation options available other than by way of an ESO. For instance, he would not be appropriate for management under the Mental Health Act, given that he does not have a major mental illness. An ESO would potentially give structure and direction for him to engage in appropriate services around his criminogenic needs, such as substance use and behavioural problems.”

89. Martin Report, p 16.

99. Further, Ms Dewson wrote: [90]

“To remain offence free in the future, Mr. Bowen will likely need to manage his mental health, refrain from substance abuse, form positive social relationships, manage his emotional reactions and challenge any cognitive distortions. Given his previous difficulties within romantic relationships, it is strongly recommended that Mr. Bowen access professional services to support him transitioning into any romantic relationships (be it from within CSNSW or the community such as Relationships Australia). It is further recommended that he continue to maintain these professional relationships as a means for him to access support during times of conflict or interpersonal difficulty.”

90. Dewson Report, par 88.

100. The prospect of Mr Bowen pursuing what Ms Dewson referred to there would be greatly enhanced by the Court making an ESO, rather than it declining to do so as a matter of discretion. The potential consequences of there being no order and Mr Bowen regressing in his rehabilitation are too serious. To reiterate, the experts are as one in their assessment of his level of risk. Of particular concern is the assessment of there being a "high risk of spousal abuse in the future". Having regard to the potentially severe consequences of violence perpetrated by Mr Bowen, as demonstrated by past conduct, this is of such importance that leaving it up to him to seek out the assistance he needs is not consonant with community safety.

Conclusion

101. I am satisfied that in relation to future violent offending Mr Bowen has a significant risk of recidivism but it is by no means at a high level. However, past behaviour has shown that he has a propensity for violence that has had severe or catastrophic consequences.

102. The evidence has led me to the confident conclusion that there is a high degree of probability that Mr Bowen currently poses a risk of committing a further serious violence offence if he is not kept under supervision. The potential severity of the consequences of further violent offending takes the risk to a level that is unacceptable.

103. This is certainly not destined to be an enduring state of affairs. It is far from hopeless. Mr Bowen must be commended for the progress he has made to date and it is to be hoped that he continues to take advantage of treatment of the type he has been receiving in recent times. His psychologist has expressed the opinion that "the hope for the future is that [his condition] is treatable". [91] The hope for Mr Bowen, and in turn for the safety of the community, is that such optimism is borne out.

     91. Kirton Report, p 24.

Conditions

104. Schedule A to the initial Summons set out 51 proposed conditions for an ESO. The Amended Summons annexed a Schedule of 48 proposed conditions. After there was some debate at the preliminary hearing concerning various objections, the ISO made by Wright J was subject to 37 conditions.

105. For the final hearing, the State provided a revised Schedule of 46 conditions in the annexure to the Further Amended Summons. Counsel for Mr Bowen took objection to 21 of them, contending that they should either be deleted or amended.

106. In consideration of the appropriateness or otherwise of the conditions of such an order, it is necessary to have regard to s 11 of the Act which deals with conditions that may be imposed and, once again, it is essential to bear in mind the paramount consideration of community safety.

107. The court-appointed experts were each asked for their opinion about the proposed conditions. Dr Martin responded: [92]

“My opinion is that while it is likely that the ESO will cause him some stress and potentially could lead to interpersonal conflict, the main weight of his risk of violence relates to his history, personality style and in particular, issues that he has with interpersonal functioning, including but not limited to intimate relationships.”

92. Martin Report, p 17.

108. Ms Dewson said: [93]

“These conditions appear appropriate. It is recommended that these conditions decrease in restrictiveness over time, specifically in response to positive behaviour and community engagement.

No amendments to the proposed conditions are recommended. My recommendations are noted in paragraph 96.”

93. Dewson Report, pars 97, 99.

109. Very detailed and extremely thorough written submissions were provided by counsel for Mr Bowen. They were supplemented by some further oral submissions at the hearing, and counsel for the State provided her response. Having regard to the urgency with which it is necessary to deliver this judgment before I embark upon an extended period of unavailability, I do not propose to discuss the submissions in detail. My reasons and conclusions will be indicated with the assurance that all of the submissions have been considered closely.

Electric monitoring

110. The most controversial of the proposed conditions concerned electronic monitoring. This is proposed condition 4 in the Schedule:

"The defendant must wear electronic monitoring equipment as directed by the DSO or any other person in the employ of CSNSW supervising him."

111. The benefits of electronic monitoring were discussed by Mr Corcoran in the Risk Management Report: [94]

●   Electronic monitoring would allow Community Corrections and the EEMU to identify any access to known high risk locations, such as may bring him into contact with the Apprehended Violence Order Person In Need Of Protection, and/or locations where “there is real or perceived conflict”.

●   Electronic monitoring would allow Community Corrections to impose exclusion zones should high risk environments be identified, and to monitor any breach of these zones.

94. Corcoran Report, p 8.

112. However, Mr Corcoran also wrote: [95]

"This strategy (monitoring and schedules) will neither prevent any high risk situations or offending behaviours whilst engaging in an approved activity or in his home".

95. Corcoran Report, p 8.

113. It is implicit in the way the condition has been stated that electronic monitoring would not be mandatory, but would be something that will be required if the DSO directs.

114. Ms Kelli Grabham, a senior officer with the Extended Supervision Order Team, provided evidence as to the implementation of ESOs. She said in her affidavit in relation to this condition: [96]

"Proposed Condition 4 provides the DSO with the ability to direct the Defendant to wear electronic monitoring equipment.

I understand that Proposed Condition 4 is a condition which can be implemented at the discretion of the DSO."

96. Affidavit, Kelli Grabham, 18 July 2019, pars 26-27.

115. This clearly implies that a discretionary evaluation of the particular circumstances of the defendant is made and a decision then taken as to whether to direct that electronic monitoring be required. However, Ms Grabham annexed a document to her affidavit setting out "the ESO monitoring stages matrix". It provides that there are four "ESO Monitoring Stages" and that: [97]

"All ESO offenders must commence their order on ESO Monitoring Stage 1".

97. Ibid, annexure E.

116. Stage 1 involves electronic monitoring. So too do Stages 2 and 3. It is only when a person is progressed to Stage 4 that "No" appears in the "EM" column.

117. Ms Grabham's affidavit continued with an explanation of how electronic monitoring stages may be "progressed, regressed or varied". There is a "bi-monthly case plan review" as well as a "quarterly case management review meeting". An offender subject to electronic monitoring "will have their case reviewed and the appropriateness of their stage of electronic monitoring will be considered". Ms Grabham added in this context that, "Electronic monitoring is usually relaxed over time". [98]

     98. Ibid, pars 29-31.

118. Ms Grabham was required for cross-examination and I readily acknowledge that she gave her evidence in a very honest and sincere fashion. She conceded that she had said in another case, that "the majority of offenders will stay on Stage 1 between six to 12 months". [99] She also accepted that it "would be unusual for electronic monitoring to be fully withdrawn if a person was halfway through an order", and she agreed that the majority would be subject to such monitoring for at least half their order. [100]

     99. Tcpt, 7 August 2019, pp 40-41.

     100. Tcpt, 7 August 2019, p 42.

119. Ms Grabham gave a very detailed answer in order to explain the review process. It is unnecessary to refer to all of the points that she made except to note that in cases where there was support for the withdrawal of electronic monitoring by those more closely associated with the supervision of an offender, "higher management" or ultimately an Assistant Commissioner may still reject any such recommendation. [101]

     101. Tcpt, 7 August 2019, p 42(24).

120. In re-examination, Ms Grabham confirmed that the time during which Mr Bowen has been subject to electronic monitoring already, pursuant to his parole and now the ISO, would be taken into account in any consideration of whether to impose electronic monitoring under an ESO and, if so, for how long. [102] The prospect that "political consequences" [103] may influence a proper exercise of discretion cannot, however, be discounted.

     102. Tcpt, 7 August 2019, p 50-51.

     103. Tcpt, 7 August 2019, p 58(3)

121. The court-appointed experts were not in favour of electronic monitoring. Dr Martin agreed that with a proposition that it "will not have the material effect of reducing Mr Bowen's risk of violence". [104] Ms Dewson thought "it's very limited in its effectiveness". [105] Mr Bowen's risk is more associated with situational circumstances occurring in his day-to-day functioning and his difficulty with emotional regulation. Further, the stigmatising effect could be counterproductive, making Mr Bowen more anxious or distressed, thereby reducing the emotional resources available to him to deal with interpersonal scenarios giving rise to actual risk. [106]

     104. Tcpt, 7 August 2019, p 21(7).

     105. Tcpt, 7 August 2019, p 21(11).

     106. Tcpt, 7 August 2019, p 21.

122. Subject to one matter, there is nothing in Mr Bowen's past offending that gives rise to any concern that his risk of offending would be elevated if he attends particular places. In that sense, the case may be contrasted with the more commonly encountered case of a child sex offender where a number of place restrictions should be imposed.

123. The one exception in relation to place restrictions for Mr Bowen is the local government area of Randwick City Council. It was a condition of parole for the grievous bodily harm offence that he not be within that area and that was to reduce the possibility of him coming into contact with the victim. Electronic monitoring has been used to enforce that exclusion. It is noted, however, that there remains an AVO in place for another 2½ years that includes a condition to similar effect.

124. I am not persuaded that the inclusion of an electronic monitoring condition – which will most likely be implemented immediately – is warranted in this case. I propose, however, to include conditions that provide that it may be implemented in the event of any breach occurring, at the discretion of the supervising officer. This will be the same as the State has conceded is appropriate for a requirement that Mr Bowen obtain pre-approval of weekly schedules of movements.

Other conditions

125. The State conceded that Proposed Condition 13 relating to visitors to the home be amended as suggested by counsel for Mr Bowen. [107] That concession is accepted.

     107. Defendant’s written submissions, par 112.

126. The other objections will not be upheld. Most were concerned with amendments to require directions to be "reasonable" or allowing for breaches if there is a "reasonable excuse". The Court is entitled to expect that orders such as these will be interpreted responsibly and with common sense. Breaching an offender because, in one of the examples suggested, he or she was late to an appointment as a result of being stuck in traffic would be absurd.

127. A requirement to provide information about financial affairs was opposed but there is a legitimate basis for it. It would be important for the supervising officer to have some idea about such matters, given Mr Bowen’s past experience of coming into conflict with others as a result of a dispute about money – which was the background against which the offence of murder was committed. Mr Bowen's reluctance to be completely candid with Ms Dewson about his poker machine gambling also suggests that oversight is appropriate.

128. A condition that Mr Bowen is not to enter licensed premises was objected to. However, having regard to the fact that the condition includes the phrase, "without prior approval", it should remain. It is of note that he has received approval under the ISO to attend a number of hotels.

129. A condition requiring Mr Bowen to inform his DSO of entering into a "close personal relationship (including an intimate, employment or other relationship) with someone" should remain. This is important for a person with significant interpersonal and relationship difficulties, which are not limited to intimate relationships. I am satisfied that the condition is framed in terms that are clear enough.

Duration

130. The State seeks an order for a duration of three years. This was opposed but the evidence of the court-appointed experts that it was an appropriate period was not challenged. [108] It is, in my own assessment, an appropriate period.

     108. Martin Report, p 18; Dewson Report, par 100.

Orders

131. I make the following orders:

1.   Pursuant to s 5B and s 9(1)(a) of the Act the defendant be subject to an extended supervision order for a period of 3 years from today.

2.   Pursuant to s 11 of the Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to the Further Amended Summons, subject to the modifications referred to in this judgment (at [124]-[125]).

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Endnotes

Decision last updated: 09 August 2019