State of New South Wales v Carney (Final)

[2019] NSWSC 1124

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Carney (Final) [2019] NSWSC 1124
Hearing dates:	30 August 2019
Date of orders:	12 September 2019
Decision date:	12 September 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	The proceedings are dismissed.
Catchwords:	HIGH RISK OFFENDER – Where defendant had history of violent offending – Where Extended Supervision Order was sought for a period of 3 years – Where the defendant had been at large in the community for a significant period – Where the defendant had a significant support network available to him including both lay and professional assistance – Where the defendant was also subject to a Community Treatment Order – Whether the Court could be satisfied to a high degree of probability that there was an unacceptable risk of the defendant committing another serious offence if not kept under supervision pursuant to an ESO – Where both parties accepted that there was a risk – Where the Court could not be satisfied that the risk was an unacceptable one – Proceedings dismissed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Carney v R; Cambey v R [2011] NSWCCA 223 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWSC 57 R v Carney; R v Cambey [2012] NSWSC 1344 State of New South Wales v Carney [2019] NSWSC 622 State of New South Wales v Hill [2016] NSWSC 913 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Category:	Principal judgment
Parties:	State of New South Wales – Plaintiff Todd William Carney – Defendant
Representation:	Counsel: J Single – Plaintiff K Stares – Defendant     Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid NSW – Defendant
File Number(s):	2019/46110
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By a further amended summons dated 21 August 2019, the plaintiff seeks orders:

1. pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 NSW (“the Act”), that the defendant be subject to an extended supervision order (“ESO”) for a period of 3 years from the date of the order; and

2. pursuant to s 11 of the Act, that the defendant be directed, for the period of the extended supervision order, to comply with conditions set out in Schedule A to the further amended summons.

2. It should be noted that since the commencement of the proceedings, the plaintiff has amended Schedule A by removing a number of the conditions which were originally sought. [1] Those amendments reflect the fact that the defendant is currently in receipt of treatment, and is subject to a protective regime which has been implemented and supported by a number of persons, including, in particular, his mother. That regime includes a Community Treatment Order (“CTO”) which I have discussed further below.

   1. Affidavit of Kelli Grabham of 9 August 2019 at [5](a)-(m).

3. On 28 May 2019 Garling J made an order that the defendant be subject to an Interim Supervision Order (“ISO”) on and from 24 June 2019. That order expires on 15 September 2019. On that occasion his Honour also ordered, pursuant to s 7(4) of the Act, that two qualified psychiatrists, psychologists, or any combination of such persons, conduct separate examinations of the defendant and furnish reports to the court as to the result of the examinations. [2] Pursuant to that order, the Court has received reports from Dr Adam Martin, Psychiatrist, of 29 July 2019, and Dr Richard Furst, Psychiatrist, of 1 August 2019.

   2. State of New South Wales v Carney [2019] NSWSC 622.

THE EVIDENCE

4. The following affidavits were read by the plaintiff:

1. Samuel Ardasinski of 7 December 2018;

2. Johanna Fisher of 11 February 2019;

3. Johanna Fisher of 30 April 2019;

4. Kelli Grabham of 30 April 2019;

5. Johanna Fisher of 24 May 2019;

6. Johanna Fisher of 7 August 2019;

7. Cherice Cieplucha of 8 August 2019;

8. Kelli Grabham of 9 August 2019; and

9. Johanna Fisher of 21 August 2019.

5. Ms Cieplucha and Ms Grabham gave oral evidence at the hearing.

6. The following affidavits were read by the defendant:

1. Gail Carney of 15 May 2019;

2. Gail Carney of 26 August 2019;

3. Josh Manzione of 23 August 2019; and

4. Christine Hall of 30 August 2019.

7. As previously noted, the Court has also received reports of Dr Martin and Dr Furst. Dr Martin gave oral evidence at the hearing.

THE SCHEME OF THE ACT

8. Section 5B of the Act is in the following terms:

Making of extended supervision orders--unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an "extended supervision order") if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

9. The provisions of 5B require the Court to be satisfied of four matters before the discretion to make an extended supervision order is enlivened, namely that:

1. the defendant is an offender who is serving, or who has served, a sentence of imprisonment for a serious offence, either in custody or under supervision in the community;

2. the defendant is a “supervised offender” within the meaning of section 5I;

3. an application for the order has been made in accordance with section 5I; and

4. the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

10. The term “serious offence” is defined in s 4 of the Act as either a “serious sex offence” or a “serious violence offence”. “Serious violence offence” is defined in s 5A(1) in the following terms:

For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person:

(a)   engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(b)   attempt to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).

11. The satisfaction to a “high degree of probability” which is required by s 5B(d) constitutes a standard of proof which is higher than the civil standard, but lower than criminal standard. [3]

    3. State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14]; Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; State of New South Wales v Hill [2016] NSWSC 913 at [17].

12. The term “unacceptable risk” is not defined in the Act. However, its meaning is to be determined having regard to its context and purpose. [4] In State of NSW v Thomas (Preliminary) [5] Hulme J concluded that a risk will be unacceptable if it is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made. [6]

    4. Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [49] and following.

    5. [2011] NSWSC 118.

    6. See also Lynn at [20].

13. The concept of unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate. [7] A risk is unacceptable if there is a real or substantial chance of it materialising, although the chance of materialisation need not be more likely than not. The question to be determined is whether the Court is satisfied that the facts and circumstances which have been proved provide a firm foundation for a conclusion that there is a real or substantial chance of the defendant committing a serious violence offence if he is not subject to an ESO.

    7. State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71].

14. Counsel for the defendant has expressly conceded each of the matters in [9](a) to (c) above. The only issue for my determination is that in [9](d), namely whether I can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

THE DEFENDANT’S HISTORY OF OFFENDING

15. The following summary of the defendant’s history of offending is not in dispute and is drawn from the written submissions of the plaintiff. [8]

    8. Commencing at [30].

The index offending

16. On 28 January 2006, in the company of a co-offender and a juvenile, the defendant entered the home of another person (“the deceased”) to purchase a quantity of cannabis. He repeatedly hit the deceased with a metal pole. Following a trial, the defendant was found guilty of murder by a jury and was sentenced to imprisonment for 22 years with a non-parole period of 16 years. However, his conviction was quashed by the Court of Criminal Appeal and a re-trial was ordered. [9]

    9. Carney v R; Cambey v R [2011] NSWCCA 223.

17. At his re-trial, the defendant was found not guilty of murder, but guilty of manslaughter. He was sentenced by Schmidt J on 7 November 2012[10] to imprisonment for 9 years with a non-parole period of 6 years. In sentencing the defendant, her Honour concluded that he had engaged in excessive self-defence which was grossly disproportionate to the threat which was posed to him,[11] and had repeatedly hit the deceased in the head with a metal pole, not only when the deceased was standing, but after he had fallen onto a bed. [12]

    10. R v Carney; R v Cambey [2012] NSWSC 1344.

    11. At [11]; [76].

    12. At [31].

18. In terms of the defendant’s mental state at the time of the offending, her Honour said the following: [13]

[66] Ms Durkin was of the opinion that Todd Carney could not be considered to be experiencing a substance induced psychosis when he killed Mr Reid, but his symptoms and conduct suggested that he was suffering from schizophrenia when he offended further in December 2006. That condition had been triggered by his drug use, but it had stabilised with treatment in custody. In the result by 2012 he had not experienced symptoms of schizophrenia for some 5 years, with the result that his risk of violent re-offending had been lowered.

[67] It seems to me on all of the evidence that this view must be accepted. It is consistent with the evidence Todd Carney gave both at trial and on sentencing. That evidence did not leave open the conclusion that Dr Nielssen's 2010 opinion, formed on quite a different history, could be accepted.

[68] As to his prognosis, Ms Durkin was of the opinion that given Todd Carney's family support; limited criminal history, when his mental health was compromised; his positive and pro-social relationships maintained through most of his life; his cessation of substance abuse; lack of custodial misconduct; and that he did not appear to possess anti-social attitudes, his risk factors for further offending were few. At the sentencing hearing Mrs Carney gave evidence supportive of these views.

[69] Ms Durkin recommended however, that Todd Carney's mental health continue to be monitored, because that was his most significant factor for recidivism and that he should engage in drug and alcohol programmes, such as the SMART programme, as well as study or training, which would facilitate his ultimate transition back into the community, including programs to prevent relapse. She observed that his compliance with medication would require long term monitoring.

[70] In the face of all of this evidence, I am of the view that so long as Todd Carney maintains his abstinence from drugs and alcohol and remains compliant with the anti-psychotic medication which has resulted in his mental illness going into remission, he is unlikely to re-offend and has good prospects of rehabilitation. He was aged 18 years at the time he killed Mr Reid and now, at 25, with the treatment he has received and the term of imprisonment which he has and is to serve, he is clearly motivated to ensure that he does not offend again, once released on parole. It is also significant that on his mother's evidence, he has his family's support in achieving his intentions.

[71] While he did not receive the support which he required when he was succumbing to his drug induced mental illness over the course of 2006, both she and his father have undertaken training designed to ensure that they have the skills necessary to provide him with such support in the future. These are all matters which must be taken into account in the sentence which is imposed.

[72] The risk is, of course, that despite all of this, he fails to adhere to his current intentions, when released into an environment which is not structured in the way which has been of obvious benefit to him and where he has access to acquaintances and social circumstances he has identified as having been of considerable negative influence on him in the past.

13. At [66]-[72].

19. Her Honour made it clear[14] that her finding that the defendant had good prospects of rehabilitation was predicated on the assumption that the defendant would be abstinent from drugs and alcohol, and would remain compliant with anti-psychotic medication which had resulted in his mental illness going into remission.

The offending of 26 December 2006 [15]

14. At [81].

15. Exh JF-1 commencing at p. 174.

20. On 26 December 2006 the defendant was pursued by police driving recklessly through red lights and on the wrong side of the road in an effort to avoid arrest. Eventually, the defendant stopped his vehicle. As two policemen approached him, the defendant removed a rifle from his vehicle before running through a vacant area of land next to a bus shelter, where there was a bus carrying several passengers. The defendant fired a number of rounds towards the police. The police took cover behind their vehicle, which was struck by some of the rounds which were fired. The defendant also fired in the direction of a police helicopter which had been deployed to pursue him. During this time he emptied and reloaded the firearm which was in his possession. The defendant had previously called his mother and brother, who eventually came to the vicinity, whereupon the defendant dropped the rifle and was arrested. He later pleaded guilty to the following offences:

1. maliciously discharging a loaded firearm with intent to resist apprehension;

2. possessing an unregistered firearm which was not a prohibited firearm;

3. using an unauthorised firearm; and

4. driving in a manner dangerous to the public.

21. He was sentenced in respect of those matters as follows:

1. as to (i), 6 years imprisonment with a non-parole period of 3 years and 6 months;

2. as to (ii), 6 months imprisonment;

3. as to (iii), 6 months imprisonment; and

4. as to (iv), 2 months imprisonment.

22. All sentences were ordered to be served concurrently.

23. In imposing sentence, his Honour Judge Christie QC found [16] that the defendant was unstable at the time of the offending. In reaching that conclusion, his Honour had regard to an expert report from Professor David Greenberg, [17] who expressed the opinion that although at the time of the offending the defendant was suffering paranoid thoughts, his mental state had since stabilised with psychiatric medication.

The offending of 27 December 2006 [18]

16. Exh JF-1 at p. 179.

17. Exh JF-1 at p. 179.

18. Exh JF-1 at p. 202.

24. On 27 December 2006 the defendant was travelling in a Corrective Services truck when he assaulted another inmate. He pleaded guilty to a charge of assault occasioning actual bodily harm and was sentenced to 8 months imprisonment.

The offending of 24 December 2015 [19]

19. Exh JF-1 at p. 202.

25. On 24 December 2015, whilst working in the kitchen of the Goulburn Correctional Centre, the defendant lunged towards a fellow inmate with a knife following an argument. The victim fell to the floor, following which the defendant stood over him and stabbed him multiple times. The defendant was convicted of one count of reckless wounding and was sentenced to 20 months imprisonment, with a non-parole period of 12 months.

The offending of 26 January 2016 [20]

20. Exh JF-1 at p. 340-347.

26. On 26 January 2016 the defendant allegedly assaulted another inmate while he was in bed asleep. It was suspected that the defendant had taken an illegal substance at the time but no further action was taken in relation to the matter.

The offending of 3 March 2016 [21]

21. Exh JF-1 at p. 206.

27. On 3 March 2016 the defendant was being transported from custody to Nepean Hospital. He was seated in the rear passenger seat of a Corrective Services vehicle and was handcuffed at the front, attached to a waist restraint, and had leg shackles around his ankles. As he was getting out of the vehicle, the defendant broke free of the officers who were escorting him. He ran a distance of 20 metres across a car park before being apprehended. He was convicted of attempting to escape from lawful custody. The matter was disposed of pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

THE PLAINTIFF’S EVIDENCE

28. I have set out the plaintiff’s evidence above. [22] The following aspects of that evidence are of particular significance.

    22. At [4].

The report of Samuel Ardasinski

29. Samuel Ardasinski, a senior Psychologist with Corrective Services NSW, prepared a report dated 13 September 2018. [23] In summary, [24] he concluded that the defendant presented a medium risk of violent re-offending, relative to other male offenders. He considered that the defendant was partially treated with respect to his offending, in the sense that he had completed some intervention aimed at addressing criminal violence, but said that he had done nothing in terms of a relapse prevention plan.

    23. Exh JF-1 at p. 47 and following.

    24. Exh JF-1 at p.48.

30. Mr Ardasinski also noted [25] that the defendant had been formally diagnosed with a psychotic illness when he entered custody, and had been treated with various anti-psychotic medications over the years. He expressed the view that the defendant had had insufficient time, in less restrictive settings, to demonstrate any significant behavioural change. He also expressed the view that if the defendant were subject to an ESO, the mitigation of any future risk may be enhanced by ongoing community supervision and support, in circumstances where he had never been subject to such supervision. He said that the defendant would require assistance to monitor his transition to community-based responsibilities, and to maintain his mental health and behavioural stability.

    25. Exh JF-1 at p. 48.

31. Mr Ardasinski also said: [26]

In the event that Mr Carney is subject to an Extended Supervision Order (ESO), it is likely that he would be subject to strict monitoring, intensive supervision and case management by CSNSW. Under such supervision as could be provided by CSNSW, Mr Carney’s social contact would be scrutinised with the aim of increasing pro-social influences. He may be obliged to wear electronic monitoring equipment and to provide a schedule of his daily activities, which may serve to steer him towards prosocial avenues without resorting to violent crime or drug use. Such monitoring and surveillance would assist him in minimising the risks of Mr Carney returning to problematic drug use – and this is seen as a critical precursor to his most serious violence. Mr Carney would be subject to unannounced home visits and breath-analysis/urinalysis/oral drug-swab tests, which would further minimise the risks that he may return to daily drug use and binge drinking of alcohol in the future. His supportive family would likely be a future protection against these issues.

26. At [59]; Exh JF-1 at p. 64.

32. Mr Ardasinski went on to say: [27]

It may be that Mr Carney could live in the community offence-free. There is no precedent of him living in the community as medicated mental health client and committing violent offences. However, there is precedent in his violence perpetrated against others in custody when his mental health has destabilised, despite him being informed of constant mental health management through daily medication compliance. I would consider that Mr Carney is unlikely to live in the community without any regard for his risk factors for violence, but the supports he has may be insufficient to contain his risks where his mental health to destabilise once more. I consider that he will require some time under supervision in the community with the supports available to CSNSW supervisees in order to consolidate gains he has made in custody in managing his mental health and related risks for violence (e.g. drug use) (emphasis in original).

27. At [64]; Exh JF-1 at p. 66.

The evidence of Ms Cieplucha

33. Ms Cieplucha is the Chief Psychologist of Risk Management Programs at Corrective Services NSW. In that capacity she supervises Mr Ardasinski and is responsible for reviewing his report. On the basis of that report, and the material which had been available to Mr Ardasinski, Ms Cieplucha said in her affidavit: [28]

[17] Overall, the defendant appears to have maintained a comprehensive professional support network since his release from custody. He has participated regularly in Drug and Alcohol counselling through the Community Restorative Centre (“CRC”). He has been subject to a Community Treatment Order (“CTO”) as per the Mental Health Review Tribunal (“MHRT”). Case notes reveal ongoing engagement with the Liverpool Community Mental Health Service and the Clozapine Clinic at Liverpool Hospital, contact with his Psychiatrists in addition to Partners in Recovery Support staff. The defendant has reportedly maintained compliance with his medication regime.

[18] In addition to professional support, the defendant also has the support of his parents, other family and long term friends from school. He has been engaging in community based activities in the company of his supports, including attending a gymnasium. The defendant is in receipt of the Disability Support Pension and they refer all to the National Disability Insurance Scheme (“NDIS”) was commenced earlier this year.

28. At [17]-[18].

34. Ms Cieplucha concluded:[29]

[22] I have considered the reports of Mr Ardasinski, Dr Furst and Dr Martin, in addition to the recent case notes in relation to the defendant’s behaviour. Overall, the opinions expressed were generally consistent regarding the most likely scenario for future violence, which relate (sic) to the defendant’s history of serious mental illness and substance use. Official departmental records indicate that the defendant is currently demonstrating behavioural stability and he is compliant with his supervision and reporting obligations. In my opinion, the conclusions regarding the defendant’s level of risk and needs and the recommendations provided by Mr Ardasinski, remain valid.

29. At [22].

35. When cross-examined, Ms Cieplucha confirmed her view that the defendant’s current support network was “comprehensive” [30] and said that she understood that it included: [31]

……. his family and, in particular, his mother and father. From a mental health perspective, the mental health team out at Liverpool and also the Clozapine Clinic at Liverpool, in addition to a Partners in Recovery support worker, a psychiatrist, a drug and alcohol counsellor and personal supports as well in terms of friends.

30. T19.10.

31. T19.11-T19.15.

36. Ms Cieplucha accepted [32] that few persons in the defendant’s position had as comprehensive a support network available to them. She also accepted [33] that her review of case notes indicated that the defendant was maintaining compliance with his medication regime, and [34] that the defendant was currently behaviourally stable, and compliant with supervision and reporting obligations. She was then asked: [35]

Q. Is there anything that you foresee from the comprehensive list that you have described earlier, is there any other support that is missing from here?

A. I think currently the supports that are in place are appropriate based on the identified risk issues, those being in particular Mr Carney's mental health and substance related concerns as well.

32. T19.20-T19.22.

33. T19.24-T19.29.

34. T20.1-T20.21.

35. T20.23.

37. In re-examination, Ms Cieplucha clarified that her opinion as to the appropriateness of the defendant’s current support network assumed the inclusion of support from the team which would administer any ESO: [36]

    36. Commencing at T20.32.

Q. When you said that the current support that is currently in place is appropriate, does that include the support from the ISO Team?

A. Yes, it does.

Q. And what support is the ISO Team providing, to your knowledge?

A. So the supervision team would be providing case management and supervision and monitoring as well, and being an additional support on top of those that are provided from a mental health and substance abuse perspective, and his family.

HIS HONOUR

Q. He would otherwise be under a fair degree of supervision in one way or another, would he not?

A. Yes, that's correct.

The evidence of Ms Grabham

38. Mr Grabham is the Operational Governance Officer of the Extended Supervision Order team in Corrective Services, NSW. In her first affidavit, she set out the nature and extent of the supervision implemented by her team in respect of offenders who are subject to an ESO. In her second affidavit, Ms Grabham explained[37] that the conditions which were originally sought to be imposed on the defendant had been amended, and “tailored to the defendant’s unique circumstances and identified risk factors, taking into account matters raised in the expert reports”. Ms Grabham also said: [38]

ESO would allow for stages of progression which would enable the defendant to be tested in the community whilst still be supported by CSNSW. If the Court determines no ESO is required when the defendant faces challenges in life and other aspects of his life, his support network is limited to his family unit. It is noted that whilst they are currently a firm source of support, if they were not available the defendant is essentially left to his own devices. With an ESO an additional level of support is provided via an ongoing basis for the duration of the order assisting the defendant to learn appropriate coping mechanisms for life challenges and explore solutioning problems he may encounter without potentially increasing his risk of serious re-offence or risk to community safety.

37. Commencing at [5].

38. At [11].

39. In cross-examination, Ms Grabham acknowledged [39] that the defendant had a comprehensive regime of treatment providers at the present time, and that no services had been added by her team during the recent period during which the defendant had been subject to the order made by Garling J. She also accepted that:

1. the guidance and support provided by her team would, at least in part, take the form of encouraging the defendant to comply with his existing treatment regime; [40]

2. employment was not currently envisaged for the defendant given his high dosage of medication; [41] and

3. in the event that her team was concerned about any risk posed by the defendant, they would refer him to a community mental health team, the members of which would include his current treatment providers. [42]

   39. T22.13-T22.15.

   40. T22.38-T22.40.

   41. T22.46-T22.49.

   42. T23.8-T23.20.

40. Ms Grabham was then asked: [43]

Q. So essentially, what the ESO Team are suggesting is appropriate is checking in on him weekly and contacting any services should they be concerned about a deterioration of his mental health?

A. If by "checking him" you mean supervising him through weekly face to face contacts and engagement with himself, his family and the stakeholders involved, yes.

43. Commencing at T23.22.

41. Ms Grabham accepted [44] that the defendant’s current support network included his parents, his extended family, a Community Mental Health Team, the Clozapine Clinic, personnel from “Partners in Recovery” (an organisation providing support to persons suffering from mental illness), a General Practitioner, a Psychiatrist, a drug and alcohol counsellor, and two case managers. In these circumstances, Ms Grabham’s attention was drawn to that part of her second affidavit[45] in which she had asserted that the defendant’s support network was limited to his family unit: [46]

    44. T23.47-T24.43.

    45. At [11].

    46. T24.45-T25.31.

Q. You agree with me that his support network, as we've just stepped through, has far more than just his family unit available to him?

A. He has a large support network when in relation to the information in the affidavit, I am referring to his immediate support network, and those are the people that are available on a 24 hour basis, so the support networks outside of that immediate unit are not always available on a 24 hour basis. Mental health is. As we know, they can be contacted on a 24 hour basis. But the clinic is not necessarily available on a 24 hour basis, counsellors are not always available on a 24 hour basis. That's ---

Q. And your team is not available on a 24 hour basis either?

A. The ESO Team is available on a 24 hour basis.

Q. We are talking about electronic monitoring, not your usual team?

A. No, the team itself is available on a 24 hour basis because we have an on call manager system, which means that if there any issues or concerns which arise outside of the normal work hours of the supervising officer, the on call manager is then contacted and makes decisions as to what steps might be required to assist.

HIS HONOUR

Q. Accepting what you've said about availability and the like, do you agree that the overall support network that the defendant has extends beyond his immediate family?

A. Yes.

STARES

Q. I am sorry, I also missed another one, if I could? He also has the support of his GP, Dr Augusto Tablante, T A B L A N T E?

A. Yes.

Q. And you understand that he has seen Mr Carney, or has been Mr Carney's GP, obviously not for the periods that he has been in custody but for a period over the last 20 years?

A. Yes.

PSYCHIATRIC REPORTS FURNISHED TO THE COURT

The evidence of Dr Martin

42. Dr Martin diagnosed the defendant with schizophrenia. [47] He expressed the view, [48] based on the defendant’s account that he was abstinent from all substances, that he appeared to be in remission. However, Dr Martin said that substance abuse disorders should be regarded as a long-term vulnerability. He also thought it noteworthy that in 2017, whilst in custody, the defendant was sanctioned for failing a prescribed drug test. Dr Martin concluded: [49]

It is reasonable in my view to see schizophrenia and substance use disorder as being enduring conditions which represent the predominate and significant risk factors in relation to potential violence.

47. At p.12-13.

48. At p.13.

49. At p.13.

43. Dr Martin was asked to specifically consider the question of whether the defendant posed a risk of committing a further serious violence offence. In this respect he said: [50]

Given the history of serious violence perpetrated in the context of being paranoid and in probable association with substance use, and where the violence has occurred at various times between 2006 to 2015, he has to be considered at significant future risk of violence. This has been assessed as "medium" and "moderate" according to formal risk assessment performed by Mr Ardasinski, as per his report. I agree generally with the opinion expressed by Mr Ardasinski. The main issues in relation to risk of violence in Mr Carney's case are his history of previous severe violence, the likelihood that this has occurred while being mentally ill and in the context of an enduring mental illness [described as treatment resistant schizophrenia] and the history of substance use. There is a history of him having had severe behavioural disturbance and use of drugs even while in the contained environment of custody, although this probably reflects the fact that he had poor judgment in association with being mentally ill. He has used various weapons including a metal pole [manslaughter], firearms and a knife used against another inmate while in custody. He has been described as being treatment-resistant, meaning that he has experienced psychotic phenomena even while on anti-psychotic treatment, and was previously referred for electroconvulsive therapy, clearly markers for very severe illness. His mental condition appears to be relatively stable more recently and this may be partly attributable to lengthy duration of being prescribed a high dose of Clozapine and other anti-psychotics, and being in the relatively stable environment of home, which is presumably much less hostile than when he was in custody. While his mental illness and substance use disorder will remain long term risks for him, his risk of violence will decrease gradually over time, on the assumption that he can maintain stability and remain compliant with medication, and remain abstinent from illicit substances.

50. At p.13-14.

44. Dr Martin was also asked [51] to assess the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious violence offence. In this regard he thought it relevant that the defendant had a history of:

    51. Commencing at p. 14.

1. previous violence;

2. problems with relationships and employment;

3. significant substance abuse;

4. major mental disorder; and

5. partial problems with treatment or supervision response.

45. Dr Martin expressed the view [52] that the defendant could not be diagnosed with a personality disorder, and thought that his previously antisocial behaviour could be seen in the context of major mental illness and substance use.

    52. At p.14.

46. Significantly, Dr Martin said [53] that the defendant demonstrated a reasonable insight into the nature of his conditions, the importance of taking medication, and the importance of avoiding substances. He also noted that the defendant did not express any violent ideation or intent, that he did not appear to be suffering symptoms of any current mental illness, that there was no apparent current or recent instability, and that he appeared to have responded reasonably well to treatment and supervision in more recent times. [54]

    53. At p.15.

    54. At p.15.

47. In terms of risk management, Dr Martin said [55] that the defendant appeared to have available to him reasonable professional services and plans, a stable living situation, and good personal support. He considered it likely that the defendant would maintain a reasonable response to treatment and supervision, and said that whilst he may have limited coping skills, he appeared to have responded well to his situation, and did not appear to be unduly stressed by the future, including any proposed ESO.

    55. At p.15.

48. Having regard to all of these matters, Dr Martin said: [56]

Putting this together, he has scored more highly on the historical scale compared to the clinical and risk management scales, with a relatively high loading of historical factors. It is probably reasonable to infer that he is at moderate risk of future offending. As articulated by Mr Ardasinski, Mr Carney's risk of future violence is mainly around his history of serious mental illness and substance use and these are the main factors which will be relevant for the future and which require extremely assertive monitoring and management. It is relevant that there is potential for serious violence, given the history and previous use of weapons, and where previous violence has occurred in absence of warning signs picked up by others, apparently. While Mr Carney is apparently currently stable and well managed, being abstinent from illicit substances and being adherent to appropriate anti-psychotic treatment, the risk of major mental illness and relapse into substance use are ongoing issues which will remain relevant for the foreseeable future.

56. At p.15.

49. Dr Martin was also asked to express his opinion as to whether, in the event that he considered that the defendant posed a risk of committing a further serious violent offence, such a risk could be managed in the community. In this regard, he said: [57]

In my view, Mr Carney's risk of committing a further serious violent offence can be managed in the community under an Extended Supervision Order by virtue of his being subject to conditions which will ensure regular monitoring of his behaviour, mandate clinical review and adherence with treatment and minimise the likelihood of substance use.

The community treatment order will ensure adherence to anti-psychotic medication, on the assumption that his family can identify non-adherence widi prescribe anti-psychotic treatment [noting that he is not prescribed depot anti-psychotic medication which is the best way of ensuring that a person is actually taking anti-psychotic medication]. That is not to say that depot medication is necessary, and Clozapine, which is the most effective anti-psychotic medication, is only available in oral form. To my understanding, a community treatment order by itself [ie in the absence of an ESO], will not be able to mandate abstinence from illicit substances although will mandate that he attends on his mental health clinicians. According to the CTO treatment plan dated 23 January 2019 contained at Tab 9 of the first document, this stated that he only has to see his treating psychiatrist, Dr Hafiz, at least once every twelve weeks, and his case manager or delegate at least once every two weeks, although gives some flexibility in relation to frequency of appointments.

My view is that the proposed ESO is far more comprehensive in addressing monitoring obligations and specifically addresses the issue of substance use, whereas the CTO is focused on Mr Carney attending clinical appointments and taking medication as prescribed. While Mr Carney's main risks appear to be around mental illness and the need for effective treatment, the proposed ESO probably gives more oversight of his general behaviour and would allow for more assertive intervention in the event of any problems, allow for monitoring of issues such as access to weapons, and more adequately addresses the potential issue of substance use.

It is also possible that a CTO might not be renewed by the Community Mental Health Team, especially when considering community mental health team's generally limited resources. While it would seem unlikely and unwise that he would be discharged from care or that a CTO would be discontinued, there is no guarantee that this could not occur. Again, while this is probably unlikely, it is not impossible that a CTO could be circumvented by the Defendant, for instance by moving interstate, which would result in there being no mandated monitoring or management of the relevant risk factors. Essentially, the management of his future risk will depend mainly on the support and co-operation of his family, if he is not on an ESO. In summary, Mr Carney has ongoing risk issues in relation to future violence, which will not be wholly addressed by a community treatment order.

57. Commencing at p.16.

50. In terms of the proposed conditions attaching to any ESO, Dr Martin said: [58]

The proposed conditions of the ESO appear appropriate from a psychiatric perspective, when considering community safety and risk management. It should be acknowledged that his mother noted the potential intrusiveness of the conditions given that Mr Carney resides in the family home. From the perspective of community safety, I have no suggestions in relation to the proposed conditions. In terms of necessary management, I agree that he should continue to have ongoing treatment by the local community mental health team. In my view, he should be seen by a community psychiatrist more frequently than every twelve weeks and it would be reasonable for him to be seen at least monthly, and more frequently in the event of any early warning signs of relapse. He will be reviewed on a monthly basis because of Clozapine although this is likely to be fairly limited in terms of monitoring his mental state. He should continue to see his case manager on a regular basis, at least every fortnight, as is currently apparently the case. It will be helpful for him to continue to see a drug and alcohol counsellor and to engage in psychoeducation in relation to his mental illness and substance use issues. In mv view, it will be important for him to have regular urine drug screens, given his history. If an ESO were to be granted, three years might be an appropriate duration. The length of time is somewhat arbitrary from a clinical perspective; community safety needs to be balanced against an individual's rights, which is a challenging issue for the Court. The risk factors are likely to be enduring and persist for many years. However, the risk factors are mainly around mental health issues rather than anti-social personality traits, and in my view, in the long term, the most appropriate intervention will be around ensuring assertive mental health intervention in the form of ongoing monitoring of his mental state, ensuring anti-psychotic treatment, and abstinence from illicit substances.

58. At p.18.

51. Whilst acknowledging that the defendant was currently abstinent from illicit drugs, and that this was an obviously positive factor in mitigating any future risk, Dr Martin said: [59]

However, substance use will be an ongoing vulnerability for him. In terms of future treatment, this is probably best provided through drug and alcohol counselling and ongoing psychoeducation. There will need to be ongoing vigilance in relation to his substance use and it would not be completely surprising if Mr Carney were to engage in substance use at some time in the future, which would significantly increase his risk of violence. In my view, he does not require residential drug and alcohol rehabilitation at this stage.

59. At p.19.

52. Dr Martin concluded: [60]

Taking into the account the opinions expressed above, his history of illicit drug use clearly has an impact on the current assessment of his risk. In summary, substance use represents a major risk factor for him. The Manslaughter offence occurred while intoxicated apparently on a background of an evolving mental illness. It is not clear whether the wounding offence in 2015 occurred in association with substance use. However, it is notable that there is evidence of continued substance use even while in a highly controlled environment subsequently. People suffering major mental illness are generally at increased risk of substance use.

60. At p.19.

53. In his evidence before me, Dr Martin agreed [61] that in addition to the support provided by his family, the defendant now had a number of treatment providers available to him. He specifically agreed [62] that the defendant was:

    61. T9.9-T9.11.

    62. T10.35-T11.27.

1. under the care of a psychiatrist;

2. managed on Clozapine through the Clozapine Clinic;

3. required to submit to regular blood tests and monitoring; and

4. subject to weekly contact with a drug and alcohol service.

54. In relation to these arrangements, Dr Martin said: [63]

Well, I mean I think he requires a team around him, including a mental health nurse, a drug and alcohol counsellor, and yes, and they need to have to monitor his mental state and behaviour, and in my view I think it would be useful to be able to monitor, for instance, closely any worrying signs, in particular, in relation to weapons, for instance, in particular, in relation to any potential ongoing drug use which would require drug and alcohol, for instance, urine drug screens. I think that would be reasonable in the circumstances. And, to my knowledge, the CTO doesn't provide for that.

63. T11.36-T11.43.

55. Dr Martin agreed [64] that under the terms of the CTO, the defendant had fortnightly contact with his case worker, as well as contact with “Partners in Recovery”. He also agreed [65] that the defendant was living in an appropriate home with his family, had a supportive domestic network, and that his mother had previously contacted services for assistance. Dr Martin was then asked: [66]

Q. So in terms of the comprehension of an ESO being far more comprehensive than what is a CTO, were you also taking into account the fact that Mr Carney isn't just on a CTO but he has other services around him that are supporting and providing a framework for supporting his mental illness?

A. Yes.

Q. In terms of risk issues of future violence, they are directly related to his mental illness and any deterioration of that?

A. Yes.

64. T12.40-T13.3.

65. Commencing at T13.8.

66. T13.16-T13.24.

56. Despite the extensive support network which is already in place, Dr Martin remained of the view that the defendant continued to pose a risk of committing a further serious violent offence. [67] He was asked: [68]

    67. T14.36-38.

    68. Commencing at T14.40.

Q. And in light of how he is currently being managed, do you maintain your opinion that a community treatment order is not sufficient?

A. I have some significant concerns about the CTO on its own adequately managing the risk, so can I expand?

Q. Yes, please do.

A. He, Mr Carney, appears to be stable, he's got a good family around him and they are aware of they are aware of his risks, he's got insight, he acknowledges that, he's taking medication, he's got a team around him. He's aware of the problems with substance use. All that is great and very positive. It's not unforeseeable, mental community the problem is not really with Mr Carney or his family. The problem is with, in my view, the adequacy of community mental health services, and the fact is I don't think anyone here can guarantee that a CTO will continue in 12 months' time or two years or three years or five years, and that is what he will need, in my view, for many years to come, is some form of well, certainly over the next the foreseeable future, a framework to absolutely guarantee that he does take the medication, and a structure to make sure that there is an external framework to make sure that he doesn't use drugs and to test for that, and I don't think the CTO adequately covers those issues. So the CTO with if he were and I am not saying that this is going to happen, but if he were to say, "Okay, I have had enough of this medication, I have been on it long enough, I feel well, I don't think I need it, I am going to reduce the dosage", what are the consequences of that in terms of well, he could easily become unwell again, but and my concern is that he's got a very, you know, severe illness where he becomes he's unusual in that the violence has been quite serious when he has become unwell. This is not a reflection on his personality but it is a reflection of a very nasty illness, and I am not sure that the CTO, as it stands at the moment, adequately addresses that, and certainly there is no guarantee that it can't be that it will continue. And we know from bitter experience that people do drop that they are people are discharged from community mental health services because they are limited with resources.

HIS HONOUR

Q. But that is necessarily speculative, isn't it?

A. Of course it is speculative yes, and I don't I am sorry, to be rude. It is speculative, I don't have a crystal ball, but it is not it would not be surprising, and we have seen this through many forensic patients in the forensic hospital, who have offended, who have been discharged from community mental health services, so I think that's my real concern, is that it's a CTO is appropriate but I am not sure it is enough.

Q. Can I ask you this, Doctor: There's a CTO in place. That is not the only regime in place at the moment in terms of supervision, is it?

A. No.

Q. You have family support and the various other things that Ms Stares took you to when she asked you questions?

A. Correct.

Q. Can I also ask you this: Assuming, to use your example a moment ago, that the defendant made his own decision to reduce his level of medication or to stop it altogether; that would be picked up, wouldn't it, by one or other of the tests that he has to undergo periodically?

A. Not necessarily.

Q. It wouldn't be picked up in a blood test?

A. No, because Clozapine plasma levels are not routinely monitored by

the Clozapine Clinic. The Clozapine Clinic exists to make sure a person doesn't have a lowered white blood cell count, which can be a potentially fatal side effect. A script is written, but, to my knowledge, plasma levels aren't routinely taken.

Q. So is it the case, in your opinion, that if, for example, hypothetically, the defendant decided that he would reduce and/or stop his medication, that that could never be detected by any of the mechanisms that are currently in place?

A. Not the mandated mechanisms. It would rely on clinical judgment and, obviously, the input from his family.

57. In terms of the last answer in the passage immediately above, Dr Martin conceded that when the condition of a mentally ill person deteriorates, the people who normally detect such deterioration in the first instance are those who are closest to the person, and who see him the most frequently. [69] Dr Martin made that concession in the context of evidence that the defendant lives with his parents: [70]

    69. T16.42-T16.45.

    70. Commencing at T16.47.

Q. So in this particular case he lives with his parents, of course, you are aware of that?

A. Yes.

Q. And his mother has previously, on other occasions, notified the various services of her concerns about deterioration?

A. Yes.

Q. It is your understanding, isn't it, that if a concern was raised by a family member, either at the Clozapine Clinic or a community mental health team, of a deterioration in mental health state, where that service would be aware of previous offending of such significance as a manslaughter, that that would require them, wouldn't it, to investigate that concern?

A. One would hope so, yes. Whether they actually respond adequately to that is another matter.

Q. But that same concern could be given to a GP who could order a blood test, right?

A. Yes.

Q. It doesn't have to be just the Clozapine Clinic or the community mental health team; it could be any medical practitioner who's been sought for advice about this aspect?

A. Yes.

The evidence of Dr Furst

58. Dr Furst provided a report of 1 August 2019. He too diagnosed the defendant with schizophrenia, [71] on the basis of recurrent symptoms of paranoid thinking, auditory hallucinations, mood disturbance and paranoid delusions, both as reported by the defendant and as noted in relevant medical records.

    71. At p.13.

59. Dr Furst concluded [72] that the defendant was at a low to moderate risk of causing serious physical harm to others, and he specifically stated that there were no indications of any imminent risk of violence to others posed by the defendant. He expressed the view [73] that a risk assessment of the defendant, and the clinical observations of the defendant over a number of years, suggested that he was most at risk of serious violence, or committing a serious violence offence, when he was acutely psychotic. He said: [74]

Such risks are generally managed pursuant to the principles of the Mental Health Act 2007, including ongoing clinical reviews by his treating team and considerations in relation to risk of self-harm and/or risks of serious harm to others when mentally unwell.

Long established and accepted principles in relation to the least restrictive care of individuals pursuant to Mental Health Act, 2007 weigh heavily in relation to deliberations in relation to the appropriateness or otherwise of an ESO.

72. At p. 17.

73. At p. 17.

74. At p. 17.

60. Dr Furst then said: [75]

Unfortunately, there is a further risk that restrictions such as scheduling and electronic monitoring generally contained within ESO applications would likely exacerbate and/or destabilise individuals with chronic psychotic illnesses, who struggle at the best of times to negotiate the challenges of daily living in the community. Geographical restrictions and scheduling requirements are probably more appropriate for people who need to avoid specific geographical locations, such a sex offenders in the community, with the potential risks posed by Mr Carney over the longer term being most relevant to people in close proximity to Mr Carney, such as family members, scheduling and monitoring being next to useless in ameliorating such risks.

75. At p. 17.

61. Having noted [76] that the defendant was already subject to a CTO, Dr Furst concluded: [77]

Therefore, on balance, I am not convinced that an ESO is necessary and I am not convinced to a high degree of probability' that an ESO would have anything to add to his current clinical management or his longer-term risk management beyond what the Mental Health Act 2007 (NSW) provides.

76. At p. 18.

77. At p. 18.

62. He went on to say: [78]

The current clinical management being provided through the Clozapine Clinic at Liverpool Hospital and the related community mental health service at Liverpool pursuant to his current Community Treatment Order appear to be managing his condition in accordance with the principles of least restrictive care.

I note he has strong family support and also has the support of long-term friends and other agencies, including partners in recovery.

There is a significant risk that imposing an ESO would place an unfair and unnecessary burden on Mr Carney, with any breach of the extensive proposed conditions and ESO Team monitoring placing him back in goal again and removing him from family supports and current psychiatric services in the community, with which he is currently well engaged.

The alternative proposal in relation to management with ongoing Community Treatment Orders and Mental Health Review Tribunal supervision of such orders means that any breach of conditions, such as non-compliance with medication, non-attendance at appointments, would be managed through involuntary admission to psychiatric hospitals as a 'Breach of CTO’ providing for treatment in a much more humane and therapeutic environment than NSW Correctional Services facilities under a 'Breach of ESO'.

The likelihood is that Mr Carney’s schizophrenic condition will progress over time into a more debilitating disorder, notwithstanding medication currently prescribed to him, as he has clinical features of treatment resistant and/or ultra-resistant schizophrenia.

Notwithstanding this prognosis, the provisions of the Mental Health Act, 2007 anticipates such clinical necessities and scenarios, including provisions for long-term involuntary treatment in psychiatric rehabilitation facilities. In my opinion, long-term risk management in relation to Mr Carney can be adequately covered within the broad provisions of the Mental Health Act, 2007, including the current use of Community Treatment Orders and potentially the longer term use of involuntary patient treatment orders in the event of clinical deterioration in the future.

78. At p. 18.

63. Having regard to all of these factors, Dr Furst concluded [79] that an ESO was not necessary, and that the current provisions of the CTO and those under the Mental Health Act 2007 (NSW) were adequate in terms of addressing any risk.

THE DEFENDANT’S EVIDENCE

79. At p. 19.

The evidence of the defendant’s mother

64. I have already noted that two affidavits of the defendant’s mother, Gail Carney, were read without objection. In the first of those affidavits Mrs Carney explained[80] that she and her husband live with the defendant, their other son, their daughter, and a grandchild. [81] She explained[82] that if she is not with the defendant every day, her husband, or other family members, or friends, are with him. Mrs Carney said[83] that the treatment of the defendant’s medical condition was her primary focus, and that she had undertaken a course over 12 weeks at Liverpool Hospital which was designed to assist families supporting patients with schizophrenia. As a consequence of this, and also as a consequence of having had to deal with mental illness in respect of other members of her family, Mrs Carney emphasised[84] that she was aware of the defendant’s symptoms, and was alert to any “warning signals” that he may be mentally unwell. She cited,[85] as an example, a tendency on the part of the defendant to withdraw from the family at times when he was unwell, and said[86] that based upon her previous experience, she believed that she would become aware of any symptoms of concern, and would therefore be alert to any circumstances which might require external intervention. She also explained [87] that the defendant is always accompanied to outside appointments.

    80. At [9].

    81. At [3].

    82. At [9].

    83. At [10].

    84. At [13].

    85. At [14].

    86. At [15].

    87. At [24]-[25].

65. In her second affidavit, Mrs Carney confirmed[88] that the defendant’s family circumstances and living arrangements as set out in the her first affidavit had not changed. Mrs Carney continues to support the defendant by (inter alia) attending the Clozapine Clinic with him, monitoring his treatment by Dr Tablante, liaising with medical practitioners as to her own observations of the defendant’s health and behaviour, and managing his diary. [89] She also expressed the view [90] that the conditions imposed pursuant to an ESO may be counter-productive in various ways, an opinion not inconsistent with that expressed by Dr Furst.

    88. At [4].

    89. At [10]-[12]; [16].

    90. At [20]-[23].

The Community Treatment Order

66. Annexed to Mrs Carney’s second affidavit is a copy of the CTO imposed upon the defendant by the Mental Health Review Tribunal on 1 August 2019 for a period of 6 months. Pursuant to that order, the defendant is obliged to:

1. take prescribed medication;

2. attend reviews by Dr Hafiz, Psychiatrist;

3. meet with his case manager;

4. attend the Clozapine Clinic; and

5. comply with associated monitoring administered by the Clozapine Clinic, including submitting to blood tests as directed by his psychiatrist or case manager.

67. Also annexed to the same affidavit [91] was a report from Dr Tablante, the defendant’s treating General Practitioner, which stated (inter alia):

Since coming out of jail, he has seen me on a 3 to 4 weekly basis for ongoing mental review as well as prescriptions provided and monitoring prescription intake.

During this time, (the) patient has been stable with no signs of recurrence of his psychosis.

The patient has been proactive in his endeavour to get better by going to the gym on a regular basis as well as eating well and general exercises continued.

In the event of an acute psychosis, the management plan for Todd Carney would be to get an urgent referral back to his treating psychiatrist for further advice and management or if worst case scenario, may need to go to the Mental Health Unit at Liverpool Hospital, but it must be noted that I do not foresee, given his ongoing mental state over the last few months, that this is going to happen as long as he continue (sic) taking his medication.

91. Annexure B.

The evidence of Josh Manzione

68. Mr Manzione provided an affidavit of 23 August 2019. He is a transition worker employed by “One Door Mental Health” who administers the “Partners in Recovery” program, in which the defendant is a participant, and which is designed to transition persons into the National Disability Insurance Scheme. Mr Manzione described[92] the defendant as having been “highly engaged” throughout the program, and said that he had achieved “key outcomes while completing all his obligations”. Those key outcomes[93] included:

1. being accepted into the NDIS;

2. regularly attending all appointments and notifying those concerned if it was necessary to cancel them;

3. engaging with all other services and support including medical support, drug and alcohol counselling and other related obligations.

92. At [9].

93. At [11].

The evidence of Christine Hall

69. Ms Hall, the defendant’s solicitor, provided an affidavit of 30 August 2019 to which she annexed a report of Xenia Hagidemetriou, a transition worker with the Community Restorative Centre, an organisation dedicated to supporting prisoners, ex-prisoners and their families, and which operates a program entitled “the Transitional Alcohol and Other Drugs Project”. The defendant has been engaged in weekly contact with that project since July 2018.

70. Ms Hagidemetriou said the following:

Mr Carney has made progress in transitioning to life outside prison over the last 10 months which has included reconnecting with family and friends, attending to all his appointments as well as working on his mental and physical wellbeing.

Mr Carney has been exemplary in attending his appointments and has been realistic in his transitioning efforts with the support of his family, friends and workers. During our appointments we discuss Mr Carney’s current wellbeing and any possible stressors and ways of managing those stressors so that his wellbeing is preserved.

…

I have also been in contact with Mr Carney’s family (with whom he lives) and have been made aware of the many continued efforts in supporting his wellbeing. This has included emotional support, assisting him in attending his appointments, taking his medication and keeping track of his mental wellbeing and any other needs. Mr Carney’s family have also been willing to learn more about Drug and Alcohol and other related issues (e.g. I have recently provided them with information regarding an upcoming Family Drug Support Course).

Mr Carney has been an open and willing participant in this entire process and has expressed on a number of occasions his gratitude in relation to being home with his family, his professional support as well as having an open acceptance around his mental health and related drug and alcohol issues. He has also stated an awareness around his past behaviour and has a current and ongoing vision for his life that is positive, productive and does not include drugs, alcohol or offending behaviour.

My understanding is that Mr Carney has complied well under his interim ESO. Some flexibility in the interim ESO has taken into consideration Mr Carney’s ongoing side effects from his current level of mental health medication (e.g. fatigue, memory, focus and attention) as well as taking into consideration the other support Mr Carney is currently receiving. This has included significant support from his family and also support from myself and other service providers (e.g. Liverpool Community Mental Health Team, GP and Partners in Recovery support worker (South West)). It is possible that any additional constraints might negatively impede Mr Carney’s continued progress made over the last 13 months and result in undue pressure and anxiety on both him and his family.

Regardless of the outcome of the court matter today, Mr Carney will continue to receive the support of his family, friends and professional workers such as myself, the Liverpool Community Mental Health Team and Partners in Recovery (South West).

STATUTORY CONSIDERATIONS

71. In addition to any other matter which might be considered relevant, the Act mandates that I consider certain matters insofar as they are applicable.

Section 9(3)(b) – Reports received under s 7(4)

72. Reports were received from Dr Martin and Dr Furst, and their opinions have been summarised above.

73. As I have outlined, Dr Martin expressed the view that an ESO was both appropriate and necessary. One of the fundamental reasons for that view stemmed from what Dr Martin saw as risks which were not wholly addressed by the CTO. He also concluded that absent an ESO, the management of the defendant’s future risk(s) would necessarily depend mainly on the support and co-operation of his family. However, it must be emphasised, in light of the unchallenged evidence of Mrs Carney, that the support of the defendant’s family is both constant and unequivocal. Importantly, Dr Martin accepted that in addition to that support, the defendant now had the benefit of a number of treatment providers.

74. The unchallenged opinion of Dr Furst was that an ESO would add little to the defendant’s current clinical management, or to his longer-term risk management, beyond what is in place, and beyond that provided by the Mental Health Act 2007 (NSW). Moreover, Dr Furst expressed a view that the imposition of an ESO may be counter-productive, a view shared by the defendant’s mother.

Section 9(3)(c) – Other assessments as to the likelihood of the defendant committing a further serious offence.

75. There are other medical assessments which have been prepared in relation to the defendant over a number of years. Generally speaking, they do not directly address likelihood of the defendant committing a further serious offence. Moreover, many of them date back a number of years. Nevertheless, I have taken them into account and they may be summarised as follows:

1. on 16 February 2007, in a report for the Mental Health Review Tribunal, Dr Kasinathan and Dr Wilcox noted that the defendant had been diagnosed with schizophrenia and described him as being “extremely insightful of the need to remain on lifelong antipsychotic medication and abstain from illicit substances; [94]

   94. Exh JF-1, p. 220 and following.

2. assessments carried out by Dr Nielssen in 2007 [95] and 2010 [96] reported that the medication regime to which the defendant had been subject had been effective in controlling his symptoms of schizophrenia;

   95. Exh JF-1, p. 233 and following.

   96. Exh JF-1, p. 246 and following.

3. on 9 September 2016 the defendant was assessed by Dr Furst in relation to the issue of whether he was fit to be tried. Dr Furst noted that the defendant remained acutely psychotic, and he expressed the view that the defendant would have a mental illness defence available to him. He recommended that the defendant remain medicated in Long Bay Hospital, that he participate in drug and alcohol counselling, and that he work in education programs to assist in his adjustment into the community; [97]

   97. Exh JF-1 p. 265 and following.

4. Professor Greenberg prepared a report of 13 November 2016 in which he diagnosed the defendant as suffering with a schizophrenic disorder, a polysubstance use disorder, and a past history of adult anti-social behaviour. He expressed the view that the defendant did not have a defence of mental illness but that his illness likely played a significant contributing role in the index offending; [98]

   98. Exh JF-1 p. 275 and following.

5. the defendant was assessed by Dr Furst in February 2017 at which time, Dr Furst expressed the view that the defendant was fit to be tried, and may have a defence of mental illness; [99]

   99. Exh JF-1 p. 294 and following.

6. at the request of the State Parole Authority, Dr Chew of Justice Health provided a report dated 3 April 2017 [100] in which he noted that the defendant accepted that he had schizophrenia, and expressed the opinion that the defendant had a psychotic disorder, namely schizophrenia, that was partially treated on Clozapine, and that he had a polysubstance use disorder which was then in early remission;

7. the defendant was reviewed by Peter Zabilka, Psychologist, on 7 April 2017 at which time he continued to report auditory hallucinations; [101]

8. on 6 June 2017 a report was received from Dr Hearps who confirmed that the defendant was being treated with Clozapine, and that he continued to experience “voices”. Dr Hearps said that the defendant reported that he been feeling progressively better and was able to manage that symptom. Dr Hearps expressed the view that the defendant was ready to be discharged from the Mental Health Unit; [102]

9. on 17 May 2018 the defendant was transferred to Long Bay Hospital, at which time Dr Adams-Bedford said that he presented as engaging and alert, but that he had reported ongoing distress from his auditory hallucinations, and had described significant impairment despite reported compliance with antipsychotic medication; [103]

10. on 19 July 2018 the defendant was re-assessed by Dr Chew who noted that some incidents (including that in November 2015) had occurred during a period of non-compliance with medication and treatment. [104]

    100. Exh JF-1 p. 299 and following.

    101. Exh JF-1 p. 304 and following.

    102. Exh JF-1 p. 307 and following.

    103. Exh JF-1 p. 308 and following.

    104. Exh JF-1 p. 309 and following.

76. The terms of the defendant’s CTO have been previously set out. [105]

    105. At [66].

Section 9(3)(d) – The results of any statistical or other assessment

77. I have already noted the opinions of Mr Ardasinksi [106] and the evidence of Ms Cieplucha [107] in this respect. Although Mr Ardasinski concluded that the defendant presented a medium risk of violent offending relative to other male offenders, it must be emphasised that his assessment was conducted, and his opinion expressed, almost 12 months ago. Moreover, it is evident that such opinion was partly based upon a conclusion that the defendant had not had, at that point, sufficient time in a non-custodial setting to demonstrate any significant behavioural change. The defendant has now been in the community for an extended period of time. The evidence before me establishes that in that time, he has displayed the significant behavioural change which was absent at the time that Mr Ardasinski prepared his report. He has done so with the assistance of the support network described by Ms Cieplucha as “comprehensive”.

Section 9(3)(d1) – Any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community.

106. At [29]-[32].

107. At [33-][37].

78. A pre-release report of 24 March 2016 [108] noted that the defendant had (inter alia) demonstrated a reluctance to abstain from illicit drugs, on the basis of which an opinion was formed that he was unwilling to adapt to normal community life. In those circumstances parole was not recommended. Accepting that one of the factors relevant to a determination of the likelihood of committing a further serious offence is the defendant’s attitude to his previous offending, it is relevant to note that in the same report [109] it was noted that the defendant was “defiant” when discussing his offending and that he tended to minimise that offending at the same time as stating that he was remorseful.

    108. Exh JF-1 p. 340 and following.

    109. Exh JF-1 p. 341.

79. In a subsequent report of 19 April 2017 [110] it was noted that the defendant’s family remained supportive, and that the defendant had reached the point where he had become more amenable to discussing his offending behaviour. However, in circumstances where his behaviour had been reported as inconsistent, and where his mother had expressed a view that the he was mentally ill, parole was not recommended.

    110. Exh JF-1 p. 348 and following.

80. In a report prepared in 2018, [111] the defendant was described as “forthcoming” when discussing the index offence. It was noted that he appeared to accept responsibility, and that such acceptance was mixed with self-concern. An improvement in his behaviour was noted, as was a concern that he continued to engage in drug use and was suspected of diverting his prescribed medication. A supplementary report of 24 August 2018 [112] described him as “settled and compliant” and expressed an anticipation that a Community Treatment Order would be made upon his release to encourage his continued compliance with mental health treatment.

    111. Exh JF-1 p. 384 and following.

    112. Exh JF-1 p. 393 and following.

81. It is apparent from the reports of Dr Martin[113] and Dr Furst [114] that the position has now been reached whereby the defendant acknowledges his offending, has expressed remorse, and takes responsibility for his actions.

    113. At [28].

    114. At p. 12.

Section 9(3)(e) – Treatment or rehabilitation programs

82. The defendant completed a program at Goulburn Correctional Centre in 2009 entitled “Preventing and Managing Relapse”. [115] He was deemed ineligible for alcohol and drug related programs in 2016. [116]

    115. Exh JF-1 p. 396 and following.

    116. Exh JF-1 p. 340 and following.

83. In 2018 he was not afforded the opportunity to participate in such programs due to his mental health treatment classification, [117] and was similarly deemed ineligible to participate in violent offender treatment programs, although he expressed a willingness to do so. [118]

    117. Exh JF-1 p. 356 and following.

    118. Exh JF-1 p. 365-367.

Section 9(3)(e1) – Options available that might reduce the likelihood of re-offending over time

84. The terms of the current CTO have already been noted. [119] The plaintiff has expressly conceded[120] that the defendant has complied with all conditions of his parole and that there is significant external support available to him. [121]

Section 17(4)(e2) – Whether the defendant is likely to comply with the obligations of an Extended Supervision Order

Section 17(4)(f) – The level of the defendant’s compliance with any obligations to which he or she is, or has been, subject while on release on parole, or while subject to Interim Supervision Order or an Extended Supervision Order

119. At [66].

120. Written submissions at [128].

121. Written submissions at [129].

85. There is no dispute that the defendant has complied with his parole obligations, the conditions of the ISO imposed by Garling J, and the conditions of his current CTO. There is no reason to suggest that he would not comply with any obligations imposed by an ESO if such an order were made.

Section 9(3)(i) – Any other information as to the likelihood that the defendant will commit a further serious offence

86. There is evidence that whilst in custody for the index offending, the defendant was the subject of five citations relating to violence, and eight relating to drug taking. There were also periods in which he was placed into segregation. [122] There is evidence that the citations in respect of violent behaviour were connected to the defendant’s active psychosis. [123] Those incidents, and indeed the defendant’s history of offending, come against a background of a history of alcohol consumption which commenced at about the age of 14, and illicit drug use which commenced at about the age of 17. [124] I have previously noted the fact [125] that the defendant had only limited access to rehabilitation programs whilst in custody. What must be said however is that the evidence establishes that since these events, the defendant has come to terms with, and has acknowledged, his offending and has made significant positive steps towards his rehabilitation.

SUBMISSIONS OF THE PARTIES

122. Exh JF-1 p. 340 and following; Plaintiff’s written submissions at [132].

123. Exh JF-1 p. 312.

124. Exh JF-1 p. 256-257.

125. At [82]-[83].

Submissions of the plaintiff

87. In written submissions, counsel for the plaintiff made reference to the various assessments of Mr Ardasinski, Dr Martin and Dr Furst. Counsel submitted that the defendant would always pose a moderate risk of committing another serious violent offence, and that the evidence established that the defendant’s risk of committing such an offence was inextricably linked to his diagnosed psychiatric illness which was enduring, as was his diagnosis of substance abuse.

88. Counsel submitted that these diagnoses, combined with historical factors, led to a conclusion that the defendant’s risk assessment was unlikely to change over time. It was submitted that in all of the circumstances, I would be satisfied that the defendant would always pose an unacceptable risk of committing another serious offence.

89. In oral submissions, counsel for the plaintiff submitted that a principal concern from the point of view of the plaintiff’s risk of further offending stemmed from the fact that the CTO was operative only until February 2020, and may not be extended beyond that time. It was submitted that if this were to eventuate, a significant part of the defendant’s current support network would evaporate. Counsel further submitted that because of the defendant’s history of violent offending, an ESO remained appropriate, in circumstances where each instance of violent offending had occurred in association with a deterioration in the defendant’s mental health. Counsel also relied on the specific findings of Schmidt J when sentencing the defendant.

90. Counsel emphasised that the nature of the risk posed by the defendant was enduring because of the combination of historical factors and the diagnosis of schizophrenia. Counsel also pointed to the fact that the defendant had been out of custody for only approximately 11 months.

91. Counsel also emphasised that the plaintiff had acknowledged the defendant’s current level of support by removing a number of the conditions which were originally sought. It was submitted that the conditions now sought were directed towards ensuring that there was an appropriate level of monitoring and supervision.

Submissions of the defendant

92. In written submissions, counsel for the defendant submitted that the risks posed by the defendant were adequately and appropriately managed by the current CTO, and the ongoing treatment which was being provided in the safe and supportive environment provided by the defendant’s family and his community treatment providers.

93. In oral submissions, counsel for the defendant again emphasised the support which is currently available to the defendant. Whilst accepting that such support was necessarily dependent upon the defendant continuing to avail himself of it, counsel submitted that in light of the efforts made by the defendant thus far, the overwhelming inference was that he would remain, as it were, “on track”, and would continue to voluntarily avail himself of whatever services and support he could. Counsel also submitted, in my view with some force, that even if at some point the defendant deviated from his current path, and even if the CTO was not renewed beyond February 2020, it remained the case that he could be rendered an involuntary patient pursuant to the Mental Health Act 2007 (NSW).

94. In terms of the plaintiff’s reliance upon the findings of Schmidt J, counsel for the defendant pointed to the fact that at that time her Honour obviously did not have the benefit of the plethora of material which is now available to this Court. It was submitted that there was now a significant difference in the defendant’s circumstances, arising from the fact that not only had his condition been diagnosed, but he now had available to him professional and other support to enable him to function appropriately in the community.

95. Counsel for the defendant also pointed to the fact that the support network currently available to the defendant included mental health practitioners who were assessing him on a regular basis. It was submitted that even if an ESO were made, the functions of any ESO team would (at least in that respect) essentially be limited to referring the defendant to the practitioners who were already monitoring him. It was further submitted that the unchallenged evidence of the defendant’s mother was that she was already performing that role, and that it would be unrealistic to conclude, in circumstances where the defendant was supported by such a large number of people, that any deterioration in his mental health would go undetected, much less be ignored. It was submitted that a large number of people were monitoring the defendant, that they had contact with him on a regular basis, and that they could (and, on the evidence, would) act on any early warning signs which indicated a deterioration in the defendant’s mental health. Counsel also pointed to the evidence which, she submitted, would satisfy me that the defendant has insight into his mental illness. It was submitted that in these circumstances, the possibility that the current CTO may not extend beyond February 2020 was not a factor which was of any real concern.

96. In all of these circumstances, counsel’s submission was that whilst there was some risk of further offending, I could not be satisfied in all of the circumstances to a high degree of probability that any such risk was an unacceptable one.

CONSIDERATION

97. In considering the evidence and the submissions of the parties, two matters should be stressed at the outset.

98. The first, is that both parties accepted that the defendant poses some risk of further serious offending. The second, is that both parties also accepted that this case is unusual, in the sense that an order is being sought in circumstances where the defendant already has the benefit of a substantial network which provides comprehensive supervision and support of various kinds on an ongoing basis. That second matter assumes particular significance in the present case.

99. In all of these circumstances, and in light of the manner in which the proceedings have been conducted, there is a single issue for determination, namely whether I can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an ESO.

100. The principal, but not the only, support for the order sought are the opinions of Mr Ardasinski and Dr Martin. I have previously noted the fact that Mr Ardasinski prepared his report almost 12 months ago. As my summary of the relevant evidence indicates, a great deal has happened since that time in terms of the defendant’s progress. I have the benefit of a great deal of evidence in that regard which was obviously not available to Mr Ardasinski. His opinions must therefore be assessed in that context.

97. I have already set out the opinions of Dr Martin [126] . One of Dr Martin’s concerns stemmed from what he saw as the need to monitor “any worrying signs”. He took the view that the CTO did not address that issue in its entirety. Clearly however, Mrs Carney has assumed that monitoring role. In this respect, it is important to note that Dr Martin expressly accepted that those who normally detect a deterioration in the condition of a mentally ill person are those closest to that person. Mrs Carney certainly falls into that category.

    126. At [42]-[57] above.

98. Leaving aside what he saw as the inadequacy of the CTO, Dr Martin pointed out that there was no guarantee that it would be extended beyond its currently intended expiry in February 2020. Whilst this is undeniably the case, it must be emphasised that the CTO is not the only support that the defendant currently has in place.

99. Moreover, there is, in my view, some degree of displacement between Dr Martin’s ultimate opinions and his express acknowledgement that the defendant:

1. demonstrates a reasonable insight into the nature of his condition, the importance of taking medication, and the importance of avoiding substances;

2. does not currently express any violent ideation or intent;

3. does not appear to be currently suffering symptoms of any current metal illness;

4. does not suffer from any apparent current, or recent, instability;

5. appears to have responded reasonably well to treatment and supervision;

6. appears to have reasonable professional services and plans available to him;

7. appears to enjoy a stable living situation and good personal support;

8. is likely to maintain reasonable treatment and supervision response;

9. appears to have responded well recently to his situation;

10. does not appear to be unduly stressed by the future.

104. A primary focus of the present proceedings has been on the support network which the defendant currently has available to him. On any view of the evidence, that network is both substantial and multi-faceted. It comprises a combination of both lay and professional assistance, of which the defendant has availed himself consistently over a significant period. There is absolutely nothing to suggest that the defendant will not continue along that path. Indeed, there is every indication that he will.

105. The unequivocal opinion of Dr Furst does not support the making of the order. Moreover, and whilst it is impossible to predict, it would seem unlikely that the current CTO would not be extended for at least some period beyond its current proposed expiry. Importantly however, even if that proved to be the case, it would not result in the defendant, as it were, languishing in the community without any support. The remaining aspects of the support network that he currently has would remain. Moreover, as counsel for the defendant pointed out, and as Dr Furst noted, the defendant would, in those circumstances, still remain subject to the provisions of the Mental Health Act 2007 (NSW).

106. In order to make the orders sought, I must be satisfied to a high degree of probability that there is an unacceptable risk of the defendant committing another serious offence if he is not kept under supervision pursuant to an ESO. Whilst there is a risk, I am unable, for the reasons I have expressed, to be satisfied to the requisite standard that such risk is unacceptable. The defendant’s progress since his release, and the support which is available to him, lead me to the conclusion that the risk is not present to the point where the safety and the protection of the community cannot be ensured unless the orders sought are made. Whilst the gravity of the risk that could eventuate is significant, the present circumstances are such that in my view, the likelihood of the risk eventuating is very much at the lower end of the scale.

ORDERS

107. In these circumstances I make the following order:

1. The proceedings are dismissed.

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Endnotes

Decision last updated: 12 September 2019