State of New South Wales v Costigan (Final)

Case •

[2022] NSWSC 86

•

09 February 2022

Supreme Court


New South Wales

Medium Neutral Citation: State of New South Wales v Costigan (Final) [2022] NSWSC 86
Hearing dates: 7 February 2022
Decision date: 09 February 2022
Jurisdiction:Common Law
Before: Adamson J
Decision:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), make an extended supervision order in respect of the defendant for a period of three years from the date of this order on the conditions specified in the Schedule of Conditions to these reasons (the Conditions).

2.   Direct the defendant, pursuant to s 11 of the Act, to comply with the Conditions for the period of the extended supervision order made in order (1) above.

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

Catchwords:

HIGH RISK OFFENDERS — Extended supervision orders — Application

HIGH RISK OFFENDERS — Extended supervision orders — Unacceptable risk of committing a serious offence — Determination of risk — consideration of criminal history — where only one serious violence offence — where multiple violent offences

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4A, 5A, 5B, 5I, 9

Crimes Act 1900 (NSW), s 35

Cases Cited:

Minister for Immigration v Guo (1997) 191 CLR 559; [1997] HCA 22

State of New South Wales v Costigan (Preliminary) [2021] NSWSC 1386

Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
Brian Costigan (Defendant)
Representation:

Counsel:
K Curry (Plaintiff)
T Edwards (Defendant)

Solicitors:
Crown Solicitor’s Office (NSW) (Plaintiff)
Legal Aid Commission of NSW (Defendant)
File Number(s): 2021/210974

Judgment

Introduction

  1. By summons filed on 23 July 2021, the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) against Brian Costigan (the defendant) for a period of three years under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

  2. All references in these reasons to legislative provisions are, unless otherwise stated, references to the Act.

The statutory provisions

  1. The primary object of the Act is to ensure the safety and protection of the community: s 3(1). This is a paramount consideration in determining whether to make an ESO: s 9(2). A secondary object is to encourage high risk offenders to undertake rehabilitation: s 3(2).

  2. The threshold requirements for making an ESO are set out in s 5B. It was common ground that the defendant was an “offender” and a “supervised offender” for the purposes of the Act as he was, at the time the summons was filed, serving a sentence of full-time imprisonment following his conviction for a “serious violent offence” (ss 4A, s 5A and 5I), being recklessly inflict grievous bodily harm in company: s 35(1) of the Crimes Act 1900 (NSW). The summons was filed within nine months of the expiration of his current custody or supervision as the summons was filed on 23 July 2021 and the defendant’s sentence expired on 29 October 2021.

  3. The threshold question is whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if an ESO is not made: s 5B(d). Section 4 defines “serious offence” as, relevantly, “a serious violence offence – see s 5A”. Section 5A defines “serious violence offence” as a serious indictable offence that is constituted by a person “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.”

  4. If I am so satisfied, the question arises whether an ESO ought be made. The matters to be taken into account include the matters referred to in s 9(3) which will be addressed below.

The facts

  1. The plaintiff adduced substantial documentary evidence, which comprised documents relating to the defendant’s criminal and custodial history, as well as risk assessment reports. The risk assessment reports included reports of Samuel Ardasinski, a senior psychologist at the Serious Offenders Assessment Unit and Terry O’Brien, Senior Community Corrections Officer from the Extended Supervision Order Team. The evidence also included reports of the two experts, whose reports were ordered by Dhanji J following the preliminary hearing on 28 October 2021: Dr Melissa Hughes, a clinical neuropsychologist and forensic psychologist; and Dr Jeremy O’Dea, consultant forensic psychiatrist. The evidence has been the subject of detailed consideration in the parties’ written submissions. Only Dr Hughes was required for cross-examination. No evidence was adduced on behalf of the defendant. I confirm that I have considered the whole of the evidence although it is not necessary to summarise all of it in these reasons, having regard to the ambit of the issues for determination.

The defendant’s criminal and custodial history

  1. The defendant has a significant history of violent offending although only the index offence meets the definition of serious violence offence (see the summary below). He also has an entrenched history of substance abuse which underlies his offending conduct. The defendant has a pattern of offending while under the influence of illicit substances or in order to obtain illicit substances. The sentences imposed for his offences have required him to spend time in custody (see below). While in prison he has had resort to illicit drugs and has been involved in violent altercations with other inmates. Upon release, he has resorted to illicit drugs which has continued the cycle of offending. Although the defendant has a supportive family, his history demonstrates his inability to rehabilitate himself notwithstanding such support. He expresses himself violently by assaulting other inmates in gaol and by assaulting others, including intimate partners, when at liberty in the community. The triggers for such violence may be trivial and may arise from paranoid tendencies.

  2. The defendant’s violent behaviour began when he was a child. His parents separated when he was three years old. At an early age he had difficulty managing angry impulses and frequently became violent when he did not get his own way or objected to what was happening around him. This propensity towards violence has resulted in convictions for criminal offences.

  3. It is not necessary to detail the defendant’s entire criminal history. It is sufficient to summarise the defendant’s adult criminal history of violence in the table below, which does not include pending charges (which are referred to later in these reasons).

Date of offence

Offence

Circumstances

Sentence

1 November 2011 (defendant aged 18)

Common assault

Struck intimate partner’s face several times following the defendant’s suspicions that she had been unfaithful to him.

1 year imprisonment with 6 month non-parole period (NPP), expiring January 2014

29 June 2014

(defendant aged 21)

THE INDEX OFFENCE

Recklessly cause grievous bodily harm

The defendant and a co-offender (who was never identified) waved down a motor vehicle in which there were two passengers. The driver stopped to assist them. The co-offender assaulted the driver with a spirit bottle which struck him on the left side of his face near his eye and cheekbone. There were further assaults. The passengers ran away. The defendant drove the victim’s car away with his co-offender as a passenger. Shortly afterwards, the defendant caused the car to mount the kerb and crash through the front fence of a nearby property.

Injuries sustained by driver: fracture to maxillary and mandibular incisors with multiple loose teeth which needed to be removed, injuries to ear, right shoulder and mild head injury.

5 years’ imprisonment commencing 30 October 2016 and expiring on 29 October 2021 with NPP of 2 years and 6 months to commence on 30 October 2016 and expire on 29 April 2019.

21 October 2014

Assault occasioning actual bodily harm x 2

The defendant went to his then partner’s address. She was at home with her 8-month old baby. He was aggressive and drug-affected. He grabbed his partner around the throat and punched her repeatedly. He punched the baby several times, jammed his fingers down the baby’s throat, forced the bottle into the baby’s mouth, kicked the baby repeatedly and threw the baby across the room to a bed. He bit the baby’s legs and pressed the lit end of a cigarette into the baby’s forehead before going back to punching his partner. The defendant was arrested about a week later.

29 June 2020

Assault occasioning actual bodily harm

While on parole for the 29 June 2014 offence, assaulted his girlfriend with a torch following an argument in which he accused her of infidelity.

12 months’ imprisonment commencing 30 June 2020 concluding 29 June 2021 with NPP of 4 months commencing 30 June 2020 and concluding 29 October 2020.

  1. Due to other offending, the table above does not accurately indicate the periods spent by the defendant in custody. His custodial records show that he was taken into custody on 8 November 2012 and was released to parole on 25 July 2013. He was returned to custody on 30 December 2013. He was released to parole on 26 February 2014 but was returned to custody on 31 October 2014 following his arrest for the offences on 21 October 2014 (which includes the index offence).

  2. Although the defendant became eligible for parole on 29 April 2019, he was not released to parole until 7 April 2020. He returned to live at his mother’s house at Tenamit. It was a condition of his parole that he not use prohibited drugs. However, according to Police Facts, he moved into a hotel in Maitland some time prior to 29 June 2020 where he stayed with his then girlfriend whom he assaulted while under the influence of prohibited drugs. He was arrested on 29 June 2020 and returned to custody. On 12 August 2020, he was sentenced to a period of one year’s imprisonment with a non-parole period of 4 months. On 29 July 2020, the State Parole Authority revoked the defendant’s parole for the index offence and he was ordered to serve the remaining one year, four months and one day of his sentence in custody. He was eventually released to parole on 29 June 2021. Upon his release, he initially lived with his mother at Tenamit.

  3. On 23 July 2021, the plaintiff commenced these proceedings by filing the summons. On 17 August 2021, the defendant reported to his Departmental Supervising Officer (DSO), a Community Corrections Officer (CCO) who was responsible for monitoring him, that, on 12 August 2021, he had relapsed by smoking ice and cannabis, having found it difficult to abstain. The defendant told the DSO that he had cravings when he had withdrawal symptoms. The Offender Integrated Management System (OIMS) case notes for 17 August 2021 recorded:

“[The defendant] notices his behaviour changes and he can become agitated. He claimed when his mental health decreases and he feels overwhelmed by his thoughts he will usually lapse to avoid ongoing thoughts. His thoughts include not feeling like he is coping, feelings of guilt for life decisions and self-doubt.”

  1. The DSO contacted the defendant’s National Disability Insurance Scheme (NDIS) caseworker and also a caseworker at Housing Plus in Initial Transition Service to see if alcohol and drug rehabilitation and mental health treatment could be arranged. The OIMS notes recorded, on 20 August 2021, the possibility of a residential rehabilitation program “to address his illicit drug use in a stable/therapeutic environment.” The OIMS notes also recorded, on 24 August 2021, that the DSO had difficulty in identifying a general practitioner who could help the defendant as the practice approached by the DSO was not accepting new patients due to COVID-19 restrictions. Towards the end of August 2021 and the beginning of September 2021, the DSO could not communicate with the defendant as his phone went straight to message and no one answered the door at his mother’s address.

  2. On 6 September 2021, the defendant contacted his DSO and told her that he had gone to Wallsend to support a friend (who may have been LW, an intimate partner, or someone associated with her), whose father had died. The defendant told his DSO that all of his things had been stolen, including his mobile phone. He was advised that he was required to attend Community Corrections the following day as his DSO had arranged for a review of the plan which the NDIS had approved in January 2021 in respect of the defendant.

  3. On 7 September 2021, the DSO learned that it had been alleged that the defendant had assaulted LW and her ex-partner, G. The DSO decided to implement a curfew restriction, imposing a curfew from 6pm until 6am and also a restriction that prohibited the defendant from entering the Newcastle Local Government Area. LW alleged that the defendant had pushed her down the stairs and made her take ice. At a supervision meeting with his DSO on 7 September 2021, the defendant was given a formal warning that he must not use prohibited drugs and that he must report in accordance with the conditions of his interim supervision order (ISO). The DSO also discussed a NDIS plan with the defendant. It appears that there was a subsequent discussion between the defendant and his NDIS caseworker about a plan.

  4. According to the Police Facts Sheet, at about 4pm on Saturday 18 September 2021, the defendant and LW were in the backseat of a vehicle when the defendant turned and punched LW on the left side of her forehead, causing a minor laceration and bruising. This led to the defendant being charged with assault occasioning actual bodily harm.

  5. According to the Police Facts Sheet, on Sunday 19 September 2021, at about 10.30am, the defendant and LW were at LW’s home in Telarah when the defendant asked LW where his cigarettes were. When LW told him that she did not know, he threatened to break her jaw. LW ran down the street to another house and managed to get to the front verandah. The defendant punched her three or four times on the back of her head and spun her around and punched her on the left side of her jaw. The owner of the house came to the front door and let LW in. The defendant told LW that if she called the police, he would burn her house down. LW suffered a bump and soreness to the back of her head and a 3cm laceration to her chin, which caused her to bleed.

  6. The defendant was returned to custody on 19 September 2021, having been charged with two offences of assault occasioning actual bodily harm and stalk/intimidate LW (the September 2021 charges). The police successfully applied for an Apprehended Domestic Violence Order (ADVO) to prohibit the defendant from contacting or communicating with LW.

  7. At the time of the conduct which was the subject of the September 2021 charges, the defendant was not on any opioid replacement, having refused it. LW was herself subject to a 16-month Intensive Corrections Order (ICO) which was due to expire on 17 November 2021.

  8. In a report dated 21 September 2021, the DSO recommended that parole be revoked. The reasons for the recommendation were as follows:

“Community Corrections has made this recommendation because we are unable to mitigate [the defendant’s] risk in the community. His offending behaviour and his increase in violence which is influenced by his drug use and pro-criminal attitudes raises significant concern for the safety of the community.”

  1. The DSO’s unit leader included this addendum at the end of the report:

“[The defendant’s] historical and current violent offending poses too great a risk to community safety. [The defendant] has complex needs and case management has attempted to ensure that support is in place, however he has disengaged with support providers. The current risk of serious violence is not being addressed.”

  1. The DSO also said in the report:

“Immediate supervision plan

[The defendant] is currently bail refused, however if he is not sentenced to a period of imprisonment the following supervision plan will be implemented:

●   Continue with cognitive behavioural intervention through completion of Practice Guide to Intervention activities specifically in relation to Managing Cravings and develop lapse plan.

●   Provide assistance to [the defendant] to engage in AOD [alcohol and other drugs] interventions through the Salvation Army.

●   Conduct scheduled and unscheduled home visits to monitor [the defendant] (sic) reintegration into the community and his stability in his current environment.

●   Continue to liaise with the Initial Transitional Support (ITS) case manager regarding [the defendant’s] engagement in AOD intervention as well as MH [mental health] treatment and disability support services.

●   Third party checks to be undertaken to canvass his response to behaviour change exercises, particularly in relation to his drug use, attitude and verify any concerns.

●   Canvass [the defendant’s] willingness to participate in a residential rehabilitation program to address his illicit drug use in a therapeutic environment.

●   Verify engagement with NDIS for ongoing support and stability.”

  1. The September 2021 charges led to the revocation of the defendant’s parole with respect to the index offence, as a result of which he was required to serve the balance of his sentence for the index offence, which was due to expire on 29 October 2021. The order revoking the parole order was made on 6 October 2021, but the parole order was treated as having been revoked on 18 September 2021.

The ISO

  1. On 28 October 2021, Dhanji J made an ISO in respect of the defendant. The ISO was made substantially in accordance with the conditions sought by the plaintiff. However, his Honour declined to impose the following conditions which had been sought by the plaintiff:

“Part I: Access to the Internet and other electronic communication

33. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.

34. The defendant must not use any alias, electronic identity, log-in name, name other than "Brian Costigan" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

35. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

…

38. The defendant must not use any coded or encrypted messaging application or service.

…

40. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi-player video games and other telecommunications-based services including text and voice services.

41. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

…

43. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

…

Part L: Personal details and appearance

46. The defendant must not change his name from "Brian Costigan", or use any other name, without notifying a DSO.

47. The defendant must not significantly change his appearance without the approval of a DSO.

…

49. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.”

The defendant’s conduct following his release pursuant to the ISO

  1. The defendant remained in custody on remand with respect to the September 2021 charges until 10 November 2021, when he was granted bail. His liberty was subject to the ISO made by Dhanji J. As required by the conditions of his ISO, he was fitted with an ankle bracelet to allow electronic monitoring of his movements. The defendant returned to live with his mother at Tenamit. However, within a week, his mother raised concerns about his conduct with his DSO, whom she told that she would prefer that the defendant reside elsewhere.

  2. A change of residence was arranged and the defendant moved to temporary accommodation at Motto Farm, a motel in Heatherbrae. On 21 November 2021, the DSO conducted an unscheduled home visit to the motel room and found the defendant’s niece and her friend (both minors) there. Contrary to the conditions of the ISO, the defendant had not obtained prior approval for this visit. Further, he was in breach of the condition that he not associate with minors. In addition, his phone indicated that, on 19 November 2021, he and LW had communicated with each other in breach of the ADVO. It appears that LW instigated the contact and sent him a message through Facebook messenger at 11.29pm on 19 November 2021:

“I’m glad you’re out I never wanted U to get locked up hey I miss U.”

  1. In further messages, LW raised the prospect of sexual intercourse between them to which the defendant responded positively.

  2. On 22 November 2021, the defendant met with the DSO and others to discuss accommodation and other matters, including the unauthorised contact with LW. The defendant, who denied that he had used illicit drugs, consented to a drug test.

  3. A drug test conducted on 24 November 2021 detected amphetamine and methyl amphetamine. This constituted a further breach of the defendant’s ISO. Subsequently, on 25 November 2021, the defendant breached his ISO and the rules of the hotel by having a woman, CE, spend the night there. As a consequence, the owner of Motto Farm informed the DSO that the defendant was no longer permitted to reside there. The DSO arranged for the defendant to move to Sanctuary Place at Maitland on 26 November 2021.

  4. On 30 November 2021, the defendant received a written warning from his DSO that he had breached various conditions of his ISO, including having visitors without the prior approval of the DSO; not associating with minors; and not have contact with LW.

  5. The OIMS case notes for 6 December 2021 recorded:

“This morning [the defendant] breached his approved schedule and attended the shops on the way to Maitland Local Court. [The defendant] attended the Community Corrections Office to briefly discuss the breach of his condition. Recognised we have already had previous discussions regarding his EM [electronic monitoring] conditions and that he must have prior approval from his DSO. Advised his deviation has breached his ISO conditions. [The defendant] had minimal insight into his deviation and appeared to justify his deviation stating he lost his telephone so he was unable to contact DSO to request permission.”

  1. On 8 December 2021, the DSO directed the defendant to attend the Maitland Police Station to be charged with breaches of his ISO. On that day, he cut off his electronic monitoring equipment. This triggered a tamper alert which notified the Electronic and External Monitoring Group what had occurred. The defendant failed to attend the Maitland Police Station and could not be found. On 9 December 2021, the defendant was charged with four offences of breaching his ISO and one charge of destroying or damaging property (the electronic monitoring equipment).

  2. The defendant remained at large until his arrest on 20 December 2021. He was eventually found in the company of LW. Other than breaching his ADVO in respect of LW, there was no suggestion that he had otherwise offended against her at this time. He was charged with breaching the ADVO in respect of LW on 20 December 2021. He has pleaded guilty to this offence. As a result of the offence and the outstanding charges, bail was revoked and the defendant was returned to custody, pending determination of the outstanding charges which are listed for mention on 24 February 2022 and 30 May 2022. It is not yet known when they will be determined.

Other community supports

  1. It would appear to be common ground that the NDIS plan will continue. The material in evidence does not provide detail as to what the NDIS plan will involve.

  2. Although the defendant worked as a labourer between the ages of 17 and 19, he has otherwise been unemployed. He is unlikely to obtain employment until his substance use disorder has been adequately treated.

  3. Although the defendant’s mother provides him with emotional support, it is neither practical nor suitable for him to reside with her. She would appear to be unable to control his conduct or his substance abuse.

Risk assessments

  1. As referred to above, the evidence has included several risk assessments relating to the defendant. The risk posed by the defendant to the community is sufficiently summarised in the following extract from Mr Ardasinski’s report dated 21 May 2021:

“[45] [The defendant’s] upbringing was fractured and he was not provided adequate boundaries growing up, with his father demonstrating a poor role model as regards substance use. Being brought up outside of his mother’s home, with intermittent access to her and his siblings, resulted in an insecure attachment style. At school, he was bullied because of his cognitive impairment, and responded with violence. In his early teenage years, [the defendant] began to abuse substances himself, and this escalated into his late adolescence. He associated with criminal peers and started to commit crime to fund his increasing drug habit. His association with these peers and uncontrolled drug use led to his involvement in the index serious violence in 2014. Within relationships, due to his anxious-ambivalent attachment style and his self-esteem issues surrounding his intellectual disability stemming from his school days, [the defendant] fears rejection and this has resulted in domestic conflict. He has escalated to physical violence within these relationship conflicts when he has been under the influence of a cocktail of drugs, including ‘Ice’.

Risk scenarios

[46] The structured professional judgement tools available allow for the formulation of likely “possible futures”, or risk scenarios, based on the pattern of offending prior to assessment. [The defendant’s] most likely scenarios for further violent offending would involve either his being intoxicated and in the company of criminal peers and involving himself in criminal activities which may involve spontaneous violence against others; however, the more likely scenario for future violence is within a domestic setting. [The defendant] has demonstrated that he has no difficulty starting new relationships, however these quickly descend into conflict and violence. While he has yet to escalate to serious violence within these setting previously, I consider that this is simply by virtue of victim resistance or simple providence - without further intervention or supervision or both, and support to abstain from drug use in the future, it is likely that domestic violence scenarios will recur and the likelihood of serious violence within these settings is considered high.”

Consideration

Whether the threshold for an ESO has been met

  1. As referred to above, the first question is whether the threshold requirement in s 5B(d) is met: that is, whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

  2. The evidence establishes that the defendant has a high risk of further violent offending. The risk profiles referred to by the experts in their reports do not distinguish between the risk of committing a further serious offence (as defined in the Act) and the risk of committing a further violent offence, which may not amount to a serious offence.

  3. The risk to the community posed by the defendant derives from a number of factors, principally his inability to control his anger and chronic substance abuse. At the time of his commission of the index offence he was, on his own report (as recorded in the pre-sentence report), consuming $200 worth of ice per day and had been on a “drug binge” for about three months before the offending.

  4. The chronic substance abuse with prohibited drugs leads the defendant to associate with criminals, disinhibits him and inclines him to express himself violently in response to perceived threats or imagined infidelity by an intimate partner. While at liberty he is generally violent towards intimate partners although his victims also include other men (as in the index offence). While in custody, he regularly incurred institutional misconduct charges for failing drug tests and also for violence. His custodial records indicate that he has been involved in fights on at least eight occasions. These occasions include incidents in February and March 2021 and not infrequently involved the defendant punching another inmate’s head in response to a dispute about a minor matter.

  5. The issue between the parties turns on the definition of serious offence. Mr Edwards, who appeared for the defendant, contended that while it was accepted that I could be satisfied to a high degree of probability that the defendant would commit another violent offence if not kept under supervision, he argued that I could not be so satisfied that he would, in those circumstances, commit another serious offence, as defined by the Act. Mr Edwards relied on the fact that the index offence was the only serious offence which the defendant had committed and argued that it did not fit into the defendant’s general pattern of offending. Mr Edwards contended that the distinguishing features of the index offence included that it was committed in company with another male against another adult male and that the defendant himself did not inflict the blow which caused the wounding. He submitted that it was significant that the defendant had not, by his own acts (as opposed to acts for which he was responsible in accordance with the principles of joint criminal responsibility), ever caused another to suffer grievous bodily harm, as distinct from actual bodily harm. Mr Edwards distinguished the index offence from the defendant’s usual pattern of offending of assaulting a female with whom he was in an intimate relationship when no one else (except in the case of the 2014 offences, a young child) was present.

  6. The wording of the definition of “serious offence” is significant. It is defined as a serious indictable offence that is constituted by a person “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.” It follows that the consequences for the victim - death or grievous bodily harm (meaning really serious harm) - must be serious but the defendant’s intention need be no more than to cause actual bodily harm or recklessness as to causing actual bodily harm. Thus, whether an offence is a serious offence depends on extraneous factors, such as the hardness of the surface of the floor on which the victim falls when she is punched; whether the baby when thrown lands on a bed, or on the floor; whether, when the baby is kicked, she suffers trauma to her head or breaks her spine, or simply sustains a bruise and whether the blood flow from the laceration can be staunched or results in a major haemorrhage. It could not reasonably be suggested that the defendant (or, indeed, any offender) is capable of calibrating the consequences of an assault so as to achieve actual bodily harm but fall short of grievous bodily harm. This is particularly so when the trigger for offending behaviour would appear to be the use of ice.

  7. The incidents in gaol where the defendant has punched another inmate’s head could readily fulfil the definition of serious offence, if the consequences for the victim were sufficiently serious. It is a matter of common experience in the courts that a single punch can lead to grievous bodily harm or death, although, on occasions, the force of the impact causes no more than transient soreness or bruising in the victim.

  8. The past is generally regarded as a guide to the future (see, for example, Minister for Immigration v Guo (1997) 191 CLR 559 at 575-576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); [1997] HCA 22). In the present case, the defendant and his victims have been fortunate that the harm he inflicted was not greater. Each of the assaults committed by the defendant carried with it a risk that the victim would suffer grievous bodily harm. There is an overwhelming likelihood, bordering on a certainty, that the defendant will, without supervision, continue to commit assaults (his recent conduct being a regrettable indication of this propensity), at least until his substance use disorder is appropriately treated. Although it is a matter of chance whether any of these future assaults will result in grievous bodily harm, each future assault carries a substantial risk that the harm to the victim will fall into this category. In these circumstances, I am satisfied to a high degree of probability that there is a high risk that the defendant will, unless an ESO is made, commit another serious offence.

Whether an ESO ought be made

  1. In these circumstances, I am persuaded by the evidence and the comprehensive submissions made by Ms Curry, who appeared for the plaintiff, that an ESO ought be made. It is also significant that Mr Edwards accepted that, if I was satisfied that the threshold had been reached, it was appropriate to make an ESO. Recent evidence has demonstrated the salutary effect of the ISO. But for the ISO, the defendant’s recourse to prohibited drugs would not have been detected and he would have continued to abuse substances without any effective supervision in the community. The ISO meant that at least he was under supervision and his conduct could be monitored. These measures go some way to ameliorating the risk posed by the defendant. Further, it is significant that the DSO contemplates residential drug rehabilitation for the defendant as a way of assisting him to overcome his substance abuse disorder and proposes to arrange for him to be admitted to such a facility when his court matters have been resolved. But for the assistance of the DSO, it is unlikely that the defendant will be either willing or able to arrange for such rehabilitation. There is no evidence on the basis of which I could conclude that the other community supports, such as the NDIS plan, would be adequate for this purpose, without an ESO.

  2. It is, accordingly, necessary to turn to the conditions proposed by the plaintiff.

The conditions on which the ESO ought be granted

  1. Mr Edwards did not dispute any of the conditions imposed by Dhanji J on the ISO which was made on 28 October 2021. However, he disputed the additional conditions which the plaintiff sought which were not regarded as necessary by Dhanji J.

  2. The disputed conditions fall into two categories: those in Part I: Access to the internet and other electronic communications; and those in Part L: Personal details and appearance. These will be addressed in turn.

  3. The conditions sought by the plaintiff under Part I at the hearing of its application for an ISO were as follows:

“Part I: Access to the internet and other electronic communication

33. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.

34. The defendant must not use any alias, electronic identity, log-in name, name other than "Brian Costigan" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

35. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

36. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

37. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

38. The defendant must not use any coded or encrypted messaging application or service.

39. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.

40. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi-player video games and other telecommunications-based services including text and voice services.

41. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

42. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

43. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.”

  1. Dhanji J accepted the defendant’s submissions at the preliminary hearing that conditions 33, 34, 35, 38, 40, 41 and 43 were not required as there was no evidence that the defendant used the internet. This explains why Dhanji J made conditions 36, 37, 39 and 42, which principally relate to mobile phones, and not the balance of the conditions in that Part. However, the communications between LW and the defendant in November 2021, which post-dated the making of the ISO, were made via Facebook messenger, which is an application downloaded from the internet. Thus, the distinction which his Honour drew on 28 October 2021 became otiose once the defendant began to use Facebook messenger. While the defendant’s use of the internet may be limited (it would not appear that he uses email or dating apps or accesses websites), he does, and can, use it to communicate in an analogous way to the sending and receiving of text messages. For these reasons, I am satisfied that the conditions omitted from Part I by Dhanji J when making the ISO ought be included in the ESO.

  1. The conditions sought by the plaintiff under Part L at the hearing of its application for an ISO were as follows:

“Part L: Personal details and appearance

46. The defendant must not change his name from "Brian Costigan", or use any other name, without notifying a DSO.

47. The defendant must not significantly change his appearance without the approval of a DSO.

48. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

49. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.”

  1. Of these conditions, Dhanji J included only condition 48. Ms Curry submitted that these conditions were designed to ensure that the police could locate the defendant if he absconded, as occurred in December 2021 for a period of about a fortnight. Once again, this occurred after the preliminary hearing before Dhanji J. The OIMS case notes indicate that the police endeavoured to locate the plaintiff without success for about two weeks. In these circumstances, I consider that conditions 46 and 49 are necessary. I regard condition 47 as excessive since, if the defendant wants to change his appearance, for whatever reason, there would not appear to be any reason why he ought not to do, as long as he notifies his DSO within 12 hours of doing so. This time period ought also be inserted in condition 48 to require the defendant to allow the DSO to photograph him within 12 hours of a significant change in his appearance.

  2. The plaintiff seeks an ESO for a term of three years. I am persuaded that this is an appropriate length of time for such an order in the present case.

  3. The plaintiff also seeks ancillary relief regarding access to the Court file. As this application was not opposed, I am disposed to grant it.

Orders

  1. For the reasons given above, I make the following orders:

  1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), make an extended supervision order in respect of the defendant for a period of three years from the date of this order on the conditions specified in the Schedule of Conditions to these reasons (the Conditions).

  2. Direct the defendant, pursuant to s 11 of the Act, to comply with the Conditions for the period of the extended supervision order made in order (1) above.

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

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SCHEDULE OF CONDITIONS OF SUPERVISION

BRIAN COSTIGAN

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means Brian Costigan, also known as Brian Alex Dan Costigan, Brian Alex Costigan and Brian Nean, the defendant in these proceedings and the subject of the order.

“Digital Blueprint” has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

“Electronic Identity” means each of the following:

  1. an email address,

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

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

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

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

“Material” includes:

  1. any written or printed material;

  2. any picture, painting or drawing;

  3. any carving, sculpture, statue or figure;

  4. any photograph, film, video recording or other object or thing from which an image may be reproduced;

  5. any computer data or the computer record or system containing the data; and

  6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

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

“Search” includes:

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

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

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

  1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

  2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

  3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

  4. The defendant must agree to any information being shared between agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

Electronic Monitoring

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

Schedule of Movements

  1. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

  2. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period

  3. The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

  1. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

  2. The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.

  3. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

  4. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

  5. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Part C: Place and travel restrictions

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

  2. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.

  3. The defendant must not frequent or visit any place or district specified by a DSO.

Part D: Employment, finance and education

  1. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.

  2. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.

  3. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO.

  4. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

Part E: Drugs and alcohol

  1. The defendant must not possess or use prohibited drugs or drugs unlawfully obtained.

  2. The defendant must not possess or consume alcohol without the prior approval of a DSO.

  3. The defendant must submit to drug and alcohol testing.

  4. The defendant must not enter any licensed premises including hotels, bars, racecourses and licensed clubs, but excluding cafes and restaurants, without the prior approval of a DSO.

  5. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

Part F: Non-association

Association with Children

  1. The defendant must not associate with anyone who he knows is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in advance by a DSO.

Associations with Others (not children)

  1. The defendant must not associate with any person or persons specified by a DSO.

  2. Without limiting condition 32, the defendant must not:

    1. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO.

    2. associate with any people who he knows are consuming or under the influence of illegal drugs.

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

  3. If the defendant intends to start a close social relationship with someone, starts a romantic or sexual relationship with someone, or commences a friendship with a woman, he must notify his DSO within 24 hours and truthfully answer any questions the DSO asks regarding the relationship.

  4. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary, having regard to community safety. In cases involving a close social relationship, the DSO will first give the defendant an opportunity to inform the person himself.

  5. The defendant must obtain prior approval from a DSO prior to joining or affiliating with any club or organisation.

Part H: Weapons

  1. Without limiting or altering condition 38, the defendant must not possess or use any of the following, without a DSO’s prior approval:

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

    2. any other implement made or adapted for use for causing injury to a person; or

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

Part I: Access to the internet and other electronic communication

  1. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.

  2. The defendant must not use any alias, electronic identity, log-in name, name other than “Brian Costigan” or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

  3. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

  4. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

  5. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

  6. The defendant must not use any coded or encrypted messaging application or service.

  7. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.

  8. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet- based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.

  9. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

  10. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

  11. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J: Search and seizure

  1. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

  2. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order.

Part L: Personal details and appearance

  1. The defendant must not change his name from “Brian Costigan”, or use any other name, without notifying a DSO.

  2. If the defendant significantly changes his appearance, he must notify a DSO within 12 hours.

  3. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and within 12 hours of any significant change to his appearance.

  4. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details within 24 hours.

Part M: Medical intervention and treatment

  1. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

  2. The defendant must take medications that are prescribed to him by his health care practitioners only in the manner prescribed.

  3. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

  4. The defendant must agree to his drug, alcohol, psychological or psychiatric treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

Decision last updated: 09 February 2022

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