State of New South Wales v Craig Anthony Turner (Preliminary)

[2019] NSWSC 282

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Craig Anthony Turner (Preliminary) [2019] NSWSC 282
Hearing dates:	8 March 2019
Date of orders:	21 March 2019
Decision date:	21 March 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. Pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) I make an interim order for the detention of the defendant for a period of 28 days commencing on 31 March 2019.  2. The proceedings are listed before me for further directions at 2.00 pm on 29 March 2019.
Catchwords:	HIGH RISK OFFENDER – Preliminary application – Where plaintiff sought an Interim Detention Order for a period of 28 days – Defendant’s history of violent offending – History of non-compliance with conditions of parole – Evidence of possible schizophrenic condition – Where such condition not formally diagnosed and thus untreated – Interim Detention Order made
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Attorney-General for the State of NSW v Tillman [2007] NSWSC 605 Cornwell v Attorney-General for NSW [2007] NSWCA 374 State of NSW v Anderson [2015] NSWSC 1515 State of NSW v Holschier [2014] NSWSC 867 State of NSW v Holschier (No.2) [2018] NSWSC 1921
Category:	Principal judgment
Parties:	State of NSW – Plaintiff Craig Anthony Turner – Defendant
Representation:	Counsel: P Aitken – Plaintiff S Climo – Defendant   Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid Commission of NSW – Defendant
File Number(s):	2019/37393
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By a summons filed on 4 February 2019 the State of New South Wales (the plaintiff) seeks (inter alia) the following orders:

1. an order pursuant to ss 5D(1) and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (the Act) that the defendant be the subject of a continuing detention order for a period of one year.

2. an order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for such period.

3. at the expiry of the continuing detention order:

1. an order pursuant to ss 5C(1) and 9(1)(a) of the Act, that the defendant be subject to an extended supervision order for a period of five years from the date of the order; and

2. an order pursuant to s 11 of the Act directing the defendant, for the period of such extended supervision order, to comply with the conditions set out in Schedule A to the summons.

2. In the alternative, the plaintiff seeks:

1. an order pursuant to ss 5C(1) and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 5 years; and

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

3. The proceedings are presently before the Court for a preliminary hearing. The principal orders sought by the plaintiff at this stage are:

1. an order appointing two qualified psychiatrists and/or registered psychologists pursuant to ss 15(4) or 7(4) of the Act; and

2. an interim detention order pursuant to s 18A of the Act for a period of 28 days or, in the alternative, an interim supervision order pursuant to s 10A for that same period.

4. The defendant is currently in custody following the revocation of his parole in respect of offences committed on 30 March 2016. His sentence will expire on 31 March 2019.

The evidence

5. The following affidavits were read by the plaintiff:

1. Shawanah Tasneem affirmed 4 February 2019;

2. Shawanah Tasneem affirmed 21 February 2019;

3. Amanda Carden affirmed 21 February 2019;

4. Amanda Carden affirmed 5 March 2019;

5. Sherice Cieplucha affirmed 6 March 2019;

6. Shawanah Tasneem affirmed 7 March 2019; and

7. Annette Caffery affirmed 12 March 2019.

6. Ms Carden, a Community Corrections Officer, gave oral evidence in the course of the hearing before me. She said that in concluding that there was uncertainty as to the adequacy of the defendant’s response to any interventions, she took into account the fact that his psychiatric state was largely unknown. [1] She further explained [2] that whilst it was not a determinative factor, the absence of information regarding the defendant’s suggested psychiatric state rendered it essentially impossible to look for an appropriate accommodation provider. She also said that whilst the defendant had expressed a preference for living in the Albury area, the risk assessment had indicated that there was nowhere appropriate within that area at which he could do so. [3]

   1. Commencing at T5.48.

   2. Commencing at T6.7.

   3. T7.6-T7.13

7. When cross-examined, Ms Carden agreed that one of the reasons why temporary accommodation options had not been pursued was because the defendant had not signed the necessary consent to allow that to take place. [4] She agreed that such a process could be undertaken if consent to do so was forthcoming, [5] and that there was no evidence that the defendant was unable to live independently. [6] She also agreed that there was no evidence that the defendant had ever sought to approach the victims of his most recent offending. [7]

   4. T7.17-T7.34.

   5. T7.37-T7.39.

   6. T8.20-T8.22.

   7. T9.3-T9.5.

The defendant’s background

8. I draw the following background, which is not generally in dispute, from the written submissions of counsel for the plaintiff.

9. The offender is currently 46 years of age. His parents separated when he was about 5. His mother remarried when he was 13 years of age and he had a difficult relationship with his stepfather. At about 14 years of age he commenced residing with a family friend, JM, who lived at a local showground where he was a caretaker. In about 2009 the defendant disclosed that JM had sexually abused him and had supplied him with alcohol and drugs whilst they lived together.

10. The defendant completed his schooling at about 16 years of age and was thereafter unemployed for significant periods. He has had periods of casual employment at various times. He has spent the majority of his adult life living in the Albury area.

11. In or about 1996 the defendant commenced a de facto relationship with a person to whom I shall refer as IC. That relationship produced two sons. IC also has a son and a daughter from a previous relationship. The relationship between the defendant and IC ceased following the commission of the offences on 30 March 2016.

An overview of the defendant’s history

12. The defendant’s history, including his criminal history, is summarised in the following table taken from the written submissions of counsel for the plaintiff:

DATE	EVENT
30 May 1972	The Defendant born (currently 46 years old).
29 Aug 1993	Commits offence of using an offensive weapon (firebomb) with intent to commit an indictable offence (assault)
11 May 1994	Failed to appear at trial (on bail at time). Warrant issued for arrest.
29 Jan 1994	Alleged firearm offences committed when evading capture on his warrant. It appears the Defendant was subsequently acquitted of these offences".
30 Jan 1994	Commits offences of escaping lawful custody, being armed with intent to commit indictable offence and possession of loaded firearm.
19 May 1995	Sentenced by Twigg DCJ for using offensive weapon (firebomb) offence. Sentenced to 4 years imprisonment with a 2-year non-parole period (NPP) commencing 30 June 1994. Psychiatric assessment prepared by Dr Jolley relied on in sentencing (last known psychiatric assessment before February 2019).
24 May 1995	Sentenced at the Griffith Local Court - to a fixed terms of 6 months for the offences committed 30.06.94
29 Jan 1996	Released to parole
approx. 1996	Begins his relationship with IC.
21 Mar 1998	Commits two offences of common assault. Sentenced to 7 months imprisonment with a two-month NPP.
29 Jan 1998	Completes parole period for offensive weapon (firebomb) offence.
18 Jan 1999	Commits contravene AVO offence (IC's AVO; fine imposed).
8-9 Aug 2001	Commits offences of resist, hinder and assault police and possess a knife in a public place. Sentenced to 3 months imprisonment.
4-5 Nov 2001	Commits the offence of use offensive weapon (shotgun) to prevent a police investigation.
6 Jan 2002	Sentenced (after trial) by Patten DCJ for the shotgun offence to 4 years imprisonment with 2-year NPP commencing 10.04.02.
9 Apr 2004	Released to parole.
9 Apr 2006	Parole period for the offence of use offensive weapon (shotgun) expires.
22 Feb 2007	Contravenes AVO concerning his stepdaughter (fine imposed).
27 Feb 2009	Commits offences including drive vehicle recklessly (sentenced on 22.04.10). Sentenced to 4 months imprisonment (in April 2010).
4 Oct 2009	Commits two counts of common assault on two male persons at home he visited (seeking alcohol). Sentenced to a fixed term of l month imprisonment (in April 2010).
29 Nov 2009	Commits Assault occasioning actual bodily harm (AOABH), armed with intent to commit an indictable offence, and damage property (whilst on bail). Sentenced on 22.04.10 to of 20-months imprisonment commencing 2.12.09 with a 12-month NPP expiring 01.12.10 for the offences committed in 2009.
2009	Discloses the sexual abuse he suffered as a child. About this time also reports being diagnosed with bone cancer and using cannabis resin oil for pain management (no records to confirm this claim and no record of him being treated for the same in custody).
Apr 2010	Sentenced to a total term of 20-months imprisonment commencing 02.12.09, with a 12-month non-parole period, for the 2009 offences.
1 Dec 2010	Released to parole.
20 Dec 2010	Approved to reside at the premises of friends of his partner so he could have access to his children. On this date directed not to reside with his partner after receiving a report from police that police had been called to the partner's residence and directed him to leave's.
7 Mar 2011	Parole revoked for non-compliance.
1 Aug 2011	Parole period expires (released).
26 Aug 2012	Commits possess and supply prohibited drugs. Sentenced to 120 hours community work order (which he completed).
30 Mar 2016	Commits Index Offence (reckless GBH) and other offences.
30 Nov 2016	Sentenced by Baly DCJ for the Index Offending to an aggregate term of 3-years commencing 30.03.16 to expire 29.03.19, with a non-parole period of 1 year and 10 months to expire on 29 January 2018.
2 Apr 2016	Justice Health notes the Defendant used methamphetamine on a daily basis (2 points) in the lead up to his return to custody.
17 Oct 2017	The Defendant offered placement in the EQUIPS Addiction program but declined to participate.
15 Dec 2017	The Defendant declined to be referred to the Violent Offender Treatment Programme (VOTP) noting his pending release.
25 Jan 2018	Released to parole. Commences residing in a caravan in Albury area. Later subject to electronic monitoring.
1 May 2018	Tests positive to cannabis and methamphetamines. Admits cannabis use but denies methamphetamine use.
16 May 2018	Returned to custody for breach of parole.
7 Aug 2018	Re-released to parole with electronic monitoring.
18 Oct 2018	Returned to custody for breach of parole including not complying with schedule and not following directions to participate in therapeutic programs.
20 Dec 2018	RAR prepared by Ms Gillian Tulloh.
18 Feb 2018	Dr Elliot completes his psychiatric report.
31 Mar 2019	Sentence set to expire.

13. It is appropriate at this point to make some observations about the defendant’s criminal history.

Offences of 29 August 1993

14. On 28 August 1993 police attended the residence of a police officer in Griffith after a reported disturbance. At the scene, the defendant argued with the police officer who lived there and threatened him. The defendant was then told to leave the premises. He left, but later told people there that he intended to burn down the officer’s home when his wife and child were in it.

15. The defendant returned to his home and made a bomb by half filling an empty glass beer bottle with petrol, and inserting a rag as a wick. In the early hours of 29 August 1993, the defendant stood on the footpath in front of the officer’s home, lit the wick and threw the bomb at the house. The bomb struck a large tree which was positioned a short distance in front glass windows at the front of the house, and exploded. The bomb extinguished itself. The officer’s wife was asleep inside. She was 7 months pregnant at the time.

16. The defendant was arrested two days later. He admitted committing the offence but denied knowing that the officer was married, or that his wife was inside the house when he threw the bomb. He said that he would have been unconcerned if the officer had been injured. He said that he intended to hit the tree rather than the house, but conceded that if the tree had caught fire it likely would have resulted in the house burning down.

Offences of 30 June 1994

17. At about midday on 30 June 1994 police received information that the defendant was at his home in Griffith. Police attended but the defendant managed to leave through a rear window, before crawling underneath the house with a rifle. He did not engage with police for more than 3 hours. At about 6.00pm that day the defendant emerged from underneath the house with his gun and escaped the police perimeter around the house. He was pursued as he ran to a nearby street and into the rear yard of premises where he discarded the firearm and hid. Police located him and arrested him.

Sentencing for the August 1993 and June 1994 offences

18. At the time of his sentencing for the offences committed in August 1993 and June 1994, a pre-sentence report noted that the defendant had started to use cannabis and alcohol at about the age of 15, and amphetamines at about the age of 17. He was assessed by Dr Jolly, Psychiatrist, who provided a report of 9 February 1995 in which he expressed the view that the deterioration of the defendant’s wellbeing coincided with an escalation in his drug use. In particular, Dr Jolly stated:

Regarding his present mental state, Mr Turner is reactively (and appropriately) anxious anticipating a penalty in terms of a custodial sentence and a variety of thoughts are going through his head in this regard…At recent consultation, the (sic) was certainly no evidence of florid psychosis, and whilst in jail most inmates are “suspicious”. Craig Turner did not strike me as having some deeply hidden and well encapsulated “delusional system”, just lurking there so to speak. Anxiety intrudes into his day by day psychobiological functioning, but I could find no consistent evidence of psychomotor retardation, say, which warrant (sic) the prescription of a contemporary antidepressant.

19. In sentencing the defendant, his Honour Judge Twigg QC rejected the defendant’s assertion that he only ever intended to throw the bomb at the tree, and not the officer’s house. However, his Honour made no express finding as to whether or not the defendant knew that the officer’s wife was inside at the time. It was accepted that the defendant had been under the influence of amphetamines and alcohol at the time, although he still knew what he was doing and acted with a clear intention.

Offences of 21 March 1998

20. The defendant was released on parole on 29 June 1996, after which he commenced his relationship with IC. On 21 March 1998, shortly prior to the expiration of his parole period, the defendant committed two offences of common assault. An ambulance had been called to the defendant’s residence where two paramedics treated IC for an injury to her leg. A large serrated knife was seen in a pool of blood near the kitchen. When a paramedic removed the knife from the premises the defendant followed him outside and demanded its return. When the paramedic waved down a passing police vehicle, the defendant returned inside and told the second paramedic “I’ll knife you too”. When the second paramedic went to leave, the defendant called him back to treat IC, at which time the defendant head-butted him to his right eyebrow.

Offences of 8-9 August 2001   

21. On 8-9 August 2001 the defendant committed offences of resisting, hindering and assaulting police, and possessing a knife in a public place. Those offences arose from an interaction between the defendant and a taxi driver. Following his arrest he was verbally and physically abusive to officers at the police station.

Offences of 4-5 November 2001

22. On 4 November 2001 police received a report that the defendant had been violent towards his stepson. When police attended the defendant’s home and spoke to him, he behaved aggressively before walking away and returning with a shotgun. The police retreated from the premises and a siege continued from 7.15pm that evening until 8.00am the following day, during which the defendant ignored a number of requests to surrender.

23. The defendant was sentenced for these offences on 6 June 2002. His Honour Judge Patten QC found that the defendant had held the shotgun and waved it in the vicinity of police. However, his Honour was not satisfied beyond reasonable doubt that the defendant had actually pointed the shotgun at police or, as was alleged by the police, that he has said words to the effect “I’ll plug you full of holes”.

Offences of 27 February 2009

24. On 27 February 2009 the defendant committed an offence of reckless driving. The commission of that offence involved a police pursuit, in the course of which the defendant collided with parked cars, street signs and police.

Offences of 4 October 2009

25. On 4 October 2009 the defendant committed two offences of common assault. These offences occurred at the house of friends, in circumstances where the defendant became verbally abusive to two males who were present. It was originally alleged that the defendant had produced a knife and stabbed one of the victims, however those allegations were later withdrawn.

Offences of 29 November 2009

26. On 29 November 2009 the defendant committed offences of assault occasioning actual bodily harm, being armed with the intention of committing an indictable offence, stalking and/or intimidating, and damaging property. The charges arose from the defendant throwing a brick through the front window of the victims’ home. When one of the victims came out of the house and yelled at the defendant, the defendant approached him dressed in a dark hooded jacket and camouflage pants, pointing what the victim believed was a firearm directly at his (i.e. the victim’s) face. The defendant attempted to strike the victim’s head using the butt of the firearm and said words to the effect “That’s what you get for calling the cops on me. If you call them again, I’ll be back in 20 minutes with 50 blokes to cause trouble”.

Sentencing for the 2009 offences

27. The defendant was sentenced in April 2010 for the offences committed in 2009. A pre-sentence report noted that he had recently disclosed having been sexually abused as a child. In an updated report, the defendant said, in reference to the reckless driving offence, that he was “on his way to Griffith to confront the man who sexually abused him when he was a child”. Around this time, IC reported that her relationship with the defendant had been characterised by his mood swings, offending behaviour and several terms of imprisonment.

Offences of August 2012

28. On 26 August 2012 the defendant visited an inmate at the Junee Correctional Centre and was found to have three balloons in his possession, each containing 10 to 15 prohibited tablets. The defendant said that he had the tablets to assist a friend who was unable to get medication in custody for back pain. He was sentenced to 120 hours of community service and fulfilled the obligations of that sentence.

The index offences of 30 March 2016

29. On 30 March 2016 the defendant committed the index offences of:

1. taking and detaining a person with intent to obtain advantage;

2. recklessly causing grievously bodily harm (the index offence);

3. using intimidation to unlawfully influence a person;

4. assault occasioning actual bodily harm;

5. entering a dwelling whilst armed with intent to commit a serious indictable offence; and

6. having custody of a knife in a public place.

30. The background to this offending was as follows.

31. At 11.30am on 30 March 2016 the defendant was seen looking into IC’s vehicle when IC was cleaning a nearby house. A witness saw the defendant looking into IC’s car. The defendant then pursued the witness. The witness reversed his car approximately 50 metres up the street as the defendant ran towards it, yelling obscenities.

32. A nearby resident exited his house after hearing the commotion. The defendant saw him and walked into his driveway. The defendant took a bottle from a nearby recycling bin and threatened the resident to “go get his (i.e. the defendant’s) missus” from the house across the street. The resident complied and commenced walking towards the house where IC was cleaning. The defendant pressed the bottle into the back of the resident’s neck and told him that he had a firearm and would shoot him if he did not comply with his demands.

33. IC heard the commotion outside. She saw the resident and the defendant approaching. She came out of the front door, leaving the door open, to ask the defendant what he was doing. The defendant pushed her out of the way and entered the house.

34. On entering, the defendant confronted the occupant of the house and abused him before striking him to the head with the bottle. The occupant fell to the floor. The defendant then stood over him and struck him with his fists. The occupier then got up and ran out the front door. The defendant pursued him, making threats as he did so. The occupier flagged down, and entered, a passing car, urging the driver to speed away as he believed that he has seen the defendant pull a firearm-shaped object from his pocket. As a consequence of the incident, the occupier suffered a number of facial fractures for which he was treated at hospital. IC suffered scratches, bruises and soreness. The defendant was later located and arrested. He was found in possession of a 15cm bladed knife secreted in the front of his pants.

35. The defendant ultimately pleaded guilty to all offences. On 14 November 2016 he reported to Community Corrections that he had had no visits from any close friend or relative since being taken into custody, but hoped to resume his relationship with IC when he was released. He reported using cannabis resin oil for pain relief and said he had been diagnosed with bone marrow cancer in 2009.

36. IC confirmed that she had been in a de facto relationship with the defendant for the previous 19 years. She said that whilst there had been initial violence in the relationship it had been replaced by verbal abuse after she had “fought back”. She said that she considered her relationship with the defendant was now at an end, and reported that in the week preceding the index offending the defendant’s behaviour had deteriorated. She later discovered that he had been using methamphetamine, although she said that when not using drugs the defendant had managed to hold down a stable employment. She had no knowledge of any cancer diagnosis.

37. The defendant was sentenced by her Honour Judge Baly SC on 30 November 2016. Her Honour accepted a submission that the facts “painted a picture of a confused and irrationally thinking drug affected individual”. She was unable to reach any firm conclusion as to the defendant’s prospects of rehabilitation in light of his criminal history, his unresolved drug and alcohol issues, and the lack of remorse or insight for his offending.

The defendant’s release on parole in January 2018

38. On 29 January 2018, the defendant was released on parole, after which the following occurred:

1. On 30 January 2018, (i.e. the day following his release), said that he did not accept responsibility for the index offences, and sought to attribute blame to another person for pointing a firearm at him;

2. on 6 February 2018 the defendant was reported to be combative and non-compliant. He was directed to stop using cannabis, which he refused. He was also directed to attend a general practitioner to seek alternative treatment options, which he also refused;

3. on 13 February 2018 the defendant attended a general practitioner for the purposes of undergoing a mental health assessment. When the index offence was raised, he gave an account of events which was at odds with the facts;

4. on 1 March 2018 electronic monitoring of the defendant commenced, part of which was the implementation of an exclusion zone within a radius of 1km from IC’s property;

5. on 6 April 2018 the defendant stated that he believed that if he had not committed the index offences the victims “would have killed his wife”. It was noted that the defendant appeared to display irrational thinking and was difficult to engage;

6. on 24 April 2018, in response to a discussion about engaging in rehabilitation programs, it was noted that the defendant “flat out refused to complete any programs” and that he “acknowledged that he might go to gaol if he refused to participate in programs (but) claimed he would rather do that”; and

7. on 1 May 2018 the defendant tested positive for methamphetamines and cannabis. When questioned about the index offences, he again gave an account which was at odds with the facts.

39. The defendant’s parole was revoked on 17 May 2018. He was returned to custody consequent upon a breach report which had been completed on 2 May 2018 which noted (inter alia) that on 6 February 2018 he had been directed to see a general practitioner and had not done so. The report also noted that the defendant had been instructed on two other occasions to “engage” regarding his mental health and offending behaviour, but had “blatantly refused” to do so. It was further noted that the defendant had been advised that he was required to participate in EQUIPS programs facilitated by Community Corrections, but had refused.

40. In recommending that his parole be revoked, the Community Corrections Officer, Candice Mountney, stated:

Mr Turner’s attitude towards his offending, the victims and supervision requirements is of serious concern. He is a tier 3/medium-high risk offender who continues to justify his violent offending and place blame on the victims. Given his validation of his behaviour, effective offence related discussions are not able to be conducted and, therefore, strategies to reduce his risk of re-offending are not able to be implemented during interviews. Further to this, he has blatantly refused to engage in interventions related to his offending behaviour, apart from participation in a men’s behaviour change program and, therefore, the risk of him committing further violent offences against members of the community is not able to be mitigated.

41. In supporting that recommendation, the Unit Leader at Albury Community Corrections, Aaron Lutter-Wood said:

Mr Turner has displayed a negative attitude to both his supervision and addressing his offending behaviour. He consistently plays down the seriousness of his offences and shows no remorse towards his victims. His refusal to engage in any offence related interventions coupled with his violent history and current risk of reoffending presents a serious risk to community safety.

The defendant’s release on parole in August 2018

42. On 7 August 2018 the defendant was again released on parole. He was directed (inter alia) to comply with electronic monitoring, not to enter the exclusion zone and provide a weekly schedule of movements for approval. The following incidents then occurred:

1. on 8 August 2018 (i.e. the day following his release) the defendant tested positive to cannabis and refused a referral to alcohol and drug counselling, stating that he did not require it;

2. on 9 August 2018 the defendant was visited at his home by Community Corrections Officers and was questioned about deviating from his schedule the previous day. He stated that he was sick of parole, and that those concerned with managing his release could “go fuck themselves”;

3. on 10 August 2018 the defendant was warned for non-compliance with his parole conditions;

4. on 28 August 2018 the defendant tested negative to a drug test;

5. on 4 September 2018, the defendant denied the index offending and stated that it would not happen again because if similar situation arose he would “call someone who knows someone” and have them handle it;

6. on 6 September 2018 Community Corrections Officers made telephone contact with the defendant. He was at a local showground. When he was directed to return to his residence, the defendant refused, stating “I don’t give a fuck what happens”;

7. on 7 September 2018, Community Corrections Officers visited the defendant at his home. They directed him to contact the Community Mental Health Access line that day. He refused, stating that he would return to custody. He then shut the door in the officers’ face;

8. on 14 September 2018 electronic monitoring established that the defendant had left his residence on two unscheduled occasions. Police were advised that a member of the community had seen a man walking along train tracks. That the person was later confirmed to be the defendant;

9. on 15 September 2018 the defendant was again detected moving outside of his schedule. When contacted, he maintained that he had done so because there were people who wanted to kill him;

10. on 2 October 2018 the defendant was contacted about an unscheduled departure from his residence, in response to which he said “rules are meant to be broken”;

11. on 5 October 2018 the defendant was detected near railway tracks. When contacted by telephone, he said that he had heard noises and believed that local youths were breaking into a nearby caravan park;

12. on 8 October 2018 the defendant tested positive for cannabis. He stated that he would never stop using cannabis, although he denied the use of methamphetamine;

13. on 10 October 2018 the defendant admitted to using cannabis but denied using any other illicit substance. He refused to attend a counselling session and said that he was “sick of everything and would rather return to custody”.

43. On 18 October 2018 the defendant’s parole was once again revoked due to his non-compliance, and he was returned to custody. He remains in custody at the present time and is due to be released upon the expiration of his sentence on 30 March 2019.

The risk assessment reports

44. A risk assessment report dated 20 December 2018 was prepared by Gillian Tulloh, a Senior Psychologist at the South Coast Correctional Centre. Ms Tulloh’s executive summary included the following observations:

Mr Turner is estimated to be a high risk of further violent offending. This assessment is anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs. There are no programs available in the community that would adequately address all of Mr Turner’s identified treatment needs/risk factors at an intensity that is commensurate with his risk level.

45. Ms Tulloh expressed the view that it was likely that the defendant was suffering from a substance induced psychosis at the time of the index offending. She went on to say that an alternative diagnosis was that he was suffering from a personality disorder, and that he met many of the diagnostic criteria for anti-social personality disorder.

46. Ms Tulloh identified a number of factors which, in her opinion, were linked to a risk of the defendant committing future acts of violence. Those factors included the defendant’s:

1. extensive history of engaging in violence;

2. strong and entrenched anti-social beliefs, particularly around police;

3. tendency to recount personal histories, and accounts of his offending, which were entirely inconsistent with the objective facts and the available corroborating evidence;

4. expression of highly distorted views about the causes and effects of the index offending;

5. refusal to accept responsibility for the index offending;

6. indications of behavioural impulsivity and poor emotional control contained in his criminal history, including assaults, offensive language, offensive behaviour, police pursuits and driving offences;

7. extensive history of offences involving the use of weapons;

8. reported previous diagnoses of PTSD, Anxiety and Depression;

9. long history of offending whilst under the influence of illicit substances;

10. history of offences against his partner, including offences of violence;

11. variable engagement with community supervision in the past; and

12. resistance to interventions.

47. Ms Tulloh also made specific reference to a number of other factors which bear upon my determination. Under the heading “Cognitive Distortions” she said:

In the interviews for this assessment, Mr Turner expressed some highly distorted views around the causes and effects of the index offence for which he takes no responsibility…Mr Turner’s (sic) displays a long history of paranoid thinking patterns. This may be the result of a form of personality disorder, which would have been exacerbated by methamphetamine use at the time of the offence. Alternatively, Mr Turner’s report of his persecution by others may be reflective of an “over-valued idea” or simply an unsophisticated person with an inability to admit fault attempting to justify his behaviour.

48. Under the heading “Emotional Control/Impulsivity” Ms Tulloh stated:

There are a number of behavioural indicators of impulsivity and pure emotional control in Mr Turner’s criminal history including assault, offensive language/behaviour, police car chase, driving offences and property destruction. Alcohol and other drugs tend to worsen a propensity toward both impulsivity and poor emotional control and many of his prior offences have occurred while he has been under the influence of substances.

49. Under the heading “Mental Health”, and having noted that the defendant had a history of offences involving the use of weapons, Ms Tulloh stated:

As previously discussed, Mr Turner reports previous diagnoses of PTSD, Anxiety and Depression. There is also some evidence to suggest that Mr Turner may have been suffering from a substance induced psychotic disorder at the time of the offences. During his most recent period in the community, it was reported by his supervising officer that Mr Turner has begun presenting as delusional and paranoid which is the state that he was in when he first committed his offences…Mr Turner has not undergone any psychiatric assessment since 1995 and if he is released into the community should undergo a thorough psychiatric assessment.

50. Ms Tulloh also noted that the defendant had a long history of offending while under the influence of substances. In particular she observed:

Mr Turner has been quite open and adamant that he will continue to use cannabis regardless of any sanctions placed upon him. If he continues to use amphetamines/methamphetamines it is likely to exacerbate his underlying paranoid thinking patterns and therefore increase the likelihood of Mr Turner responding violently to any perceived threat.

51. Finally, in terms of the defendant’s lack of insight, and in the context of the defendant’s history of violence towards his partner, Mr Tulloh concluded:

Information in a number of reports from community corrections indicates that Mr Turner displays a pattern of increasing substance use that induces paranoid thinking patterns and/or triggers mental health issues. These factors then reduce his limited emotional and behavioural controls. When an event occurs that he perceives as provocative he is likely to respond with violence.

52. On 9 January 2019 Marc Corcoran, a Senior Community Corrections Officer, prepared a risk management report. He noted that an assessment undertaken on 3 August 2018 placed the defendant within the medium to high risk level for general re-offending. Mr Corcoran also noted that the violence risk scale undertaken by Ms Tulloh assessed the defendant as falling into the high risk category for violent offending. His report went on to detail those conditions which would be imposed as part of a risk management plan in the event that the defendant was placed on an interim supervision order.

53. Ms Tulloh prepared a supplementary Risk Assessment Report of 1 March 2019 following the receipt of additional information, including the sentencing remarks of Judge Baly and an Agreed Statement of Facts in relation to the index offending. None of that additional material caused Ms Tulloh to alter her original opinions.

54. Dr Gordon Elliott, Psychiatrist, attempted a psychiatric assessment of the defendant on 15 February 2019. However, the defendant did not agree to undergo that assessment. When Dr Elliott introduced himself, the defendant became (as Dr Elliott described it) “aroused and angry”. The defendant then left the interview room.

55. Notwithstanding those circumstances, Dr Elliott prepared a report dated 18 February 2019, based largely on documentary material provided to him, including the report of Ms Tulloh. Unsurprisingly, bearing in mind the limited opportunity that he had to undertake an assessment of the defendant, Dr Elliott found himself in a position where he could not provide a conclusive opinion regarding the defendant’s mental state. However he noted “with considerable concern” the contents of supporting documentation with which he had been provided. He regarded the description of the defendant’s offending behaviour, or at least some of it, to be “highly suggestive of a paranoid psychotic illness”. He also noted that there was evidence that the defendant became increasingly paranoid when on parole, and that the results of urinalyses were positive for the use of cannabis and amphetamines.

56. Ultimately Dr Elliott said:

I share the Commissioner’s concerns about Mr Turner’s impending release. He is previously noted to have immediately relapsed into substance use on release from custody and he had continued to seek cannabis whilst in gaol. I think it highly probable he will return to substance use on release and thereby further increase his already high risk of violent re-offending. He requires assertive psychiatric assessment and observation.

THE SCHEME OF THE ACT

57. The Act confers a discretion on the Court to make a Continuing Detention Order (CDO) pursuant to s 17(1), or an Extended Supervision Order (ESO) pursuant to s 9(1). Under s 18A the Court may make an Interim Detention Order (IDO) if (inter alia) the matters alleged in the supporting documentation, would, if proved, justify the making of a CDO or an ESO. Before making an IDO, the Court must be satisfied 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; and

2. the defendant is a supervised offender (within the meaning of section 5I); and

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

4. to a high degree of probability, the defendant poses an unacceptable risk of committing another serious offence.

58. In the present case there is no issue that the conditions in (a), (b) and (c) are satisfied. The sole issue for present purposes is whether or not I can be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence. It is the defendant’s position that even if I am so satisfied, any risk can be adequately mitigated by supervision of the defendant rather than by making an IDO.

59. In State of NSW v Holschier(No.2) [2018] NSWSC 1921 Hoeben CJ at CL considered the meaning of the phrase “unacceptable risk” at [23]-[24]:

23. As to the meaning of the phrase “an unacceptable risk”, the case law establishes the following:

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

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

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

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

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

24. The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].

60. Before making any order, I must be satisfied of the unacceptable risk of the commission of other serious offences to a “high degree of probability”. That term has been interpreted as representing a standard of proof which is higher than the civil standard, but lower than the criminal standard. It indicates something beyond more probable than not, but not beyond reasonable doubt: Attorney-General for the State of NSW v Tillman [2007] NSWSC 605 at [27]; Cornwell v Attorney-General for NSW [2007] NSWCA 374 at [21].

61. The application before me is a preliminary application. My task is not to predict the ultimate result of the proceedings. Rather, it is to determine whether, at a prima facie level, the matters alleged, if proved, would justify the making of an order: State of NSW v Holschier [2014] NSWSC 867 at [5].

62. My determination is discretionary. Even if the conditions for the making of an order are satisfied it remains open to me, in the exercise of my discretion, to refuse to do so. My determination is an evaluative one, which is to be undertaken according to the circumstances of the case, and having regard to the objects of the Act: State of NSW v Anderson [2015] NSWSC 1515 at [30]. The primary object of the Act, as stated in s 3(1), is to ensure the safety and protection of the community in relation to high risk offenders.

MANDATORY CONSIDERATIONS

63. The Act sets out a number of mandatory considerations to which I must have regard to the extent that they apply. A number of those considerations are relevant to the present determination.

The defendant’s criminal history, his pattern of offending behaviour and the views of any sentencing Court

64. I have set out the defendant’s criminal history. I accept that he has committed only one prior offence which falls within the definition of a “serious offence”. That said, his record is replete with offences of violence. Some of those offences involved the use of weaponry such as homemade petrol bombs and firearms. That history, in my view, exhibits a disturbing pattern of violent behaviour.

65. The index offending was obviously serious. It resulted in significant injuries being inflicted on the victim. It was inherently violent in nature. It is of considerable concern that there is evidence before me that the defendant has, on more than one occasion, refused to accept responsibility for it, and has sought to attribute the blame to others.

66. It is also of considerable concern that there is evidence indicating that the defendant has regularly used illicit drugs in the past. There is a clear link, on the evidence, between that drug use and his offending. In those circumstances it is significant that the defendant has bluntly refused to attend alcohol and drug counselling.

67. The views of those Judges who have previously sentenced the defendant are instructive. When sentencing the defendant on 19 May 1995, Judge Twigg QC observed:

To throw a bomb of this kind towards a residence in a residential area, not caring about possible occupants or possible damages, is a crime of the most serious nature. Undoubtedly the prisoner deliberately prepared the bomb, returned to the residence of O’Dea, deliberately lit the wick and threw it at the home intending to assault. On the whole of the evidence including the prisoner and that of Dr Jolley (sic), there is no doubt that the prisoner knew what he was doing and intended his actions. The fact that it was done as a reprisal for some perceived misconduct and an exaggerated perception harassment on him by O’Dea, puts this in the category of the most serious.

68. Judge Twigg went on to refer to the defendant’s use of drugs, which had commenced with the use of marijuana and progressed to the use of amphetamines.

69. When sentencing the defendant on 6 June 2002, Judge Patten QC said:

The verdict of the jury necessarily implies that the prisoner held a shotgun and at least waved it in the vicinity of police officers. I am not satisfied beyond reasonable doubt that he actually pointed it at a police officer, nor that he said ‘I’ll plug you full of holes”, although the think the probability is that he did both of those things.

70. When sentencing the defendant on 30 November 2016, and having concluded that the actions of the defendant were the “spontaneous actions of accused and irrational individual affected by drugs”, Judge Baly SC said:

It is reported that he has been diagnosed bone marrow cancer and suffers chronic pain and the offender, as I have already said, put forward his reason for having cannabis in his possession as one to relieve pain. But, there is no medical evidence before me about the offender’s condition. I do not know how it affects him, and I do not know if it will make his sentence of imprisonment more onerous for him. I can make no such findings…Mr Turner has experienced depression and anxiety, apparently caused by unresolved drug and alcohol problems.

…

I do think he had some prospects of rehabilitation… but I am guarded. I cannot find that he is unlikely to re-offend. In fact, the pre-sentence report indicates that he is assessed as having a medium to high likelihood of re-offending.

Qualified expert assessment and the results of any statistical or other assessment

71. I have referred at some length to the opinions of Ms Tulloh and Dr Elliott. Quite apart from the fact they express concerns about the prospect of the defendant’s release in terms of a risk of further violent offending, they raise the question of whether the defendant currently suffers from an undiagnosed (and thus untreated) schizophrenic condition.

72. I have also made reference to the report of Dr Jolly. It is noteworthy that Dr Jolly did not, at the time of his examination of the defendant, diagnose any psychiatric illness. That assessment was, however, made some 24 years ago. A great deal has occurred during the intervening period.

Any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community

73. I have already made reference to the report of Ms Tulloh who assessed the defendant as falling in the medium to high risk range of general re-offending. The defendant returned high scores on the Violence Risk Appraisal Guide and was assessed to fall in the high risk range using the Violent Risk Scale.

74. Clearly, in the event that an ESO were made, it would be necessary for the defendant to be closely monitored. However, his past history indicates that even when close monitoring has been implemented for the purposes of his parole, he has demonstrated a reluctance to comply with various conditions to which he has been subject.

Treatment or rehabilitation programs that the defendant has had an opportunity to participate in and his willingness and level of participation in such program(s).

75. The defendant has not completed any such programs since about 2004.

Options available if the defendant is kept in custody or is in the community that might reduce the likelihood of the defendant re-offending over time.

76. There are provisions under the Mental Health Act 2007 (NSW) for the treatment of patients in the community. However, at this stage the defendant has not undergone a psychiatric evaluation and although there is a suggestion of his having a psychotic illness, any such illness remains undiagnosed.

The likelihood that the defendant will comply with an Extended Supervision Order and his level of compliance whilst subject to release on parole.

77. It is common ground between the parties that the defendant has not come to any adverse attention whilst in custody. There are, however, instances in the past where he has been resistant to, and non-compliant with, various directions given to him.

Any other information that is available as to the likelihood that the defendant will commit a further serious offence.

78. There are, as I have outlined, comments which have been made by the defendant which suggest that he may engage in some retaliatory action in the event he is given the opportunity to do so.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

79. Counsel for the plaintiff submitted that I would be satisfied that the making of an IDO at this time was appropriate. In support of that submission counsel pointed, in particular, to:

1. the defendant’s apparent (but as yet, undiagnosed) psychotic illness;

2. the fact that the defendant is not presently taking any medication;

3. the defendant’s lack of insight into his condition;

4. the offender’s risk of relapse into substance misuse, a circumstance which, it was submitted, would further compound his already high risk of future violent offending;

5. the defendant’s previous lack of compliance with parole supervision; and

6. the defendant’s statements attributing the blame for the index offending to other people.

Submissions of the defendant

80. Counsel for the defendant submitted that whilst it may be open to conclude that the defendant posed a risk of committing a further serious offence, it was nevertheless important to bear in mind the existence of factors which, it was submitted, would operate to lessen the risk. In this regard, counsel pointed to:

1. the defendant’s good behaviour whilst in custody;

2. his previous compliance with parole, at least for some period;

3. the significant gap in offending where he was previously released into the community; and

4. his past history of employment.

81. Counsel submitted that if I were to find that there was an unacceptable risk of the defendant committing another serious offence, any such risk could be adequately addressed and mitigated by supervision. It was submitted, in particular, that the pattern and nature of the defendant’s offending did not warrant the making of an IDO because:

1. the index offences were the only serious offences committed by the defendant;

2. he had previously successfully completed parole orders in the community, along with a community service order;

3. his most recent breaches of parole did not involve further offending;

4. he has had significant periods of time living in the community, in particular between August 2011 and March 2016;

5. any risk posed to the community could be mitigated by conditions; and

6. an apprehended violence order previously put in place for the protection of IC was not breached by the defendant during his last period on parole.

CONSIDERATION

82. I am conscious of the fact that, as counsel for the defendant correctly submitted, the index offending represents the only instance of the defendant having engaged in the commission of a serious offence. However in my view, in light of the whole of the evidence to which I have referred, that is of limited significance. I have already noted that Ms Tulloh assessed the defendant as being at a high risk of further violent offending. Importantly, Ms Tulloh described that assessment as being “anchored by static unchangeable factors and backed up by a number of criminogenic needs”. Ms Tulloh articulated those factors, and those needs, in her report. There is nothing in the material which causes me to have any misgivings about accepting the opinions she has expressed. Consistent with those opinions, Mr Corcoran reported that the defendant was in the medium to high risk range for general offending, and the high risk category for violent offending.

83. Those opinions are generally consistent with those of Dr Elliott. Although Dr Elliott did not, for the reasons I have explained, have the opportunity to conduct a formal psychiatric assessment of the defendant, he did express, in unequivocal terms, concern at the prospect of the defendant’s release. He expressed that concern on the basis of the documentary material with which he had been provided. Although the weight of his opinion might be lessened by the absence of a formal assessment, that does not mean that his opinion is to be given no weight at all. I am, of course, mindful of the fact that when Dr Jolly examined the defendant he diagnosed no psychiatric illness, and expressed the view that there was no evidence of florid psychosis. However, that assessment was conducted in 1995, some 24 years ago. As the defendant’s history demonstrates, a great deal has occurred since then.

84. For these reasons, and having regard to the opinions of Ms Tulloh, Mr Corcoran and Dr Elliott, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence. In all of the circumstances, I am further satisfied that such risk can only be mitigated by an IDO. I have reached that conclusion for a number of reasons.

85. There is evidence before me which, although largely anecdotal and not in the nature of an expert opinion, is strongly suggestive of a conclusion that the offender is suffering from some form of psychotic illness. There is also evidence which suggests a clear connection between the defendant’s mental state and his substance abuse, in circumstances where that substance abuse dates back to his adolescence.

86. The evidence before me also strongly suggests that the defendant has failed to come to terms with the index offending. In particular, he has sought, on occasions, to ascribe responsibility for that offending to persons other than himself. That, at least at a prima facie level, is consistent with his having delusional beliefs, in keeping with some form of psychotic or schizophrenic illness.

87. I am fortified in these views by the expressions of opinion of Ms Tulloh and Dr Elliott. Their assessments are soundly based, and their concerns are, in my view, well justified. There is, in my view, real risk that if the defendant were released into the community in his current untreated medical state, he would lapse into substance abuse and serious violent offending. Moreover, given the evidence of Ms Carden, there are no satisfactory accommodation arrangements which can be put in place at the present time.

88. I am also mindful of the repeated instances in which the defendant has, in the past, bluntly refused to comply with conditions of parole which have been placed upon him. I acknowledge that he has not offended whilst on parole, and that his returns to custody have come about due to other reasons. However it remains the case that his performance and attitude have, to say the least, been less than satisfactory. Whilst such matters are not conclusive, they are necessarily relevant to my assessment. The defendant’s failures to comply with directions given to him, and his general attitude, leaves me with considerable disquiet as to whether or not the defendant could be appropriately managed in the community.

89. ORDERS

90. For these reasons I make the following orders:

91. Pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) I make an interim order for the detention of the defendant for a period of 28 days commencing on 31 March 2019.

92. The proceedings are listed before me for further directions at 2.00 pm on 29 March 2019.

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Endnotes

Decision last updated: 21 March 2019