State of New South Wales v Donovan

[2015] NSWSC 877

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Donovan [2015] NSWSC 877
Hearing dates:	18 June 2015
Date of orders:	03 July 2015
Decision date:	03 July 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	1. Pursuant to section 18B of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an interim detention order from 25 July 2015 for a period of 28 days. 2. Pursuant to section 20(1) of the Act the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in Order 1 above.
Catchwords:	CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – whether interim detention order should be made – interim detention order made
Legislation Cited:	Crimes Act 1900 (NSW). Crimes (High Risk Offenders) Act 2006
Cases Cited:	State of New South Wales v Cornwall [2015] NSWSC 742 State of New South Wales v Davie [2015] NSWSC 413 State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Brian James Donovan (Defendant)
Representation:	Counsel: Ms N Sharp (Plaintiff Mr M Johnston (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2015/153125
Publication restriction:	None

Judgment

1. The State of New South Wales seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in relation to Mr Brian James Donovan. In August 2012, Mr Donovan was sentenced to a 3 year, 9 month sentence which is due to expire on 25 July 2015, he having pleaded guilty to recklessly causing grievous bodily harm to his former partner in October 2011, while he was heavily intoxicated. Mr Donovan threatened to kill her and kicked her repeatedly in the jaw, which was fractured, punched her multiple times in the eye and stabbed her twice with scissors. The offence was committed after he was released on parole, under a program of home monitoring.

2. Mr Donovan was not released when he became eligible for parole for this offence. He has continued to abuse drugs and to commit acts of violence while in custody. This application was brought, as required by s 13C, during the last 6 months of Mr Donovan’s total sentence. It was supported by evidence which met the requirements of s 6 and s 14 of the Act and was heard within the 28 days as contemplated in s 15(3) of the Act.

3. Mr Donovan formally opposed the application, submitting that he should be released on 25 July, when he has served his sentence. That the State’s application met the statutory threshold was, however, conceded, as were other relevant matters.

Consent order made at the hearing

4. At the preliminary hearing, by consent, the first order sought by the State was made under s 15(4) of the Act, appointing two qualified psychiatrists to conduct separate psychiatric examinations of Mr Donovan, who was ordered to attend those examinations. Those reports are to be provided to the Court by 16 July.

Other orders sought

5. The other orders sought were:

“2. An order pursuant to section 18B of the Act that the defendant be subject to an interim detention order from 25 July 2015 for a period of 28 days.

3. An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.

4. An order pursuant to section 17(1)(b) of the Act that the defendant be the subject of a continuing detention order for a period of 2 years from the date of the order.

5. An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified in paragraph 4 above.

6. In the alternative to paragraphs 2 and 3 above, an order pursuant to section 10B of the Act that the defendant be subject to an interim supervision order from 25 July 2015 for a period of 28 days, and pursuant to section 11 of the Act direct that for the period of the interim supervision order, the defendant comply with the conditions set out in the Schedule to this Summons.

7. In the alternative to paragraphs 4 and 5 above, an order pursuant to section 17(1)(a) of the Act, that the defendant be subject to an extended supervision order for a period of 5 years from the date of the order and pursuant to section 11 of the Act direct that the defendant comply with the conditions set out in the Schedule to this Summons.

8.   An order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services New South Wales, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s).”

6. In issue at the preliminary hearing was whether an interim detention order or the supervision order which Mr Donovan proposed, would be made. He argued that he should be released under a supervision order on 25 July, when his sentence comes to an end, on the 53 conditions specified in a schedule to the initiating summons, to which he consented.

7. What was in issue has to be resolved on the evidence in circumstances where the Act permits the Court to make extended supervision or continuing detention orders for specified offenders. Mr Donovan accepted that he was a “high risk offender”; as defined in s 5E(2), namely, a violent offender about whom the Court is satisfied to a high degree of probability “poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision”. That concession was properly founded on the evidence led by the State, which revealed Mr Donovan’s long and extensive history of violent offending. He also has a history of sexual offending.

8. A “violent offender” is defined in s 4 to be a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a “serious violence offence”. That term is defined in s 5A(1) as a serious indictable offence constituted by a person:

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

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

9. There was no issue that Mr Donovan fell within these definitions. As was submitted on his behalf, despite his extensive record, the index offence was the first he had committed which fell within this definition. In the past he has engaged in other violent conduct, but has not been charged or convicted of having caused other of his victims grievous bodily harm. Nevertheless, Mr Donovan is presently in custody serving a sentence which brings him within s 13C(1) as a detained violent offender.

10. It was also conceded that the application met the statutory threshold for either the detention order sought by the State, or the supervision order pressed by Mr Donovan; and that the matters alleged at the preliminary hearing would, if proved, justify the making of a high risk violent offender order. While it was submitted for Mr Donovan to be relevant that the definition of “serious violence offence” did not apply to the majority of his offending, it was conceded that the evidence was capable of satisfying the Court, to a high degree of probability that Mr Donovan posed an unacceptable risk of committing a serious violent offence if not kept under supervision, as s 5E permitted.

11. Mr Donovan’s case was that he could be provided adequate supervision by an interim supervision order on the terms proposed, given accommodation available to him on release at the COSP centre. Those conditions, it must be accepted are stringent, and more stringent than conditions which have applied to him when he has committed offences in the past after being released from custody on bail, bond or parole. That supervision would not, however, be as stringent as that under which he is kept in custody.

12. The State’s application rested on numerous documents including doctors’ reports, presentence reports, drug and alcohol reports, probation and parole release reports, sentencing remarks, Corrective Services’ reports, psychologist’s reports, police facts sheets, victims’ statements, Police statements, transcript of proceedings, Court orders, including apprehended violence orders, reports as to breach of bonds, agreed facts on sentencing, risk management reports, pre-release reports, discharge summaries and program attendance reports .

13. Determination of an application for an extended supervision order requires the Court to consider the matters specified in s 9(3). It provides:

“(a)   the safety of the community,

(b)   the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)   the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)   the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence,

(d1)   any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e)   any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(f)   the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g)   the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h)   the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1)   the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)   any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).”

14. Determination of an application for an extended detention order requires the Court to consider the similar matters specified in s 17(4), in addition to other matters there specified, which do not arise here. It is the evidence of Mr Donovan’s extremely poor response to supervision in the past and his repeated, recklessly violent behaviour when intoxicated, which was the basis on which the State pressed for an extended detention order.

15. To support Mr Donovan’s case, attention was drawn to the consequences of any breach of conditions imposed upon him by the order which he sought, which would involve an offence likely to lead to a custodial sentence. Given the short period of interim of release on supervision which the order he proposed would result in, having regard to the timing of the receipt of the psychiatrists’ reports which have been ordered and his due date for release in July, it was argued that it would be concluded that a detention order was unnecessary in his circumstances.

An interim detention order must be made

16. For the reasons which follow, I have concluded that the interim detention order sought by the State must be made.

17. On the evidence, there can be no doubt as to the serious risk which Mr Donovan poses to the safety of the community, which he has conceded exists. He is a 45 year old Aboriginal man with a regrettably long history of drug and alcohol abuse, violent offending, including use of weapons such as scissors and screwdrivers. He also has a long history of failed attempts at treatment, including by participation in treatment programs such as the “Getting Smart” program and the Intensive Drug and Alcohol Treatment Program. Sadly, he appears to be institutionalised, having spent the majority of his life in custody since age 20, as the result of his repeated offending. Seemingly, he has had neither the means nor desire to alter or address his offending behaviour or its causes, to this point.

18. Mr Donovan comes from a loving family background and is the father of two children, but has a long history of unemployment since he finished schooling in year 10. He also has a long history of alcohol abuse since age 12, cannabis abuse since age 13, unsuccessful rehabilitation programs while in remand as early as 1987 and 1988 and ongoing abuse of various drugs, including cocaine, heroin and in custody, drugs such as cannabis and buprenorphine. In 2009, he refused to participate in a residential rehabilitation program, as a condition of a suspended sentence. In 2013/2014, he commenced the IDATP program while in custody, but was discharged from that program, for ongoing drug use. His record in custody includes relatively recent failed and refused urine testing.

19. Mr Donovan’s violent record of offending now spans some 27 years. His criminal record commenced at age 14. His juvenile record includes offences of stealing and offensive behaviour, escalating to acts of violence by age 17, when he was convicted of 2 counts of aggravated assault of a sexual nature and 2 charges of assault. He was first imprisoned in 1988 and has since been convicted of numerous assault offences, three offences of assault occasioning actual bodily harm and one of recklessly causing grievous bodily harm.

20. His record also includes stealing, offensive behaviour, malicious damage and destruction of property. His convictions include a 1988 conviction for assaulting a taxi driver; a 1989 conviction for assaulting a hotelier; domestic violence offences in 1992, 2001, 2005 involving a number of partners and his mother; a rape conviction in 1995; a 1997 conviction for attempted escape from custody; a 2009 breach of AVO conviction; a 2010 assault occasioning actual bodily harm conviction against his then partner, as well as the 2012 conviction for the index offence.

21. Mr Donovan also has a history since 1988 of failing to comply with supervision repeatedly imposed upon him, when he has been released from custody, including repeated breaches of good behaviour bonds and failure to comply with conditions of bail and parole. There have been repeated failures to report, to abstain from drugs and alcohol and to refrain from associating with ex-partners, as well as the commission of further offences. There were two episodes of sexual misconduct in Queensland towards female officers while in custody. In 2009, he refused to enter a rehabilitation facility he had been ordered to attend. In 2011, when he committed the index offence, he was subject to monitoring, supervision and abstinence from drugs and alcohol. In recent custody, he has refused to work and has incurred several institutional misconduct charges. He has been sanctioned for assault and intimidation. In 2015, in custody, he sought special protection because he claimed he owed other inmates drug debts.

22. Mr Ardasinski is a forensic psychologist, who conducted four lengthy interviews with Mr Donovan. His report explains the various risk assessments he has undertaken, the static and dynamic variables which they seek to measure and the actuarial risk assessment tools which were used, such as the Violence Risk Scale, which measures the risk of future violent offending and the Static-99 scale, which measures the risk of future sexual offences. Mr Donovan was assessed as falling within the high risk range of being convicted of further violent offences and the high risk category of sexually reoffending.

23. Mr Ardasinski also identified dynamic risk factors relating to Mr Donovan. They included his poor work ethic, drug use and absence of any post release goals of seeking employment; his history of drug and alcohol abuse, even while in custody; their strong link with violence; and his failure at the IDATP residential drug program. He considered that they evidenced a lack of motivation to change on Mr Donovan’s part. His history of repeated domestic violence and victim blaming, his continuing violent behaviour, even in custody, as well as poor supervision compliance, in Mr Ardasinski’s opinion, suggested that Mr Donovan would struggle with abstinence and supervision, if released.

24. Mr Ardasinski also identified other relevant factors to include Mr Donovan’s poor insight and motivation to change his offending behaviour; his inability to have his classification in custody reduced; his repeated offending in custody, when admitted to less secure containment; as well as his lack of community support, anti-social personal aggression, poor emotional control and weapon use.

25. Mr Donovan has no history of major mental ill health. Available programs he had not attempted, to address his problems, were identified. Mr Ardasinski considered it critical that Mr Donovan be assisted to find ways to occupy his time, such as gainful employment. He could not, however, identify any community based programs which were sufficiently intense to meet all of Mr Donovan’s needs.

26. Also to be considered is that in a 2006 report, Ms Drayden-Thompson had also assessed Mr Donovan to fall into the high risk of general reoffending and moderate to high risk of violent or sexual recidivism. After this assessment he breached a number of good behaviour bonds and committed the index offence. There had been a similar high risk assessment in 2001 prepared for the NSW Parole Board by Ms Young and another prepared in Queensland in 2000 by Ms Vasey, at the end of Mr Donovan’s treatment in the sex offender treatment program there.

27. All of these reports support the view that Mr Donovan poses very considerable risks of violent reoffending if released, even on the conditions to which he consents. Nothing in this evidence provides a basis for confidence that, if released to supervision, even on the stringent conditions proposed, Mr Donovan will adopt any different attitude to reoffending than he has in the past. Further, given his record in custody, there is simply no basis for any confidence as to change on his part, as to adherence to such conditions.

28. Ms Jeffress’ March 2015 risk management report outlined a risk management plan directed to alcohol and drug use and Mr Donovan’s propensity for violence and identified risks and limitations. Stringent requirements as to reporting, abstinence, urine analysis, monitoring communications, directions to participate in counselling programs, electric monitoring, education in a domestic violence program and ongoing review were there outlined. That Mr Donovan has no family support in Sydney, is also relevant consideration, but given his family’s involvement in his past offending, that has both positive and negative impacts.

29. The real difficulty in undertaking the statutory balancing exercise in this case, as Davies J discussed in State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 at [90], is Mr Donovan’s past approach to supervision when released from custody and his approach in custody to abstinence, participation in counselling and offending. What has to be weighed is, on the one hand, the risk of Mr Donovan committing further offences, in this case of serious violence offences if released and on the other, the serious consequences for Mr Donovan, if detained beyond the period of his sentence. That is a particular problem here, given his recent history of drug abuse and offending even while in custody.

16. The evidence and the problems that it raises, which I have discussed, has led me to the conclusion that in Mr Donovan's case, given his past extremely poor compliance with supervision while on parole, bond, bail and even custody, with repeated drug and alcohol abuse and offending; the serious nature of the index offence, one which was fortunate not to have resulted in even more serious injury than it did; and Mr Donovan’s history of resistance to most attempts at intervention, must result in the conclusion that an interim detention order is required in this case.

17. I am satisfied that the Court’s discretion to decline to make the extended detention order sought, in favour of making a continuing supervision order, cannot be exercised because, on the evidence, adequate supervision and treatment are not available and would not be effective in Mr Donovan’s case, even on the stringent basis he proposed.

18. I have concluded that the balance must thus tilt towards continued detention in Mr Donovan’s case, because what is proposed by way of supervision requires Mr Donovan’s co-operation. While Mr Donovan relied on the absence of effective supervision in the past, when he was released, that overlooks Mr Donovan’s approach to the terms on which he was released and his attitude to violent offending. Compliance with supervision and refraining from offending depended on him. His cooperation has not been forthcoming in the past. There can be no confidence that such cooperation will be forthcoming if he is now released, even on the stringent conditions he consents to.

19. Even Mr Donovan’s current custody has not stopped him from pursuing further drug abuse and violence. Despite participating in some short drug and alcohol programs in custody, he continues to use drugs. He was discharged from the IDATP program in August 2014 because of his ongoing drug use, deceptive behaviour and lack of motivation to change. He declined to undertake the residential sex offender CUBIT treatment program and has not undertaken the Violent Offenders Therapeutic Program. He clearly has significant outstanding treatment needs. There is no evidence of any program available to him in the community which would meet those needs. Nor does the evidence establish any real preparedness on his part to participate, even if one were available.

20. Mr Donovan’s violent offending has not only been directed to women known to him, but also at strangers, men and police officers. The alcohol and drugs which he craves are triggers for his offending. He is unwilling to address those problems. The evidence establishes that Mr Donovan appears to have no real insight into his offending and cannot seem to take responsibility for his conduct, which has led to increasing violence over time. Most recently, it has involved a weapon and grave injury to a former partner.

21. The sentencing judge, Black DCJ, described this to have resulted from a serious and unprovoked attack. His Honour did not accept that change would occur without Mr Donovan’s co-operation. That has not been forthcoming while he has been in custody since that sentence was imposed upon him. The evidence reveals no basis upon which it could be concluded that it will be forthcoming if Mr Donovan is now released, notwithstanding his stated preparedness to accept the conditions proposed.

22. In undertaking this balancing exercise it was also relevant to consider that despite having interjected during the hearing, indicating that he wanted to say something and I having taken an adjournment, so that Mr Donovan could give his counsel instructions, he did not give evidence. That is relevant in his case because accommodation at the COSP centre where he wishes to reside on release, depends on Mr Donovan entering into and abiding by an agreement that he will adhere to the conditions of his release. Given his record of past breaches of bail and parole, that he would abide by any such agreement if made, is open to obvious, serious question.

23. Had Mr Donovan given evidence in support of the submissions advanced on his behalf, he could then have been cross-examined. He did not subject himself to such an examination, which must be taken into account, given what the parties were each advancing on this application.

24. The nub of the case advanced for Mr Donovan was that his violent offending has in the past occurred in the context of serious alcohol abuse and that the supervision to which he would be subjected, if released on the proposed conditions, would minimise the risk of such abuse occurring.

25. The difficulty with that submission was Mr Donovan’s record of ongoing drug abuse, even while in custody. There, he ought not to have had access to any drugs. Not only when attending his father’s funeral was he able, however, to obtain cannabis, he also continued abusing a range of other drugs while in custody. In those circumstances, that he would not either seek or obtain access to alcohol and drugs if released to reside at COSP, cannot be accepted. There is clearly a significant risk that he would. Supervision on such release would be less stringent than while in custody and would increase his opportunity to access both. On Mr Donovan’s record, such access poses obvious risks to the safety not only of those who have to deal with him, but of others in the community. That he has a conviction for an attempted escape from custody, also has to be borne in mind.

26. In the result, regrettably, given the ongoing high risk of further violent offending which I consider the evidence establishes that Mr Donovan poses and the unlikelihood that he will abide by any conditions imposed upon him if an extended supervision order is made, it has to be concluded that such conditions, onerous as they are, will not be adequate. On the evidence as it stands, if so released, he will continue to pose an unacceptable risk of committing a further serous violence offence.

27. For Mr Donovan, it was submitted that this meant that the Court had to be satisfied that the proposed conditions would not fulfil the primary purpose of the Act, namely, of ensuring the safety and protection of the community (see State of New South Wales v Davie [2015] NSWSC 413 at [27] and State of New South Wales v Cornwall [2015] NSWSC 742 at [10]). As I have explained, any regime of extended supervision, even on the onerous conditions proposed, requires Mr Donovan’s cooperation. That it is likely to be forthcoming cannot be accepted and so, it must be concluded, his risk of committing other serious violence offences remains unacceptable, even if released on those conditions. In the result, those conditions cannot, in this case, be accepted as fulfilling the primary purpose identified.

Orders

42. For the reasons given, I order:

1 Pursuant to section 18B of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an interim detention order from 25 July 2015 for a period of 28 days.

2. Pursuant to section 20(1) of the Act the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in Order 1 above.

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Decision last updated: 03 July 2015