State of New South Wales v Donovan (Preliminary)

[2023] NSWSC 600

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Donovan (Preliminary) [2023] NSWSC 600

Hearing dates:

31 May 2023

Date of orders:

06 June 2023

Decision date:

06 June 2023

Jurisdiction:

Common Law

Before:

Sweeney J

Decision:

(1) The Plaintiff’s summons filed on 9 May 2023 is dismissed.

(2) The Plaintiff is to pay the Defendant's costs.

Catchwords:

HIGH RISK OFFENDERS — Extended Supervision Orders — Preliminary hearing

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Lynn v State of New South Wales [2016] NSWCA 57

Texts Cited:

Nil

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Brian Donovan Defendant)

Representation:

Counsel:
H El-Hage (Plaintiff)
M Johnston SC (Defendant)

Solicitors:
Crown Solicitor (Plaintiff)
Legal Aid (NSW) (Defendant)

File Number(s):

2023/00148139

Publication restriction:

Nil

JUDGMENT

1. The State of New South Wales seeks a further Extended Supervision Order in respect of Mr Brian Donovan, who has been the subject of such an order since 2015.

2. Mr Donovan opposes any further order being made.

3. Extended Supervision Orders may be made under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). In this preliminary hearing the application was for an Interim Supervision Order pursuant to s 10A of the Act and for orders appointing experts to examine Mr Donovan pursuant to s 7(4).

4. Mr Donovan seeks that the State’s application be dismissed and no Interim Order or orders about examinations by experts be made.

5. Previous relevant proceedings are as follows.

6. In November 2012 Mr Donovan was sentenced in the District Court for an offence of recklessly causing grievous bodily harm. He was sentenced to 3 years 9 months imprisonment to date from 26 October 2011, expiring on 25 July 2015. The non-parole period of his sentence expired on 25 July 2014, but Mr Donovan was not released to parole and served the whole of his sentence.

7. In September 2015, after some preliminary hearings and orders, McCallum J in this Court made an Extended Supervision Order in respect of Mr Donovan, which commenced on 17 September 2015, with a duration of five years.

8. During the term of that order Mr Donovan has been sentenced to periods in custody for breaches of conditions of the order and other offences. The order was suspended for periods when Mr Donovan was in custody, which had the effect of extending the order until 19 May 2023, when it expired.

9. Mr Donovan is presently serving a 6 month Intensive Correction Order which expires on 13 June 2023 and is subject to a 12 month Community Correction Order which expires on 12 December 2023.

10. The State seeks a further Extended Supervision Order for 18 months to date from 13 June 2023, when Mr Donovan's ICO expires, and in these preliminary proceedings the Interim Order and other orders noted above.

11. The court may make an Extended Supervision Order in respect of a person if the four requirements in s 5B(a)-(d) are satisfied. Mr Donovan does not dispute that the requirements of s 5B(a)-(c) are established. They are as follows.

12. He has served a sentence of imprisonment for a “serious offence”, as defined in the Act, that being the offence of recklessly causing grievous bodily harm committed in 2011. He is a “supervised offender” in that at the time this application was made he was subject to the Extended Supervision Order made in 2015 and was also serving his ICO. The application was made while Mr Donovan was a “supervised offender” and within the last nine months of his current custody and supervision, in accordance with ss 5I and 6 of the Act.

13. The issue between the State and Mr Donovan is whether the Court is satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision, that being the test in s 5B(d) of the Act.

14. In contending that the Court will be so satisfied the State relies on Mr Donovan's record of prior offences, the nature of his offences, including offences of violence, his conduct during, compliance with, and breaches of the 2015 Extended Supervision Order, and reports of professionals who have expressed opinions about Mr Donovan's risk of committing a further serious offence, including as to the relationship between his use of substances and his risk of committing a serious violence offence. Evidence of all those matters was put before me in the hearing of this application.

15. In opposing a further order being made, Mr Donovan submitted through his Senior Counsel, essentially, that he has not committed any “serious offence” (as defined) since his release from custody in September 2015, and although he has breached his order by relapsing to drug use, and may be at risk of reoffending in that way, he does not pose an unacceptable risk of committing a further serious offence. Senior Counsel submitted that Mr Donovan’s situation now is different from his situation in 2015.

16. A “serious offence” is defined in s 4 of the Act to include “serious violence offences”, as defined in s 5A, and it is the asserted risk of Mr Donovan committing a further “serious violence offence” with which the State is concerned.

17. It is necessary to refer to some legislative provisions.

18. The primary object of the Act is stated in s 3 to include “… to provide for the extended supervision… of… high risk violent offenders so as to ensure the safety and protection of the community”. Another object of the Act is to encourage such offenders to undertake rehabilitation.

19. The court may make an Extended Supervision Order if the requirements of s 5B are satisfied. I have previously referred to them. An application for an Extended Supervision Order must be supported by particular documentation, specified in s 6 of the Act, referred to in the Act as “supporting documentation”.

20. The court may make an Interim Supervision Order, pursuant to s 10A, if it appears that the offender's current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order.

21. S 7 of the Act provides for a preliminary hearing of an application. If, following the preliminary hearing, the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order, the court must make orders appointing experts to conduct psychiatric or psychological examinations of the offender and provide reports to the court and directing the offender to attend those examinations: s 7(4). If, following the preliminary hearing, the court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order, the court must dismiss the application: s 7(5).

22. S 9(1) of the Act provides that the court may determine an application for an Extended Supervision Order by making such an order or dismissing the application. In determining whether or not to make an order, the safety of the community must be the court's paramount consideration: s 9(2). In determining whether or not to make an Extended Supervision Order, the court must have regard to the material specified in s 9(3):

• Reports from persons appointed under s 7(4) to examine the offender and the level of the offender's participation in any such examination

• Any other assessment by a qualified specified expert about the likelihood of the offender committing a further serious offence and the extent of the offender's participation in any such assessment

• The results of any statistical or other assessment of the likelihood of persons with similar histories or characteristics to the offender’s committing a further serious offence

• Any report by Corrective Services New South Wales as to the extent to which the offender can reasonably and practicably be managed in the community

• Any treatment or rehabilitation programs in which the offender has had the opportunity to participate and the extent of his participation in any such program

• Options in the community that might reduce the likelihood of the offender reoffending over time

• The likelihood that the offender will comply with the obligations of an Extended Supervision Order

• The offender’s compliance with a previous Extended Supervision Order

• The offender’s criminal history and any patterns of offending behaviour disclosed by that history

• The views of the sentencing court.

23. Because this was a preliminary hearing, there were not reports prepared pursuant to s 7(4). However, I was provided with and had regard to the reports of Dr Samson Roberts of July 2015, and Dr Jeremy O’Dea of July 2015, prepared for the 2015 application for an Extended Supervision Order, which the State relied on and which Senior Counsel for Mr Donovan conceded had historical significance in this application. Otherwise, the supporting documentation tendered by the State and received without objection by Mr Donovan included material specified in s 9(3).

24. Mr Donovan, now 53, has a long history of offending, including violent offending, which began when he was a teenager. His New South Wales record contains multiple assaults, assaults occasioning actual bodily harm, a malicious wounding, offences of intimidation, breaches of Apprehended Domestic Violence Orders, culminating in 2011 with the offence of recklessly causing grievous bodily harm. In Queensland he was sentenced in 1995 to 10 years imprisonment for rapes in company which he committed in 1994. His Queensland record also includes breaches of domestic violence orders.

25. The facts of his offences, as recounted in various of the reports, demonstrate that Mr Donovan had a history of inflicting serious violence on domestic partners. In 2005 he assaulted his mother. His offence history and his accounts of them to Dr O’Dea in 2015 showed he was often affected by alcohol and/or drugs when he committed violent offences.

26. Since being placed on the Extended Supervision Order in 2015 Mr Donovan has been convicted of breaching the conditions of his order nine times. These breaches involve drug use in 2015, 2016, 2017, 2018 and 2022, and a refusal to comply with a drug test in January 2023. He was also sentenced for a first offence of having custody of a knife in a public place in September 2022, to the current 12 month Community Correction Order.

27. In his report of July 2015, Dr Samson Roberts canvassed the role of alcohol in Mr Donovan's offending and that it affected his ability to control his aggression.

28. In his 2015 report Dr O’Dea also noted the relationship between Mr Donovan's abuse of alcohol and cannabis and amphetamine and expressed the opinion that abstinence from alcohol and drugs was crucial to managing Mr Donovan's risk of committing offences, including a further serious violence offence, in the community.

29. In sentencing Mr Donovan in 2012 Black DCJ observed that Mr Donovan needed "intensive attention from an appropriate service to his alcohol problems". His Honour did not say anything about an Extended Supervision Order in those sentence remarks.

30. Samuel Ardasinski, a senior psychologist, prepared a Risk Assessment Report in February 2015. He concluded then that because of Mr Donovan's poor control over his alcohol and other drug abuse and the impact of that on his propensity for violence, he presented an overall high risk of violent reoffending. In coming to that opinion he considered Mr Donovan's lengthy criminal history, that his offences of domestic violence had a pattern of escalating seriousness, his history of alcohol and drug use from his mid-teens, and that substances were highly correlated with his violent offending. He considered Mr Donovan's risk factors were a lack of employment, substance abuse, violence in relationships, past poor compliance with supervision, cognitive distortions and attitudes about his offending behaviour, limited insight and poor motivation to change.

31. When Mr Donovan was released on the Extended Supervision Order his compliance, as he conceded through his Senior Counsel, was initially inconsistent and he breached his order by drug use from 2015 through to early 2018.

32. It appears to be common ground between the parties that after Mr Donovan was released from custody in November 2018, after serving a sentence for breaching the order, he had a period of almost 4 years, until August 2022, during which he did not breach his order, commit any offences or use drugs. He moved through the four stages of monitoring under an Extended Supervision Order to stage 4, which does not entail electronic monitoring or scheduling, reaching stage 4 in September 2021.

33. He had obtained his driver’s licence in September 2020. He was living independently in a Department of Housing property from November 2020. He was briefly employed from February 2021 until April 2021. He visited his family in the Grafton area from mid 2021. In 2019-2020 he completed approximately 50 sessions of the Violent Offender Therapeutic Program Risk Management Intervention with two Corrective Services psychologists and was noted to be well engaged with the sessions.

34. Before he was subject to the Extended Supervision Order Mr Donovan had undertaken some rehabilitation programs, including SMART and IDAPT drug rehabilitation programs in 2013 and 2014 which he did not successfully complete, and an EQUIPS addiction program which he completed during October-December 2015. He began substance abuse treatment by Suboxone in November 2017. He had not undertaken the Violent Offenders Therapeutic Program in custody because he was assessed as suitable too late in his sentence to complete the program. However, as noted, he successfully completed it in the community in 2019-2020.

35. In April 2022 Ms Louise Robinson, a Community Corrections Officer prepared a Completion Report in respect of Mr Donovan's Extended Supervision Order. She noted that Mr Donovan continued to live in independent accommodation without concerns, he had visited his family in Grafton four times from June 2021 until February 2022 without incident; he had previously engaged in weekly drug and alcohol interventions but his attendance was no longer required from late 2020 given his demonstrated lengthy period of abstinence. He had been drug tested eight times with no drug detection until COVID caused testing to be suspended. After testing resumed Mr Donovan was not tested because he did not present with any substance abuse indicators. He continued to engage in an opioid replacement program on a takeaway basis. He was still unemployed.

36. In August 2020 his Corrective Services psychologist decided he was no longer required to attend the Violent Offenders Therapeutic Maintenance Program because of his demonstrated insight into his offending behaviour and his generally positive progress. A culturally appropriate service decided in November 2020 that Mr Donovan did not need to attend regularly given his apparent mental health stability and positive progress.

37. Ms Robinson stated in her report that Mr Donovan's initial response to his supervision, before he was released from custody in November 2018, was unsatisfactory, due to ongoing drug use and resistance to intervention, but since then he had significantly improved his engagement and communication and appeared to have maintained a lengthy period of abstinence. Ms Robinson said that over the past three years Mr Donovan had demonstrated an ability to reflect on his past behaviours and the negative impacts of his offending and he had refrained from substance abuse and criminal behaviours, and despite thinking about committing a break and enter offence he had chosen not to act on those thoughts.

38. Ms Robinson noted seven occasions from 2015 until January 2018 on which Mr Donovan had breached his order by drug use. She observed he had not committed any domestic violence offence since 2012. She said that since his release from custody in November 2018 his attitude and engagement appeared to have significantly improved and he presented with an increased level of motivation to remain abstinent. She stated that while Mr Donovan retained some "residual criminogenic attitudes" he had demonstrated he was able to reflect on his negative thoughts and conduct himself in a prosocial manner. Ms Robinson concluded that considering Mr Donovan’s demonstrated positive progress, Community Corrections did not recommend that a further Extended Supervision Order be sought.

39. Samuel Ardasinski, a Senior Psychologist in Corrective Services, prepared a Risk Assessment Report dated 7 February 2022, for consideration as to whether any further order should be sought in respect of Mr Donovan. Mr Donovan was not interviewed for the report. Mr Ardasinski noted that Mr Donovan's compliance during the first years of his order was "lacklustre".

40. Mr Ardasinski stated that although in his first report of 2015 he estimated Mr Donovan's risk of being convicted of further violent offences as within the high risk range, he assessed his risk in the 2022 report as in the low risk range. He assessed only four risk factors as remaining clinically significant in the 2022 scoring, being substance abuse, stability of relationships, employment and violent lifestyle.

41. He noted that Mr Donovan had remained abstinent from drug and alcohol use since his release from custody in November 2018 and said should he maintain that in the longer term this would mitigate his most significant risk factor longer term. However, he said should Mr Donovan be tempted to drink alcohol the potential for violence risk would increase exponentially. He observed that while subject to the order Mr Donovan had not involved himself in any serious intimate relationships so that it was difficult to know how he would manage himself if a domestic dispute arose after the completion of his order. However, he noted that Mr Donovan had shown himself able to manage his emotions quite well, even in conflicting and stressful situations, when dealing with his supervising officers. Mr Ardasinski considered that Mr Donovan's lack of employment and lack of motivation to work full-time was a risk factor for "repeat criminality". Mr Ardasinski stated "as indicated in my initial report, Mr Donovan's index serious violent offence was the culmination of an escalating trajectory of violence, not just domestic violence, since he was a juvenile. There have been no indications of violence since Mr Donovan made the decision to change in 2019. This is an inactive risk factor now, but since it was rated so highly [at the time of the 2015 assessment] Mr Donovan’s score on this item, even seven years later, remains clinically significant".

42. However, Mr Ardasinski expressed the opinion that there was little evidence in the material of real concern as to the risks coalescing, that Mr Donovan had the protective factors of family relationships, and "there do not appear to be issues of such significant concern to warrant a second ESO". Mr Ardasinski said "there is demonstrable progress in Mr Donovan's risk profile, even though some factors have remained difficult to reassess."

43. Mr Ardasinski said:

"the ultimate opinion for CHRO completion reports is to assess whether an ESO has rehabilitated an offender… or simply contained his or her risks of committing a further serious offence. The ESO, for Mr Donovan, appears to have done both, in that he has stopped using drugs and has not consumed alcohol for almost 3 years. However, his greatest risks have been assessed to be within domestic settings, and Mr Donovan has not engaged in any intimate relationships during the course of his ESO. He has all the outward signs of prosocial existence, with the exception of employment…

… I anticipate that there may be some future challenges ahead for Mr Donovan but with the amount of progress he has made over the course of his ESO it looks more promising than ever that he can face these challenges without resorting to violence."

44. On 28 August 2022 Mr Donovan was drug tested. On 30 August 2022 he admitted possible drug use to his supervising officer. On 1 September 2022 the drug test results indicated the presence of methamphetamine and amphetamine.

45. On 4 September 2022 at 10:30pm Mr Donovan was arrested in a car in Tarcutta in breach of his curfew conditions. He had two knives in a pouch in the driver’s seat cover and one stabbed into the driver’s seat near his leg. He was charged with custody of a knife in a public place.

46. On 11 January 2023 he was charged for having refused a drug test on 3 January.

47. On 21 October 2022 while Mr Donovan was in custody in respect of his August and September breaches he was found to have Suboxone in his cell.

48. On 30 November 2022 while in custody Mr Donovan threw a cup of hot coffee in the face of a wing supervisor, who was uninjured by the assault. Mr Donovan sent his apology to the supervisor through another person the next day. He has said he reacted to a racist remark directed at him.

49. In light of those further offences Richard Parker, Corrective Services Senior Psychologist, prepared a report dated 10 February 2023 for consideration of whether a further application for an Extended Supervision Order should be made in respect of Mr Donovan. Mr Donovan was not interviewed for the purpose of that report. Dr Parker's report was stated to focus on whether the change in circumstances of Mr Donovan's further offences led to a different assessment of his risk from that formed by Mr Ardasinski in his 2022 report.

50. Dr Parker said that the "Level of Service Inventory – Revised” (LSI-R) actuarial risk instrument is "a good predictor of general (any) reoffending but also a modest predictor of violence.” Using that instrument he said Mr Donovan’s score placed him in the medium/high category. Using the Violence Risk Scale (VRS) actuarial risk assessment tool "specifically developed to assess the risk of violence" Dr Parker noted Mr Ardasinski’s recent assessment of Mr Donovan as reduced from the high range to the low range, and taking into account his recent offences and their circumstances, Dr Parker concluded that Mr Donovan's score was in the medium range. Dr Parker said:

"Mr Donovan's behaviour has certainly improved since the time when the order was imposed. However his behaviour since Mr Ardasinski’s completion report was submitted suggests that the actual risk was higher than assessed by Mr Ardasinski. His propensity for substance abuse appears to be still quite problematic.

However, of more concern, the presence of knives concealed in his car and his use of violence whilst in custody suggests that he has not yet overcome some of the attitudes and beliefs that underpinned his violent behaviour. The claim that his drug use was encouraged by a female suggests that he is still motivated to seek out relationships that might be unsatisfactory – a catalyst for his serious violence. The fact that he missed multiple opportunities to take alternative behaviours… suggests that, while his desire to avoid violence has improved, his capacity to do so may still be precarious".

51. In March 2023 Dr Parker prepared a longer Risk Assessment Report, for which he interviewed Mr Donovan. Dr Parker considered Mr Donovan's offending history and history of alcohol abuse, and his breaches of his Extended Supervision Order, and stated "on actuarial instruments he is assessed as falling into the moderate to high risk categories, with the most concern being for future domestic violence offences. His offending is underpinned by antisocial attitudes, substance abuse and a psychopathic personality pattern."

52. Dr Parker said by virtue of the number of breaches of his order, Mr Donovan's compliance with supervision had been poor, although he noted the period of almost four years of complying with his order between his seventh and eighth breaches. Dr Parker noted that Mr Donovan’s supervising officer had said his compliance with his order was “somewhat superficial, learning to comply with the conditions of his order, rather than building an entirely different lifestyle”. He said the most recent breaches indicated Mr Donovan still struggles to resist the temptation to abuse drugs and his decision to flee the jurisdiction (when he was arrested in September 2022) indicates he still has a tendency to make poor decisions.

53. Dr Parker said "it is not scientifically possible to accurately predict whether or not an individual offender will or will not reoffend." He said part of that is because violent behaviour is the result of a person interacting with their environment and it is difficult to predict the situations a person might encounter in the community. Dr Parker also said "while actuarial instruments that mainly use historical factors assist in evaluating long-term risk, they can be insensitive to changes over time".

54. Using the LSI-R actuarial risk instrument Dr Parker assessed Mr Donovan as in the medium/high category. Using the Violence Risk Scale (VRS) actuarial risk assessment tool Dr Parker concluded Mr Donovan’s score was in the medium range. He said that the factors which had increased since Mr Ardasinski's second assessment included:

"Violence during institutionalisation; weapon use; substance abuse; violence cycle; and security level of release institution. These items all tap into underlying thought patterns and it would appear that, during times of stress, Mr Donovan is prone to relapse into old patterns of thinking – he was unable to resist the overtures of antisocial associates, lapsed into drug use, ran away from the consequences, armed himself with weapons and ultimately physically lashed out at a custodial officer. Whilst he was remorseful and apologised two days later, there were multiple stages when he could have chosen an alternative path, but failed to do so".

55. Using the Violence Risk Appraisal Guide-Revised (VRAG-R) actuarial risk assessment tool specifically developed to assess the risk of violence for serious offenders Dr Parker said Mr Donovan's score placed him in the ninth of nine "bins" and 76% of violent offenders with a similar score reoffended violently within five years, and 87% within 12 years.

56. Using the Domestic Violence Risk Appraisal Guide (DVRAG) actuarial instrument designed to measure the likelihood of further domestic assault Dr Parker said Mr Donovan’s score placed him in the highest of seven bins and that 100% of offenders whose score fell in the same bin as Mr Donovan reoffended with a further assault against a female domestic partner during an average follow-up period of 4.8 years. It is to be noted that contrary to that risk assessment Mr Donovan did not so reoffend in that time frame.

57. Dr Parker said Mr Donovan continues to have habitual thinking patterns that favour substance abuse and breaking of rules, which may be particularly acute during times of stress. He said Mr Donovan's attitudes towards offending include normalising violence as an acceptable means of solving problems, believing that the world is a hostile place and survival depends on being hyper-alert for potential threats and dealing with them severely, including by pre-emptive violence, which Dr Parker considered was demonstrated by Mr Donovan having knives in his car on his arrest in September 2022, and that his actions were outside his control when he was intoxicated. Dr Parker said substance abuse appears to have played a role in the majority of Mr Donovan's violent offences but his behaviour in custody suggests that it is not a necessary condition for violence.

58. I note, in respect of Mr Donovan's assault of the Corrections Officer in November 2022 that his record of offences in custody contains many entries in relation to drug tests, smoking and prison discipline, but the previous assaults occurred in 2010 and a previous intimidation occurred in December 2012.

59. Dr Parker said Mr Donovan's cooperation with Community Corrections and psychologists had been marked by a generally superficial approach. He said:

"Whilst I note that Mr Donovan has not committed any violent offences since his release to the ESO, it is also important to note that it is very difficult to use alcohol or other drugs with any regularity and not be subject to breach action – which will interrupt this pattern. Consequently, Mr Donovan has not been allowed to develop the type of substance-abuse levels which make violence more likely, due to the restrictions imposed by the ESO".

60. Dr Parker said the actuarial instruments used placed Mr Donovan at a moderate to high risk of violent and general recidivism, that he is capable of violence when sober but the risk appears to be heightened when he is intoxicated and it is possible that intoxication reduces his inhibitions against serious violence.

61. He said “on actuarial instruments Mr Donovan is assessed as falling into the moderate to high risk categories, with the most concern being for future domestic violence offences. His offending is underpinned by antisocial attitudes, substance abuse and a psychopathic personality pattern”.

62. Relying on the material tendered, the State submitted that the Court would be satisfied to a high degree of probability that Mr Donovan poses an unacceptable risk of committing another serious offence if he is not kept under supervision, by the cumulative effect of:

• Mr Donovan's lengthy criminal history

• The nature and seriousness of his past serious violence offences

• That his violent offending usually involved alcohol and sometimes illicit drugs

• That his offending often occurred while he was under supervision or soon after he was released from custody into the community

• That the nature of Mr Donovan’s significant violence offences in the past, including against his partners, indicates that the gravity of any potential reoffending is likely to be high

• Dr Parker's opinion that Mr Donovan poses a medium to high risk of violent reoffending, reduced from the 2015 assessment but still significant, including having regard to Dr Parker's assessments using the particular instruments

• That Dr Parker says Mr Donovan's risk factors for violent offending against a partner include drug and alcohol abuse and self-regulation, and Mr Donovan's recent breaches of his order involved drugs.

63. The Plaintiff relied on Mr Donovan's recent possession of knives on 4 September 2022 as concerning, and what the Plaintiff submitted were conflicting explanations given by Mr Donovan to police and supervising officers for his possession of those knives – that he told police they were tools for his car, not to use to break into houses, and that he said on other occasions he had them to defend himself, including against his daughter's partner. The Plaintiff submitted that the possession of the knives and those explanations raised real questions about Mr Donovan's lack of insight, ability to self-regulate and continuing attitudes and beliefs which have underpinned his previous offending.

64. In response to submissions made on behalf of Mr Donovan, the State submitted that Mr Donovan being subject to an ICO and CCO does not mean that he does not pose an unacceptable risk, and that while there was a four year period during which Mr Donovan did not breach his Extended Supervision Order, he did breach and offend before and after that period while under supervision in the community. The State submitted that the structured regime of an Extended Supervision Order enables the supervising team to be in a better position to intervene if "transgressions" occur, including substance abuse. In response to the submission on Mr Donovan's behalf that he has not committed a serious offence since the 2011 offence, the State submitted that he has been either in custody or under supervision since 2011 and the Court should infer that custody and supervision have worked to prevent him reoffending.

65. Counsel for the State submitted that nothing could be inferred as to the State's attitude from the order having lapsed, because preparation of an application by the State for a further order, including obtaining of documents and reports, takes time. Nor, counsel submitted, could the Court draw any inference from Dr Parker not having expressed an opinion about whether Mr Donovan poses an unacceptable risk, he having said that was a matter for the Court to determine.

66. Senior Counsel for Mr Donovan submitted that because risk is dynamic and changes over time, the State’s application must be determined on the risk Mr Donovan poses today, not as he was assessed in 2015. In that regard, Senior Counsel submitted that the significance of Mr Donovan's 2011 offence diminishes over time as part of the factors the Court must consider in assessing his risk, and relied on Mr Ardasinski having taken that offence into account in his 2022 assessment and yet assessed Mr Donovan as at low risk at that time.

67. He submitted it is highly significant that Mr Donovan has not committed any further serious offence since 2011 and since he was released from custody in 2015 until today. In response to the State’s submission that Mr Donovan has never been fully tested in that regard because he has always been in custody or under supervision, Senior Counsel submitted that people in custody or under supervision can and do commit violent offences.

68. Senior Counsel submitted that the evidence shows significant attitudinal change by Mr Donovan since 2015, as demonstrated by his four year period of no breaches or reoffending, during which he progressed through the four stages of monitoring and completed the Violent Offenders Therapeutic Program in the community, such that Mr Ardasinski in February 2022 assessed his risk of violent reoffending as low, reduced from high.

69. Senior Counsel submitted that Mr Donovan's offences since September 2015 reveal a history of drug use and unresolved addiction, but not a pattern of violence. Counsel submitted that the absence of violent offending, despite Mr Donovan living in the community for five years, supports a finding that his risk of committing a serious offence has significantly moderated. He submitted that Mr Donovan’s successful completion of the Violent Offenders Therapeutic Program in the community demonstrates he has made significant steps towards reducing his risk of violent reoffending and is a significant factor in his favour.

70. Counsel submitted Mr Donovan's recent breaches are not indicative of unacceptable risk, that he is engaged with health services for his mental health and alcohol and drug treatment, and can continue to be supervised under the CCO, which has conditions sufficient to ensure the safety of the community. Counsel places significant weight on Mr Donovan's not having committed a serious violence offence since October 2011. He submitted Mr Donovan's last breach was on 3 January 2023, that since then he has passed all drug tests and re-engaged with drug and alcohol counselling, that as with many offenders, he remains at risk of reoffending but not an unacceptable risk of committing a serious violence offence.

71. In respect of the offence of possession of a knife counsel emphasised he possessed a knife, he did not use it, including in any argument, altercation or confrontation, and that possession of a knife is not a “serious offence” as defined in the legislation. Of the different explanations Mr Donovan gave for his possession of a knife counsel submitted that his telling police they were tools was in response to the police alleging they were housebreaking implements and his explaining they were for another purpose, and his explanation that they were for defensive purposes must be viewed in the context that he did not use them for such and when he was arrested in possession of the knives he was not on the way to a particular place or to confront any person, but rather he was, as he told officers, running away because he was scared of detection of his drug use.

72. Counsel submitted that the assault on the Corrections Officer by throwing coffee on him, in response to what Mr Donovan says was a racist remark, and from which the officer was not injured, is not a “serious violence offence” as defined in the Act, and may be viewed as indicative of change in Mr Donovan's behaviour in that he did not act in a more serious way.

73. Counsel submitted that the State having permitted the order to lapse without a prior attempt to obtain an Interim Order indicates that the State accepts Mr Donovan does not pose an unacceptable risk of committing a serious offence if not kept under supervision. I have noted the State's response to that submission and I do not draw any inference about State’s position from the order having lapsed before the hearing of this application, which was filed on 9 May before the order expired. I note also that Mr Donovan is still subject to his ICO.

74. In determining the application I am conscious that the safety of the community is the primary object of the Act and must be the paramount consideration of the court.

75. In deciding whether I am satisfied to a high degree of probability that Mr Donovan poses an unacceptable risk of committing another serious offence if not kept under supervision by an order, I have had regard to the concept of “unacceptable risk” as construed by the Court of Appeal in Lynn v State of New [2016] NSWCA 57, wherein Basten JA said at [126] that the nature and seriousness of the risk posed by an offender with respect to further serious violent offences must be assessed "by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition".

76. In considering Mr Donovan's past conduct and the risk of possible future conduct I take into account that he has not been convicted of any serious violence offence since the 2011 grievous bodily harm offence. The State has submitted that that is not significant because he was in custody or under supervision since then. I accept Mr Donovan was in custody and under supervision during that time but he has committed offences in respect of drug use while under supervision and he has committed misconduct in custody. Moreover, people do commit offences of serious violence in prison. Mr Donovan's being in custody or under supervision does not entirely diminish or neutralise the fact that he has not committed any serious violence offence for over 11 years.

77. Further he had a period whilst under supervision on his order of almost 4 years drug and offence free. The material in the supporting documentation does not explain why he relapsed in 2022. I accept he may experience further relapses in respect of drug use and I accept that drug and alcohol use has in the past been associated with his committing serious violence offences. However, relapsing in respect of drug use does not automatically equate to a risk of his committing a serious violence offence. Although his past drug and alcohol use has been associated with violent behaviour his recent behaviour shows that drug use does not automatically lead to violence by him. I accept he has not been in domestic relationships whilst under supervision on his order but the reports show there has been some improvement and insight on Mr Donovan's part.

78. There is a difference of opinion between Dr Parker and Mr Ardasinski about Mr Donovan's risk of reoffending. Dr Parker acknowledges to an extent the qualifications on assessments using actuarial instruments. Mr Ardasinski assessed Mr Donovan's "violent lifestyle" as an inactive but still clinically significant risk factor, but still made his assessment of Mr Donovan's risk being in the low range. I appreciate my task in this preliminary hearing is to proceed on the basis that the material alleged in the supporting documentation would be proved.

79. I have taken into account the offence of possession of a knife and the circumstances of that offence.

80. Weighing all the risk factors, negative and positive in the supporting documentation I am not satisfied to a high degree of probability that Mr Donovan poses an unacceptable risk of committing another serious violence offence if he is not kept under supervision by virtue of an order. I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. Therefore, I must dismiss the application.

63. I make the following orders:

1. the Plaintiff’s summons filed on 9 May 2023 is dismissed.

2. the Plaintiff is to pay the Defendant's costs.

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Decision last updated: 06 June 2023