State of New South Wales v Galvin (Preliminary)

[2024] NSWSC 1460

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Galvin (Preliminary) [2024] NSWSC 1460

Hearing dates:

8 November 2024

Date of orders:

8 November 2024

Decision date:

09 November 2024

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

(a)    appointing two qualified psychiatrists or two registered psychologists (or a combination of such person) to conduct separate psychiatric and/or psychological examination of the defendant and to furnish reports to the Supreme Court on the results of those examinations on a date to be fixed by the court; and

(b)    directing the defendant to attend those examinations.

(2)   Order:

(a) (a) pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 4 December 2024 (the interim supervision order);

(b) pursuant to s 10D(1) of the Act that the interim supervision order be for a period of 28 days; and

(c) pursuant to s 11 of the Act directing that the defendant for the period of the interim supervision order comply with the conditions set out in the Schedule to these reasons.

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

Catchwords:

HIGH RISK OFFENDERS – extended supervision order – preliminary hearing – interim orders sought – appointment of psychiatrists or psychologists – risk assessment – supporting documentation, if proved, justify the making of an order – discretion – conditions – orders made

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Attorney General for New South Wales v Tillman [2007 NSWCA 119

State of New South Wales v Donovan [2015] NSWCA 280

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Stephen Galvin (Defendant)

Representation:

Counsel:
R Rodger (Plaintiff)
J Wilcox (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2024/329029

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: By summons filed on 4 September 2024, the plaintiff seeks an order that the defendant be subject to an extended supervision order (“ESO”). Various conditions are sought as part of that order. Prior to any final order being made, the plaintiff seeks interim orders as follows:

“1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) appointing two qualified psychiatrists or two registered psychologists (or a combination of such persons) to conduct separate psychiatric and/or psychological examinations of the defendant;

(a)    furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the court; and

(b)    directing the defendant to attend those examinations.

2.    An order:

(a) pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 4 December 2024 (“the interim supervision order”);

(b) pursuant to s 10C(1) of the Act that the interim supervision order be for a period of 28 days; and

(c) pursuant to s 11 of the Act directing that the defendant for the period of the interim supervision order comply with the conditions set out in the schedule to this summons.”

2. Ancillary relief is also sought to the effect that access to the Court’s file in respect of any document shall not be granted to a non-party without leave of a judge of the Court and any application for access by a non-party in respect of any document will require the parties to be notified by the Registrar so as to allow them an opportunity to be heard as to the application.

3. I do not understand there to be any opposition to that order and it is appropriate that it be made. With respect to the other orders sought, the defendant opposes the making of an interim supervision order (“ISO”) and the appointing of experts for the purposes of conducting examinations.

4. The defendant submits that the statutory test is not established so as to justify the making of those orders. In the alternative, the defendant submits I would exercise my discretion so as not to impose an interim supervision order. In this event the defendant accepts that the order would be made with respect to the appointment of appropriate experts. In the event that the interim supervision order is imposed, the defendant opposes the various conditions sought and has made submissions in that regard.

5. On the application the plaintiff read the affidavits of Ellen Southwood of 3 September 2024 and 10 October 2024. The plaintiff additionally reads the affidavit of Jesse Slattery-McDonald affirmed 10 October 2024 and the affidavit of Luke Sampson of 1 November 2024. The defendant relied on the affidavit of his solicitor, Zenah Amal Moussaoui affirmed 28 October 2024.

The Legislative Scheme

6. The Crimes (High Risk Offenders) Act 2006 (“the Act”) is designed to address the almost “intractable problem” of how the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release: State of New South Wales v Donovan [2015] NSWCA 280.

7. The objects are set out in s 3 of the Act: :

3    Objects of Act

(1)   The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2)   Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

8. Section 9(1) of the Act provides that this Court may determine an application for an ESO by making an order for an ESO or by dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration”. It follows that ESOs are in their nature protective and not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119. Section 7(3) of the Act requires a preliminary hearing into the application to be conducted within 28 days of the filing of the application. Section 7(4) provides that 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 ESO, the Court must make orders appointing relevant experts to conduct examinations and furnish reports to the Supreme Court and directing the defendant to attend those examinations. If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order I must dismiss the application: s 7(5).

9. Section 10A provides:

10A   Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court -

(a)    that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b)    that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

10. Section 10A(1)(a) is in this case satisfied. That is, it appears to me that the offender’s current supervision on parole will expire before the proceedings are determined. That appears clear given the expiry of the defendant’s sentence on 4 December 2024 and the time that can be expected to be required to obtain relevant reports and set a hearing date.

11. Section 7(4), as I have indicated, mandates the making of certain orders if the relevant test is satisfied. Section 10A by contrast provides the additional requirement in s 10A(a) and by the use of the word “may” a discretion as to whether an order should be made, see Tillman at [32]. Otherwise both provisions provide for the same threshold test, that is, “that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”.

12. That test draws attention to the central provision with respect to ESOs, s 5B, which provides:

5B Making of extended supervision orders—unacceptable risk

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

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

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

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

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

13. Section 5D further clarifies the test in providing that the court “is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence”.

14. The expression “supporting documentation” in ss 7 and 10A is defined in s 4 to mean the documentation referred to in s 6(3). That subsection provides that an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act and a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. The test ultimately requires satisfaction that “the matters alleged in the supporting documentation would, if proved, justify a positive finding with respect to each of the matters in s 5B.

Factual Background

15. I turn to the factual background of the matter. The defendant is presently 48 years of age. He left home at the age of 15 after which he spent a period of time living in a youth refuge. He has, however, when not in custody, resided either on the streets of Sydney or in temporary accommodation.

16. His criminal history is extensive, largely consisting of non-violent offences. Those offences include various property offences as well as offences in relation to the possession of knives or weapons and resisting and assaulting police. The vast majority of the defendant’s convictions, however, which total approximately 70, relate to the possession and use of drugs including cannabis, heroin and methamphetamine. Notably in the last 25 years the longest stretch of time the defendant has been in the community is 19 months.

17. In addition to convictions for what might be described as relatively minor offences, the defendant has been charged with three offences over time which are defined as serious violence offences under the Act. On 17 January 1999 the defendant, then aged 21, was charged with manslaughter. That charge arose as a result of the death of a man to whom the defendant had administered heroin. The prosecution was not proceeded with by the Director of Public Prosecutions. Nonetheless the plaintiff relies on that matter as being relevant to show the extent of the applicant’s drug addiction. I accept that it does have at least some relevance in that regard. On 27 February 2010 the defendant was again charged with manslaughter. On this occasion the defendant pleaded guilty and was convicted. Briefly, the offence arose in circumstances where the defendant joined an altercation between the victim and another person. He punched the victim in the nose with force, causing him to fall backwards and strike his head on the pavement. The victim lost consciousness and was pronounced dead the next day. With respect to that matter the defendant was sentenced to imprisonment for five years and three months with a non-parole period of four years and two months, commencing on 27 February 2010. The defendant declined to apply for parole with respect to that offence resulting in him serving his full sentence in custody.

18. On 5 August 2021 the defendant was charged with inflicting grievous bodily harm reckless as to occasioning actual bodily harm, contrary to s 35(2) of the Crimes Act. The defendant pleaded guilty to this offence. The facts of the offence, in short, were that the defendant was sitting on Oxford street in Sydney begging for money, whereupon he became engaged in an argument with the victim who was passing by. The defendant punched the victim once to the side of the face causing the victim to fall to the ground at which point the defendant started tugging on a bag around the victim’s shoulder apparently pulling the bag with sufficient force to lift the victim’s upper body from the ground. The defendant initially walked away but then returned to kick the victim to the body whilst he, that is the victim, remained on the ground. The victim required surgery to insert a “fixator” and 13 screws for a left humeral fracture. The defendant was affected by drugs at the time of the offence. With respect to that matter, the defendant was sentenced in the District Court to imprisonment for a period of three years and four months commencing on 5 August 2021 with a non-parole period of two years. The defendant was not released to parole at the expiry of that non-parole period, apparently taking a similar attitude to parole as he had done in the past. Subsequent to a change in that attitude, the defendant was ultimately released to parole with respect to this offence on 4 August 2024. The sentence will expire on 4 December 2024. This offence is relied on by the plaintiff as the “index” offence for the purposes of its application for the orders sought.

Risk Assessment

19. I turn to the assessment of risk. In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the factors set out in s 9(3) of the Act:

9    Determination of application for extended supervision order

…

(3)    In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—

(a)    (Repealed)

(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 serious 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 serious 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,

(e1)   options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)   the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)    without limiting paragraph (e2), 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 commit a further serious offence.

Section 9(3)(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

20. As this is a preliminary hearing no such persons have yet been appointed.

Section 9(3)(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 serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment

21. A risk assessment report and supplementary risk assessment report were prepared by Gillian Tulloh, senior psychologist, working within the Department of Corrective Services dated 5 April 2024 and 28 July 2024 respectively. Ms Tulloh, conducted an interview with the defendant on 27 March 2024 for the purposes of preparing her report. The defendant indicated that he did not usually talk to psychologists or other staff in prison but nonetheless participated, albeit it was reported by Ms Tulloh that he participated begrudgingly and ultimately terminated the interview after approximately one hour. Ms Tulloh scheduled a follow up interview, again via audio visual link, for the morning of Tuesday 2 April but was advised by custodial staff that the defendant had refused to attend.

22. I should note that the termination of the first interview was in the context of what were reported to be significant connectivity issues with the AVL link resulting in the interview being conducted by telephone with “some visuals”.

23. Ms Tulloh reported on the defendant’s history of drug abuse, stating that he started using illicit substances at approximately 14 to 15 years of age, that substance use escalating quickly. According to the report he began intravenous heroin use around the age of 15 or 16 and he has continued largely unabated from that time.

24. Ms Tulloh noted that the defendant has been homeless almost continuously from the time he left home, during that time living predominantly on the streets in the inner city suburbs of Sydney. That situation has, of course, been interrupted from time to time whilst the defendant has been serving periods of imprisonment, a circumstance which, as I noted earlier, has dominated the defendant’s life to date.

25. The defendant has been prescribed methadone in the past. He was first prescribed methadone while in custody in 2000, and has, for the most part, continued on the methadone program since that time. Despite that, he reported using other drugs to “top up” on his methadone dose. He reported using heroin as his drug of choice, but that he also uses methamphetamine on occasion.

26. Ms Tulloh noted that the defendant has no history of any significant relationships, including friendships, or history of employment. He reported that his only support was a worker from a church organisation in the inner city, stating his preference was to have no close friends or contact with family. As I have indicated, he has in the past declined to apply for parole. He told Ms Tulloh that he preferred to finish his sentence rather than being on parole in the community, as he generally fails to abide by conditions set by Community Corrections.

21. During his most recent time in custody the defendant has been prescribed Buvidal, which he receives as a monthly injection. He told Ms Tulloh that he felt he was doing well on this medication, and had not been using other drugs or topping up. It is to be recalled that Ms Tulloh’s report was prepared in April this year, prior to the defendant’s release to parole in August.

22. Ms Tulloh applied a number of statistical tools, and in her supplementary report applied a structured professional judgment tool for the purposes of assessing the risk of the defendant committing an offence of serious violence. Application of the statistical or actuarial tools resulted in assessments of the defendant falling within the high risk category for general and violent offending (LSI-R) or at high risk of re-offending compared with other violent offenders (VRAG-R) and again in the high risk range (VRS).

23. The structured professional judgment tool used by Ms Tulloh (HCR-20) resulted in Ms Tulloh expressing the opinion, based on that tool, that the defendant will require a high level of effort to prevent further violence, and has a number of areas of concern in the risk management domain. Informing Ms Tulloh’s assessment were a number of dynamic risk factors, including substance use; violent lifestyle; weapon use and criminal peers; criminal personality; criminal attitudes; cognitive distortions; impulsivity or emotional control; interpersonal aggression; lack of insight; poor compliance with community supervision; and a lack of support in the community.

24. Ms Tulloh assessed that the most likely scenario in which the defendant would engage in violent offending would begin with a relapse into substance use, potentially linked to instability in accommodation, resulting in a return to homelessness and instability with respect to his opiate replacement therapy. She opined that the violence could potentially be serious, particularly if the subject of the violence were vulnerable, noting in this regard that the defendant’s past behaviour suggested a failure to calibrate or restrain the level of violence inflicted.

Section 9(3)(d) - the results of any statistical or other assessment.

31. I have had regard to the results of statistical and other assessments. These matters were taken into account in the risk assessment reports of Ms Tulloh.

Section 9(3)(d)(i) – any report prepared by Corrective Services New South Wales as to the extent to which the defendant can reasonably and practicably be managed in the community

32. I have had regard to the risk management report prepared by Jason Saad dated 1 May 2024. That report discusses a number of potential conditions which might be placed on the defendant in the context of an ESO, and the potential benefits of such conditions. A number of conditions discussed in the report, such as electronic monitoring and scheduling, are not in fact sought by the plaintiff.

33. The report otherwise provides a rationale for various conditions or analogues of conditions that are in fact sought. Without intending any disrespect, the report largely points out the obvious advantages for monitoring the defendant (through meetings and inspections), restricting the defendant (such as through restricting his associations), and directing the defendant (such as directing him to rehabilitative programs in the context of the defendant’s longstanding drug addiction).

Section 9(3)(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.

34. Treatment and rehabilitation programs in which the defendant has had an opportunity to participate, and his willingness in that regard, are discussed in the risk assessment report and the supplementary risk assessment report. As I have indicated, the defendant has, until very recent times, been unwilling to engage in programs through Corrective Services. He has in more recent times softened in that regard, and in fact completed a program known as EQUIPS.

Section 9(3)(e)(i) - options, if any, available if the offender is kept in custody or is in the community, whether or not under supervision, that might reduce the likelihood of the offender re-offending over time.

35. The available options available to the defendant have been discussed both in the risk assessment reports and the risk management reports. It might be said that the available options available such as might reduce the offender’s likelihood of re-offending raises a difficult question in this case, given the somewhat unusual features of the defendant and his historical unwillingness to cooperate.

Section 9(3)(e)(ii) - the likelihood that the offender will comply with the obligations of an extended supervision order.

36. As with the options available to the defendant, there is clearly a concern in this regard on the current state of the material, again having particular regard to the defendant’s history.

Section 9(3)(f) - the level of the offender’s compliance with any obligations to which he has been subject while on release on parole or while subject to an earlier extended supervision order

37. As I have indicated, there have been, over a significant period of time, difficulty with the management and supervision of the defendant. His unwillingness to comply is perhaps best exemplified by his refusal to apply for parole in the past.

Section 9(3)(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

38. This paragraph has no application in the defendant’s case.

Section 9(3)(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

39. I have had regard to the defendant’s history. As I have said, the commission of offences and consequent periods of incarceration have been a dominant feature of the defendant’s life. In the context of the present application, the serious violent offences committed by the defendant are of obvious relevance.

Section 9(3)(h1) - the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

40. I have had regard to the views of Townsend DCJ in passing sentence on the defendant for the index offence.

Section 9(3)(i) - any other information available as to the likelihood that the offender will commit a further serious offence

41. I am also entitled to have regard to any “other information” as available, as to the likelihood that the defendant will commit a further serious offence. In that regard the plaintiff points to the charge of manslaughter, which was withdrawn by the Director of Public Prosecutions.

42. As I have indicated, that matter does have some relevance. It perhaps demonstrates a commitment to continue using drugs, despite an experience that would have deterred many others. That said, the time which has elapsed since that event and the non-violent nature of the incident has the result that it is of, at best, marginal relevance.

Determination

Would the matters alleged in the supporting documentation, if proved, justify the making of an order?

43. I approach the test on the basis I have already set out.

44. There is no issue, based on the matters alleged in the supporting documentation, that the defendant satisfies the requirements of s 5B(a) of the Act, that is, he is an offender as defined in s 4A of the Act and has served a sentence by way of actual custody for a “serious offence” as defined in ss 4 and 5A.

45. I am also satisfied that the defendant is a “supervised offender” for the purposes of s 5B(e), and that the application for the order has been made within s 5I. The issue which remains is whether the matters alleged in the supporting documentation would, if proved, justify the court’s satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

46. The present case is not a straightforward one. I have received considerable assistance from the parties, including the written submissions of both counsel, supplemented by their oral submissions this morning.

47. There is merit in the arguments put on behalf of the defendant. I suspect that the defendant is not, at first blush, the type of offender the legislature had in mind when introducing the legislation. He is a long-term drug user, who has preferred a homeless lifestyle, and in that context committed a very large number of relatively minor offences.

48. Despite a lifestyle that has seen him spending considerable time on the streets, and presumably exposed to the type of minor disputes that can erupt, he has not in general demonstrated a significant propensity for violence. Nonetheless, he has committed two offences of serious violence within the definition under the Act. The first of those, the offence of manslaughter, involved a single punch. The consequences of that punch went well beyond anything that may have been intended, nor likely anticipated by the applicant at the time. The other, grievous bodily harm, reckless as to the infliction of actual bodily harm, again involved injury which went beyond what may have been intended. That particular offence, whilst falling within the definition of a serious violence offence, it might be noted falls at the lower end of the level of seriousness of offences within that definition.

49. As to the risk of a serious violence offence in the future, the defendant submits the risk was assessed in the risk assessment report as only “moderately likely.” That expression is somewhat vague. I do not say this critically. Rather, it is necessary to read it in the context of the whole of the reports, that is, the risk assessment report and the supplementary report.

50. Ms Tulloh ultimately qualified the risk of the commission of a serious violence offence as being something more than 50 percent but less than 75 percent over seven years. The use of the expression “serious offence” by Ms Tulloh in this context I do not understand to be precisely reflective of the statutory definition. Further, the risk presented would be no doubt somewhat less over a period of three years, that being the period of order sought compared to the seven-year period used by Ms Tulloh. Despite those qualifications, the figures cited by Ms Tulloh give some context to her assessment of the risk as “moderately likely”.

51. The defendant additionally points to the fact that he has been largely successful on parole. There has been some stability in his accommodation, which augers well for his reintegration into the community in a manner which will significantly reduce the risk of the commission of a serious violence offence. That said, the defendant has been in the community on parole only since his release on 4 August this year. That is, particularly in the context of the defendant’s history, a very short time. Whilst he has a further period of parole, which does not expire until December, that again remains a short period, given the defendant’s history.

52. The defendant also raises questions as to the suitability and, perhaps more significantly, the viability of the programs to which the defendant would be directed under any order, together with his amenability to supervision more generally. There is no doubt that there will be difficulties in establishing and maintaining a positive relationship that will assist the defendant and, in turn, provide for community safety. It is clear that this will require a nuanced approach on the part of any supervisor. The evidence available at present, however, suggests that this is not an unattainable objective.

53. Perhaps more fundamentally, the defendant points to the premise on which the defendant has been calculated to present a risk of committing a serious violence offence. He submits that that risk is, according to the expert report, dependent on a combination of factors, in essence making the submission that the requirement for a combination of factors to come together impacts on the probability of the event.

54. The difficulty with the defendant’s submission in this regard is that the various factors concerned are not independent of one another. In essence, what is postulated in the risk assessment report is a situation in which the defendant relapses into drug use with the potential that that will impact on his housing, resulting in homelessness with the likelihood, in turn, that the defendant will be interacting with other persons while on the street in circumstances not dissimilar to that which occurred in the context of the manslaughter offence and the index offence. That, to me, rather than appearing to be an unlikely combination of events, seems like a reasonably foreseeable chain of events in the context of the defendant’s history.

55. Any violence that might erupt in the context of such a situation does have the potential to be serious. Ms Tulloh noted that on the past occasions where serious violence offences have been committed, the victims have been older than the defendant and vulnerable. Perhaps more significantly, she observed that there was no “lead up” which may have allowed some warning to the victims as a result of which some form of evasive or preventative action may have been taken.

56. Thus it seems to me that whilst it is unlikely that the defendant would act with an intent to cause serious harm, the circumstances in which he might find himself are likely to be such that the eruption of violence is relatively spontaneous, with the potential to lead, as it has done in the past, to consequences beyond that which may be anticipated. Adding to the concerns in this regard, the defendant has maintained his entitlement to resort to violence despite the serious harm that has resulted in the past.

57. In relation to the manslaughter offence, in speaking with Dr Nielssen, forensic psychiatrist, in 2011, the defendant expressed his view that his actions were justified. In relation to the 2023 offence, he has maintained that it was an appropriate response to the victim’s provocation. He told Ms Tulloh, as reported in the risk assessment report, that the victim had stolen from him and that he “gave him a kickin’” in response. This attitude, which appears to be entrenched, highlights the potential for risk should the defendant fall back into addiction and homelessness.

58. The entrenched nature of the defendant’s problems support the likelihood of the defendant committing a further serious violence offence in the event that he does not have the support of either parole or, on its conclusion, supervision under an extended supervision order.

59. I have had regard to all the material, and in particular the risk assessment report and supplementary risk assessment report. For the purposes of the test to be applied, I accept the opinion of the author of those reports. I am of the view that the matters alleged in the supporting documentation are capable of satisfying a court to a high degree of probability that the offender poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order. In other words, the material in the supporting documentation would, if proved, justify the making of an extended supervision order.

The discretion

60. The defendant’s submission is that in the exercise of my discretion I would, even if the test were satisfied, not impose an ISO. In that regard he points to the defendant’s current engagement with The Salvation Army, through which he has found his current accommodation and through which he appears to be positively engaged in processes directed to assisting him in attaining a level of stability.

61. In particular he has engaged with mental health supports and received a mental health care plan and undertaken a comprehensive mental health assessment. He has attended a session with a forensic psychologist and is currently booked into further sessions. The letter from The Salvation Army relied upon on the application also indicates that the defendant has been generally compliant with requirements with respect to his accommodation and case management while residing at Foster House. Without going into further detail, the letter speaks in very positive terms with respect to the defendant’s engagement. That is certainly encouraging. It would appear to reflect a significant change in the defendant’s outlook.

62. Against that, however, as I have already said, the period over which the defendant has been on parole to date is very short. Additionally, it has not been trouble free. He has disclosed methylamphetamine use as recently as September this year. On the one hand, he is to be commended for that disclosure to his parole officer. That would appear to be a very different approach to that which the defendant is likely to have taken until very recently. On the other hand, it does highlight the defendant’s ongoing vulnerability in the context of long term addiction. Significant, in my view, is the assessment in the Risk Assessment Report acknowledging the unique challenge posed by the defendant but noting the recent improvements in attitude. In that context the author expressed her opinion that the present point in time provides a unique opportunity for positive intervention.

63. Having regard to those matters, I am of the view that the discretion should be exercised so as to impose an ISO. The factors to which I have referred however, both in terms of the satisfaction of the statutory test and the exercise of the discretion, are significant in informing the various conditions which should be imposed. In short, I am of the view that the conditions should be limited so as not to be more intrusive than is warranted. It is hoped by this measure that the defendant is not discouraged, or at least overly discouraged, in the positive steps he has recently taken.

Conditions

64. I turn then to the conditions. The plaintiff has set out in a schedule the various conditions sought. I shall address each by reference to the schedule to the summons.

65. Condition 1 [Condition 1] [1] requires the defendant to accept the supervision and guidance of a Departmental Supervising Officer (DSO). Such a condition is a basal condition for the functioning of the order and is appropriate.

    1. The number of the condition appearing in brackets has been added after giving these reasons. As I have not imposed all of the conditions which were sought in the summons, the number of the condition discussed does not necessarily correspond to the number of the condition as it appears in the schedule to this judgment. The number appearing in square brackets relates to the condition to that schedule.

66. Proposed Condition 2 [Condition 2] relates to the giving of directions electronically, including by SMS messaging, and is appropriate.

67. Condition 3 [Condition 3] requires the defendant to truthfully answer questions from a DSO or other persons supervising him under the order as to where he has been, where he plans to go, the nature of activities undertaken and associations. Without such a condition there is no capacity for meaningful supervision under the order and as such, condition 3 is in my view appropriate.

68. Condition 4 [Condition 4] relates to the sharing of information between persons involved in the defendant’s supervision and is appropriate.

69. Condition 5 [Condition 5] requires the defendant to live at an address approved by a DSO and notify in relation to any change of address and is in my view appropriate.

70. Condition 6 was not pressed. Nor was condition 7 pressed.

71. Condition 8 [Condition 6] requires the defendant to allow a DSO to visit him at his address and is in my view an appropriate concomitant of the defendant’s supervision.

64. Condition 9 [Condition 7] requires the defendant to, in essence, stay at his approved address overnight unless he has the approval of a DSO. Again, this is appropriate.

65. A modified form of Condition 10 [Condition 8] was proposed at the hearing. The effect of Condition 10 is to require the defendant to notify his DSO of visitors to his accommodation. That condition in its modified form is appropriate.

66. Condition 11 [Condition 9] is a similar condition in relation to persons staying overnight and again, in its modified form, is appropriate.

67. Conditions 12 [Condition 10] and 13 [Condition 11] are mandatory conditions under the Act and will be imposed.

68. Condition 14 [Condition 12] allows a DSO to restrict the places that can be visited by the defendant. Such a condition is, in my view, appropriate having regard to the potential for there to be locations where the defendant might be regarded as being as at greater risk of either consuming drugs or obtaining drugs or committing offences more generally.

69. Condition 15 [Condition 13] is a condition in relation to participation in programs and is appropriate having regard to the defendant’s needs.

70. Condition 16 [Condition 14] relates to participation in employment, volunteer work and educational courses. Whilst unlikely to be engaged, it is appropriate that the DSO be made aware of the defendant’s participation. The condition is appropriate.

71. Condition 17 was not pressed.

72. Condition 18 [Condition 15] seeks to restrict the defendant’s possession and use of alcohol, prohibited drugs and prescription drugs. In the context of the defendant’s chronic drug abuse history that condition is appropriate in so far as it relates to prohibited drugs and prescription drugs. There is insufficient material to suggest a problem with respect to alcohol. Given that that is a legal drug, and one commonly used in social interactions in our community, I do not regard proposed condition 18(a) as appropriate and it will not be imposed.

73. Condition 19 [Condition 16] requires the applicant to submit to drug and alcohol testing. Having regard to what I have just said condition 19 should be imposed but solely in relation to drug testing.

74. Condition 20 was not pressed.

75. Condition 21 [Condition 17] would require the defendant to participate in programs directed to rehabilitation with respect to drug and alcohol. Given the defendant’s history this is appropriate.

76. Condition 22 [Condition 18] would allow the DSO to impose, in effect, a non-association condition with respect to specified persons. That condition is, in my view, appropriate given the potential for the defendant to engage with persons who might interfere with his rehabilitation.

77. Condition 23 [Condition 19] would restrict the defendant from associating with certain persons. The modified form of that order should be imposed subject to deletion of 23(a) related to alcohol.

78. Condition 24 was pressed subject to modifications. The plaintiff seeks a condition which would require the defendant to agree to disclosing his criminal history if that disclosure is relevant to the risk of him re-offending or his rehabilitation. Such a condition is not appropriate in my view. The defendant’s risk arises in the context of interactions or potential interactions with persons on the street or perhaps through whom he has come into casual contact. The condition does not appear to me to be sufficiently related to that risk.

79. Condition 25 [Condition 20] relates to the possession of firearms and weapons and is appropriate.

80. Condition 26 [Condition 21] is a similar condition in relation to other potential weapons with an appropriate exclusion. Condition 26 is appropriate and will be imposed.

81. Condition 27 seeks to impose a requirement to comply with directions in relation to communication, electronic devices and internet access. That condition is in my view a significantly intrusive proposal which is not justified in the context of the manner in which the defendant’s risk is likely to present.

82. Condition 28 [Condition 22] provides search powers to the DSO or a delegate of the DSO and is in my view appropriate as part of the adequate supervision of the defendant.

83. Condition 29 [Condition 23] relates to condition 28 and is appropriate.

84. Condition 30 [Condition 24] would prevent the defendant changing his name and is appropriate.

85. Condition 31 [Condition 25] proposes a restriction with respect to the defendant changing his appearance. An appropriate form of such a restriction in my view is one requiring the defendant to notify his DSO within 24 hours of any significant change in his appearance.

86. Condition 32 [Condition 26] requires the defendant to allow himself to be photographed for the purposes of identification. That is not particularly onerous and is appropriate.

87. Condition 33 [Condition 27] requires the defendant to notify his DSO in relation to any change to his current forms of identification. That condition is, in my view, appropriate.

88. Condition 34 [Condition 28] requires the defendant to undergo ongoing psychological or psychiatric counselling or assessment and is in my view appropriate in the context of the defendant’s history and needs.

89. Condition 35 [Condition 29] requires the defendant to undergo an assessment for the purposes of a mental health care plan if directed. While this has already occurred and is unlikely to be needed the condition is, nonetheless, in my view, appropriate given the potential for an updated assessment to be required.

90. Conditions 36 through to 41 [Conditions 30 through to 35] relate to the defendant’s health care. A significant risk with respect to the defendant is his failure to continue with his current opiate replacement therapy. There are related risks with respect to a failure to maintain relationships with health care providers and follow their advice.

91. In that context the amended form of the proposed orders in Conditions 36 through to 41 [Conditions 30 through to 35] are, in my view, appropriate.

92. I direct the parties by 5pm on 11 November 2024 to provide to my Associate a schedule setting out the conditions in accordance with those reasons. That schedule will be annexed to the orders I now make.

Orders

101. I make the following orders:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

1. appointing two qualified psychiatrists or two registered psychologists (or a combination of such person) to conduct separate psychiatric and/or psychological examination of the defendant and to furnish reports to the Supreme Court on the results of those examinations on a date to be fixed by the court; and

2. directing the defendant to attend those examinations.

2. An order:

1. pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 4 December 2024 (“the interim supervision order”);

2. pursuant to s 10D(1) of the Act that the interim supervision order be for a period of 28 days; and

3. pursuant to s 11 of the Act directing that the defendant for the period of the interim supervision order comply with the conditions set out in the Schedule to these reasons.

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

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State of NSW v Galvin - Schedule of Conditions of Supervision (254935, pdf)

Endnote

Decision last updated: 15 November 2024