State of New South Wales v Grant Michaels (Preliminary)

[2025] NSWSC 51

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Grant Michaels (Preliminary) [2025] NSWSC 51

Hearing dates:

4 February 2024

Date of orders:

17 February 2025

Decision date:

17 February 2025

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court directs that the State bring in Short Minutes of Order reflecting this decision by no later than 4:00pm today, Monday 17 February 2025.

Catchwords:

HIGH RISK OFFENDER – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – s 5B(d) – whether parole conditions should be imposed under an Interim Supervision Order – disputed conditions

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Attorney General for the State of NSW v Winters [2007] NSWSC 611

State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375

State of New South Wales v Cannon [2022] NSWSC 1622

State of New South Wales v Devries (Preliminary) [2021] NSWSC 949

State of New South Wales v Lee [2017] NSWSC 1766

State ofNew South Wales v Loto [2020] NSWSC 222

State of NSW v CD (Preliminary) [2021] NSWSC 1396

State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813

Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Grant Michael (a pseudonym) (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
G Marsden (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2024/342278

Publication restriction:

Nil

JUDGMENT

1. By a Summons filed on 12 September 2024, ^[1] the State of New South Wales (“the State”) sought an Extended Supervision Order (“ESO”), for a period of 2 years, in relation to Grant Michaels^[2] (“the defendant”) pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

   1. The Summons was signed and dated 11 September 2024 but I note it was filed on 12 September 2024.

   2. The name ‘Grant Michaels’ is a pseudonym which has been used to ensure that no breach of s 15A Children (Criminal Proceedings) Act 1987 (NSW) (“CCP”) occurs.

2. The defendant is currently on parole for the index offence, namely, causing grievous bodily harm with intent, which is due to expire on 28 February 2025. No supervisory arrangements will be in place after that date.

3. For the purposes of the preliminary hearing, the State sought the following interim and interlocutory relief:

1. An order pursuant to s 7(4) of the Act appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court.

2. An order pursuant to ss 10A and 10C(1) of the Act, that the defendant be subject to an Interim Supervision Order (“ISO”) for a period of 28 days on the expiry date of the defendant’s head sentence.

3. An order pursuant to s 11 of the Act directing the defendant, for the period of the ISO, to comply with the conditions set out in the Schedule to the Summons.

4. An order restricting access to the Court file for non-parties.

4. In relation to the form of interim relief proposed in (4) above, I note that the following order was made in September 2024 by McNaughton J:

“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 to the Court’s file is made by any non-party, the parties to the proceedings are to be notified by the Registrar so as to allow them an opportunity to make submissions as to whether or not such access ought to be granted.”

5. As such, no further order of this kind is required to be made.

BACKGROUND

6. The parties provided the Court with a Joint Statement of Agreed facts (“Agreed Facts”) which outlined the defendant’s background as follows:

“1. Grant Michaels (a pseudonym) (“the defendant”) is a 30-year-old First Nations person who has been on parole since 29 August 2024, serving a sentence of imprisonment for the index offence of causing grievous bodily harm with intent, which expires on 28 February 2025.

2. The defendant experienced an unsettled and traumatic childhood, being an alleged victim of sexual and non-sexual abuse. As a juvenile, he witnessed the suicide of his girlfriend and the murder of his stepfather.

3. The defendant has a history of substance abuse. He began using cannabis daily from the age of 14 and smoking ice daily from the age of 16, which escalated after his stepfather’s murder.”

7. The Agreed Facts also discussed the relevant violent offending history of the defendant.

8. The defendant began offending from the age of 16, including property theft, affray, resist officer in execution of duty, common assault (DV), destroy or damage property, aggravated enter dwelling, aggravated break and enter and reckless grievous bodily harm in company.

9. In 2011, when the defendant was 16, he was sentenced for affray, resist or hinder police officer in the execution of duty and use of offensive language. The defendant punched a payphone at a railway station, proceeded to have an argument with a male who he also punched and was eventually apprehended by police. Following a plea of guilty he was sentenced to a bond pursuant to subs 33(1)(a)(ii) of the CCP.

10. In 2011, when the defendant was 16, he pleaded guilty to and was sentenced for a common assault where he punched a female.

11. He was sentenced to a bond pursuant to subs 33(1)(e) of the CCP.

12. In 2012, when the defendant was 17, the defendant pleaded guilty to, and was sentenced for common assault and destroy property for a dispute with his mother. During an argument, the defendant pushed his mother against a garage door and later smashed her phone. He was sentenced to a bond pursuant to subs 33M(1)(e) of the CCP.

13. In 2012, the defendant pleaded guilty to, and was convicted of resist officer in execution of duty and assault officer. The defendant refused to pay for chocolate at a store. Later when he was told to move on from a carpark, the defendant was verbally abusive to police, shoved an officer in the chest and punched another in the forehead. He was sentenced to a combination of s 9 bonds and convictions without further penalty.

14. In 2016, the defendant pleaded guilty to, and was convicted of grievous bodily harm in company. The defendant entered a house and assaulted two males, resulting in one of the victims sustaining serious injuries. Judge O’Rourke found the objective seriousness of this offence to be in the mid-range.

15. In 2019, the defendant was convicted of causing grievous bodily harm with intent (“the index offence”).

16. The defendant pleaded guilty to the offence and the facts, as agreed, were as follows:

1. In 2017, there was an altercation between the victim and another inmate, both of whom were cellmates and housed in a protective wing of the goal in which the defendant was located. As a result of an altercation, the victim punched his cellmate. It is likely that the inmate who received this punch discussed what had occurred with fellow inmates within the wing. The next day, the defendant entered the victim’s cell with a third inmate (and co-accused). The defendant assaulted the victim and the two left the cell. Other inmates observed the victim lying on his cell floor and they tried to rouse him without success.

2. The victim suffered severe traumatic brain injuries.

3. On 30 August 2019, the defendant received a sentence of imprisonment of six and a half years dating from 30 August 2018, with a non-parole period of four years.

4. The defendant was released to parole on 29 August 2024.

THE STATUTORY SCHEME

17. The broad principles relevant to the determination of a preliminary hearing were stated in the decision of State of New South Wales v Cannon [2022] NSWSC 1622 as follows:

“(1) Whether the alleged matters would justify the making of an extended supervision order at final hearing. The Court is not required to predict the outcome of that final hearing rather the Court determines whether it would be reasonably open to make an extended supervision order at final hearing assuming proof of the matters. This involves a consideration to which I will turn shortly of the satisfaction of the conditions in s 5B of the Act and whether the Court might exercise a jurisdiction under s 9(1) of the Act.

(2) If the Court is satisfied of the making of the extended supervision order in all the circumstances the Court is mandated to make an order under s 7(4).

(3) Assuming that s 7(4) orders are made whether an interim order ought to be made is to be considered under s 10A of the Act. That provision is enlivened if it appears the defendant's supervision will expire before the final determination of the extended supervision order.

(4) In determining those matters the Court is required to consider the objects of the Act insofar as they concern the safety and protection of the community.

(5) Finally, it is appropriate to give weight at this stage of the proceedings to risk avoidance.”

18. The primary object of the Act is to provide for the extended supervision and detention of high risk violent offenders “so as to ensure the safety and protection of the community” (subs 3(1)). Another object “is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation” (subs 3(2)).

19. As stated earlier in this judgment, the defendant’s term of parole is due to expire on 28 February 2025 enlivening s 10A of the Act that the “Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order”, 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”.

20. Subsection 9(1) of the Act allows a Court to determine an application for an ESO by either making an ESO or dismissing the application. The factors listed in subs 9(3) of the Act must be taken into account when determining the outcome of an ESO application in addition to “any other material” the Court considers necessary.

21. Submissions in this matter concerning the assessment of whether the supporting documents, if proved, would “justify the making of an ESO” addressed the defendant’s criminal history (subs 9(3)(h)), the Risk Assessment Report of Dr Richard Parker of 27 February 2025 (“RAR”) (subs 9(3)(c) and (d)), the Risk Management Report of Community Corrections Officer, Krishna Iyer, of 5 April 2024 (“RMR”)(subs 9(3)(d1)), the defendant’s participation or willingness to participate in treatment or rehabilitation programs and his level of participation (subs 9(3)(e)), options that might reduce the likelihood of the defendant’s offending over time (subs 9(3)(e1)), the likelihood that the defendant will comply with the obligations of the ESO (subs 9(3)(e2)), the level of the defendant’s compliance with obligations while on release to parole (subs 9(3)(f)) and the views of the sentencing court at the time the sentence of imprisonment was imposed (subs 9(3)(h1)).

22. The defendant’s criminal history was discussed earlier in this judgment as set out in the Agreed Facts, however, the State’s submissions expand on the circumstances of the ‘serious violence offences’. These are as follows:

“23. The Claymore offence. In 2016 the defendant committed the Claymore offence with two co-offenders. The victim and his girlfriend had previously become involved in an argument with the defendant’s two co-offenders about a mobile phone and money.

24. On the evening of the offence the primary victim had a friend visiting him. The friend was downstairs at about 8pm and saw three males enter. Two of the males punched and kicked him while a third stood near some stairs to the upper level, holding a knife. One of the attackers and the third male (male 3) went upstairs. The remaining male (male 2), also now holding a knife, remained with the friend of the victim, who panicked, pushed male (2), and ran outside.

25. The primary victim’s recollection was of standing on the stairs and seeing his friend being pushed into a downstairs room by the defendant and one of the other males (male 2). Male 3 approached the victim and shook his hand and said “don’t get involved”. The victim recalled male 2 then approaching him and punching him to the left side of the face, and he fell down. He has no further recollection.

26. The female neighbour then saw the victim crawling on all fours, with blood over her face. She heard her front door kicked open and male 2 came in, saying “where the fuck are you [victim]?” The neighbour ran into the victim’s home and dialled 000.

27. The victim’s friend (the person assaulted downstairs) nominated the defendant as the main person who had assaulted him, hitting him four times. He described the defendant as holding a knife. he described the other two males as kicking him in the ribs.

28. The primary victim suffered extensive facial bruising, laceration to his left eyebrow and swollen eye, left nasal displacement, laceration to the right medial aspect of the eye, and extensive facial bone fractures around the eyes, sinus and nose. The friend of the victim suffered a swollen face and rib cage and split gum. The defendant denied being present and involved in the attack when interviewed, but later admitted being involved in a sentencing assessment, but declined to discuss it. Each offender was sentenced on the basis of their direct involvement and as being part of a joint criminal enterprise.

29. The defendant later claimed that the secondary victim owed the defendant $100. The defendant said it was a wrong, dumb decision but also stated that “everyone got what they deserved” and that the defendant “had no feelings for [the victim]”. The defendant claimed to have been under the influence of alcohol and illicit substances at the time of the offending. In an interview with psychologist Pierrick Jacquety in 2019, the defendant claimed that the person who owed $100 was not there at the house, so that the victim’s cousin was assaulted instead.

30. The sentencing judge found special circumstances and sentenced the defendant to an aggregate sentence of 5 years imprisonment dating from 12 October 2016 and expiring on 11 October 2021, with a non-parole period of 3 years.

31. The Parklea offence (index offence). On 23 February 2017 the victim, an inmate, punched his cellmate after an argument. The cellmate later discussed the incident with other inmates. The following day, the defendant and another inmate entered the cell and the defendant assaulted the victim. The victim was found lying unconscious on the cell floor and taken to Westmead hospital with severe brain injuries.

32. Shortly after the assault, another inmate asked the defendant why they had assaulted the victim. The defendant replied: “Just to fit in”. Other inmates variously described hearing a crack and a thud and seeing the victim with blood coming from his ears and nose. At hospital the victim was found to be having a five minute seizure, with temporal and mandibular skull fractures, temporal subgaleal haematoma, extradural haematoma and acute fractures to the right orbit, maxillary sinus and zygomatic arch.

33. Surgeons performed a right decompressive craniectomy to reduce pressure, surgically fixated the facial fractures and sutured a lip laceration. When reviewed in November 2017 the victim was still experiencing seizures and remained on anticonvulsants at the time of sentence. The victim’s last physiotherapy report indicated some upper limb dexterity issues. On 17 May 2017 the defendant made admissions in a phone call with the defendant’s sister. In an interview in April 2024, the defendant said that drugs did not play a part in the offending and that the violence went “a bit too far”. In a Pre-release Report dated 19 June 2024 the defendant was recorded as saying that “it was just a punch in the face” and that the injuries were “accidental”.”

23. Both parties acknowledged that prior to 2016 the defendant’s criminal offending was predominantly property and non-serious violence offences.

24. The defendant made the following submissions that the commission of the index offence must be viewed in context:

1. It is apparent from the Agreed Facts for the index offence and the Remarks on sentence that the index offence “appears to have been relatively unplanned…[and] occurred within the custody environment and the facts indicate the offender, at one point, said he had committed the offence ‘just to fit in’.

2. Furthermore, the commission of the index offence took place in relatively close proximity to the defendant’s serious violence offence in 2016 and occurred at a time when the defendant was only 22 years old (and, in the words of the Sentencing Judge, remained “a relatively young offender”). While these matters do not detract from the seriousness of the index offence, it is submitted that they are relevant in assessing the defendant’s risk of committing another serious violence offence and serve to distinguish the index offence from a further serious violence offence committed in the community some years later following release from custody.

3. Lastly, while the index offence is admittedly very serious, it is submitted that its severity should not overwhelm the Court’s assessment of risk. Even if the Court is satisfied that the defendant will commit another offence, such a finding is insufficient to ground the making of an order. Rather, the Court can only make an order if it is satisfied that there is an “unacceptable risk” of the commission of another “serious offence”. It is submitted that the defendant’s criminal history does not support such a finding.

25. I will have regard to those considerations as part of the consideration of the overall issues raised by the parties in this preliminary hearing but I do note that there are some difficulties with the propositions advanced by the defendant. In many respects those difficulties take on a greater significance as these reasons unfold but there are some particular matters that might be mentioned at this juncture. Those considerations, which follow the number order of the defendant’s submissions, are as follows:

1. The defendant’s statement that he committed the offence “just to fit in” is a matter that contributes to the assessment of the degree of risk adversely to the defendant. Dr Parker highlighted that after the defendant's statement that he committed the offence "just to fit in", he also said, "Life is different in custody, violence is the way things are sorted" and noted that he grew up thinking that criminal behaviour was normal. In my view, committing violence because of a desire to fit in enhances the risk of violence. Lastly, Dr Parker also noted that "in at least one [Police Fact] [the defendant's] associate has unsuccessfully tried to dissuade [him] from offending - suggesting that he may be the bad influence on his associates".

2. The defendant is a relatively young man but the pattern of his offending shows escalation in the seriousness of the offending and the application of violence. There remains, as is evidence from the RAR, unresolved or untreated issues about the applicant’s tendency to violence in certain situations, particularly in the absence of him undertaking the Violent Offenders Therapeutic Program (“VOTP”). He also has particular criminogenic needs which have not been fully addressed.

3. It may be accepted that the seriousness of the index offence should not overwhelm the Court’s assessment of unacceptable risk but as I will discuss, there are particular factors operating in this case which point to why there is an unacceptable risk for the purposes of subs 5B(d) of the Act.

26. Mr Iyer’s RMR additionally outlined the defendant’s ‘behaviour is custody’ as follows:

“[The defendant] has a significant history of offences in custody since 2016, receiving 63 institutional misconduct charges related to assault, indecency, intimidation, possessing offensive weapon/instruments, stealing, possessing drug implements, disobeying directions, fighting, refuse/fail drug sample and damage/destroy property. The most recent misconduct was on 11 March 2024 for ‘Disobey Direction’, for which they were reprimanded with 28 days off Buy-Ups.

[The defendant] has been classified as Category A2 Maximum Security inmate since 2016 and their classification is next due to be reviewed on 8 May 2024. Due to their struggles to maintain good behaviour in custody, they have requested to remain as a Protection Routine Non-Association (PRNA) or SMAP inmate until release to limit their exposure to fellow inmates. [The defendant] has reported that they do not want to risk engaging in anti-social behaviour and that they believe segregation is the best option to manage their own behaviour.

[The defendant’s] overall behaviour in custody is considered to be very poor, marked by ongoing violence including involvement in multiple fights and assaults, with the most recent assault being committed against another inmate in February 2024. They are also described often as being aggressive and abusive towards CSNSW officers. Additionally, [the defendant] has been subject to segregation on four occasions, with three of these related to assaults on other inmates and the most recent was for indecency, where they were reported exposing their genitals to inmates and then a female CSNSW officer.”

27. The RAR of Dr Parker and the RMR of Mr Iyer provide key insights into the defendant’s risk of committing a further serious offence. I briefly note at this juncture that the defendant declined to be interviewed for the RAR.

28. In the RAR, the defendant was assessed under two risk assessment instruments, namely, the “Violence Risk Scare” (“VRS”) and the Violence Risk Appraisal Guide (“VRAG”).

29. The RAR recorded the following result under the VRS:

“[The defendant’s] score on the VRS, scored by myself on 23 February 2024, is classified as high risk, and is similar to a group of offenders that had a violent recidivism rate of 59.5% after 4.4 years at risk (Wong & Gordon; Wong & Gordon, 2006).”

30. The RAR recorded the following result under the VRAG:

“[The defendant’s] score on the VRAG-R, scored by myself on 22 February 2024, is equal to, or higher than the score of at least 97% of the construction sample, and places him in the ninth of nine “bins”. 76% of violent offenders with a similar score reoffended violently within five years, and 87% within twelve years.”

31. In this respect, the defendant made the following submissions:

1. No expert or tool is able to predict whether an offender will offend again in the future. Rather, such tools highlight the number of characteristics possessed by an offender that are also possessed by those who re-offend in a general and violent manner (noting that none of the tools measure the risk of committing a “serious violence offence” as defined in the Act). The future prediction based on such tools remains imprecise and the Court should exercise caution in placing significant weight on such assessments.

2. A determination that the defendant poses a “high” risk does not correspond with the test the Court must consider under the Act. Rather, the Court must determine whether the risk that is present is ’unacceptable’. Inherent in the way the Act is structured is that the legislature determined that certain amounts of risk can be considered acceptable.

32. The second submission may be readily accepted in so far as there might not be a precise and direct correlation between the application of actuarial tools and the assessment of risk under the Act.

33. However, both in that respect and in terms of the contention advanced in (1) above, the defendant’s submissions must be seen as having some real limitations. The assessment made by Dr Parker in the RAR was not formulated upon a mechanical application of the actuarial tools but by Dr Parker using those tools as a guide in the course of him applying his clinical expertise to the assessment of risk based upon the materials before him.

34. There is a further difficulty as to the defendant’s submissions because the actuarial tools employed by Dr Parker do have some relevance of application in the present context. As Dr Parker observed:

“64. While the actuarial instruments used in this report adopt a broader definition of recidivism than the “serious offence” used in the Act; the developers of the VRAG-R found that scores on its predecessor, the VRAG, were significantly correlated with “… the severity of recidivistic offences (r = .21), and the seriousness of injuries caused (r = .35)” (Harris, Rice, Quinsey, & Cormier, 2015, p. 133). They noted that serious violence was predicted by the same factors as lesser forms of violence, and that the ability of the VRAG family of instruments “… to predict violent recidivism, as assessed by ROC20 area, are unaffected by the adoption of even very extreme definitions [of recidivism] (e.g., murder committed within 6 months at risk)” (p. 316). Consequently, while the base rate of serious violence recidivism will be lower than the figures quoted earlier, groups of offenders with higher scores, on these instruments, should have higher rates of future serious offending than groups of offenders with lower scores.

…

65. The process of developing risk scenarios attempts to draw together the dynamic risk factors that contributed to the serious violence offence, and to identify circumstances and situations where risk of re-offending may increase in the future. This is based on the case formulation developed above.”

35. The RAR found the defendant had a history of problematic use of alcohol and illicit substances which was a focus of the ‘Risk scenarios’ identified in the RAR. Under the heading Risk Scenario, Dr Parker opined the following (the first paragraph appears above as [65]):

“66. [The defendant] is capable of violence when sober, but the risk appears to be heightened when he is intoxicated and/or seeking drugs. Additionally, it is possible that intoxication reduces his inhibitions against more serious violence. [The defendant] has used sharp weapons against victims for both instrumental and emotional reasons, suggesting his restraints against escalation to serious offending are fairly weak.

67. In the community, the most likely route to future violence would be a relapse into chronic substance abuse. In this scenario, he would be motivated to acquire money to purchase more drugs (which would increase the chances of instrumental violence) but would also be more likely to associate with people who will elicit feelings of anger, leading to expressive violence.”

36. Counsel for the defendant made a submission that the risk scenarios outlined in the RAR are “often the most helpful portion” of a Risk Assessment Report and that if the Court “was to make an order, the conditions of such an order are only helpful to the extent that they respond to those risk scenarios”.

37. However, Dr Parker also identified the following criminogenic needs or risk factors in relation to the defendant:

“51. Antisocial Associates: Many of [the defendant’s] offences have been committed in company with other offenders and it appears likely that their influence operates in several ways. Firstly, other offenders may actively encourage him to use drugs and commit violence. Secondly, they endorse many pro-offending attitudes, leading [the defendant] to conclude that this is ‘normal’. Finally, they will fail to exert a restraining influence when [the defendant] is contemplating offending. However, I note in at least one Police Facts his associate has unsuccessfully tried to dissuade [the defendant] from offending – suggesting that he may be the bad influence on his associates.

52. A further complicating factor is that [the defendant’s] antisocial behaviour and attitudes will drive away prosocial associates and attract antisocial associates (“birds of a feather, flock together”), perpetuating this problem.

53. Self-regulation/Impulsivity: Self-regulation refers to the ability/willingness of the person to delay gratification of an immediate desire in favour of a long-term outcome. The concept of impulsivity is closely related and references behaviours driven by automatic thinking, which is often outside conscious awareness and generally triggered by emotional reactions (Kahneman, 2011).

54. Hence, while [the defendant] may desire to refrain from crime and violence, at times of heightened emotions and/or intoxication, automatic thought patterns may over-ride this pre-existing plan. These thought patterns are explored in the following section.

55. Antisocial Attitudes: Polaschek, Calvert and Gannon (2009) identified four Implicit Theories associated with violent offending:

i. Normalisation of Violence: This is the idea that violence is a normal (acceptable) means of solving problems. [the defendant] appears to subscribe to this implicit theory. However, this implicit theory may be stronger when his emotions are heightened and/or when he is under the influence of mind-altering drugs;

ii. I am the Law: This is essentially a rejection of society’s role in setting laws – the offender decides, for himself, which laws he will follow. [the defendant] appears to subscribe to this implicit theory and expresses little regard for conventional society or authority. His refusal to undertake the VOTP is consistent with this implicit theory;

iii. Beat or be Beaten: Similar to other conceptions such as Dangerous World (Ward, 2000), this is the idea that the world is a hostile place and that survival depends upon being hyper-alert for potential threats and dealing with these severely, including pre-emptive violence. [The defendant] appears to subscribe to this theory, explaining that his violence is necessary;

iv. I get out of Control: This involves a belief that, at times, one’s actions are outside one’s own control. This can function as a permission-giving statement, especially in the presence of disinhibiting substances. [The defendant] does not appear to need this implicit theory to use violence, however it may help explain the extreme violence used in some of his offending.

56. Substance Abuse: Substance abuse appears to have paid a role in [the defendant’s] offending in the community, but his behaviour in custody suggests that this is not a necessary condition for violence to occur, although it almost certainly raises the risk.

57. Cooperation with supervision: [the defendant] has, at times, rejected the services of case management and parole staff, so it seems unlikely he will have any desire to interact with Community Corrections, other than a desire to obtain release or avoid reincarceration. Consequently, I anticipate that his interactions will be superficial, at best.”

38. In the RMR, Mr Iyer noted that although the defendant claimed to have stopped taking drugs two years ago, the defendant has not been subject to urinalysis testing throughout the current period of incarceration and has a fail/refuse drug sample misconduct charge in March 2023. Additionally, I note at this juncture, that although the defendant’s parole conditions specify, he “must not use a prohibited drug or substance, except those that have been prescribed to you” and “(6) [y]ou must comply with all reasonable directions from a community corrections officer about… (i) drug and alcohol testing”, the Agreed Facts state the defendant had one negative drug test on 1 October 2024. It is unclear on the evidence before the Court whether the defendant has been required to undergo any further drug or alcohol testing, and, more significantly, whether he has passed those tests.

39. Dr Parker also cited Mr Raymond Hudd’s (the defendant’s long-standing psychologist) diagnosis of the defendant of Chronic Complex Posttraumatic Stress Disorder (“CPTSD”) and Borderline Personality Disorder (“BPD”). Dr Parked quoted Mr Hudd’s statement that the “essential feature” of BPD “is a marked pattern of impulsivity and instability of affects, difficulty in maintaining appropriate interpersonal relationships and a negative self-image” and that “[t]he disorder is pervasive, enduring and could be seen as being an inflexible pattern of maladaptive inner experiences especially of emotions. BPD is enduring and is usually considered lifelong”.

40. The RAR report also discussed the defendant’s history in relation to “treatment”. Dr Parked stated the following in this respect:

“29. CSNSW offers a range of psychological programs designed to address violent offending and assist offenders to manage their risk in the community. The Violent Offenders Therapeutic Program (VOTP) is a prison-based residential therapy program for men who have a history of committing serious violent offences. The VOTP is offered to medium-high to high risk/needs violent offenders.

30. Despite sometimes agreeing to participate in VOTP, [the defendant] has refused all offers of entry into the program…

31. [The defendant] completed the EQUIPS Addictions program in custody on 17 September 2021 – this is a 20-session psychoeducational program that provides information about addictions, offending and how to cease. He also completed the EQUIPS Aggression Program on 4 November 2021, but was not given a certificate as he was not eligible for this program.”

41. Dr Parker also opined that “[t]he sum total of case notes and reports in the [s 25] documents would suggest that [the defendant] believes that violence is necessary to protect himself and acceptable to gain what he wants.”

42. In the final pages of the RAR, Dr Parked stated the following:

“60. It is tempting to ascribe his violence to some, or all, of the various diagnoses that he has attracted over the years. However, research suggests that the primary drivers of his offending are more likely to be his antisocial attitudes, antisocial personality pattern, and antisocial associates (Andrews & Bonta, 2010).

61. Through the trauma of his childhood, he has developed a set of attitudes and beliefs that normalise violence and criminal behaviour. This set of beliefs appear to have been internalised into habitual patterns. Walters (2002, p. 173) noted: Each person constructs his or her own reality and then goes about defending this reality. In constructing and defending our beliefs, none of us believe that our particular version of reality is inaccurate or faulty. Otherwise we would be motivated to change it.

62. Consequently, the likelihood of change in the near future is low. Additionally, even if he desires change, his attitudes and life views will likely lead him towards ineffective solutions – part of the reason so many high-risk offenders reoffend is that their strategies for desistance are ineffective and that their thinking causes them to reject effective strategies.

63. He is assessed as high risk for further violent offending on a number of actuarial instruments which have been validated for that purpose. To reduce his risk of future violence, he will need to resolve the thinking patterns that fuel this, and his substance abuse, develop a range of prosocial associates, and disassociate himself from antisocial associates.

…

70. In the event that [the defendant] is subject to an Extended Supervision Order (ESO), he would receive intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities.

71. As [the defendant] is likely to remain in prison until the expiry of his head sentence, the Court may consider imposition of a Continuing Detention Order (CDO). Such an Order would provide the opportunity for [the defendant] to complete the VOTP, but there is no guarantee he would do so. Despite this, the Court may consider whether an ESO is capable of containing the risks of further serious violence, given [the defendant’s] willingness to commit serious violence even when incarcerated.”

43. In relation to whether the defendant can be managed in the community, Mr Iyer, in the RMR, recommended a number of conditions for supervision that including:

1. A weekly schedule of movements, to enable activities to be planned and to introduce a structured routine, including prosocial activities and to identify and mitigate any risks for reoffending, as well as monitoring associations.

2. Electronic monitoring, in order to check compliance with the schedule of movements and to allow regular movement audits to be completed to identify any concerning patterns of behaviour and to implement exclusion zones for areas that are known risks for the defendant.

3. Place and travel restrictions, to enable the monitoring of movement of the defendant around public areas and minimise risk as well as accommodation conditions to enable inspection of potential premises for risks. Mr Iyer noted, in this respect, that the defendant’s accommodation instability when last in the community coincided with increased high risk behaviour.

4. A condition monitoring the defendant’s education and employment.

5. A non-association condition.

6. Conditions monitoring electronic communication and internet access.

7. A condition allowing drug and alcohol testing.

8. A condition enabling the defendant to be searched; and

9. a condition mandating ongoing mental health treatment.

Preconditions: 5B(a) – (c)

44. The statutory preconditions to making a ESO are outlined in s 5B of the Act. Putting to one side the requirements of ss 5B(d) of the Act, there was no dispute between the parties that the requirements in ss 5B(a) to (c) were met (Agreed Facts). I agree that those requirements have been satisfied as:

1. The defendant is an “offender” as he is over 18 years of age and has been sentenced to imprisonment to be served by way of full-time detention following his conviction for a serious offence (subss 4A(a) and (b) of the Act), namely, the offence of causing grievous bodily harm with intent, which is a ‘serious violence offence’ as defined in subs 5A(1)(a) of the Act (subs 5B(a), the Act).

2. The defendant is a “supervised offender” as defined by s 5B of the Act because, at the time the application for the order was made, he was, and still is, under supervision by serving a sentence of imprisonment, on parole, for a serious offence (subss 5I(2)(a)(i) and (3) of the Act) (subs 5B(b), the Act).

3. The application was made on 11 September 2024 which is within the last 9 months of the defendant’s supervision (i.e. parole), which expires on 28 February 2025 (s 6 of the Act). The application was otherwise made in accordance with s 5I of the Act (subs 5B(c), the Act).

Unacceptable Risk

45. Counsel for the defendant, Ms G Marsden, disputed that the requirement in subs 5B(d) of the Act was satisfied, namely, that the Court is satisfied “to a high degree of probability” that the defendant poses an “unacceptable risk of committing another serious offence if not kept under supervision under the Order”.

46. However, there are significant features of this matter which point strongly in favour of concluding that, on the material presently before the Court, the Court should find on that basis, the conditions under subs 5B(d) have been satisfied and there is a proper basis for the making of an ISO. Many of those factors are to be found in the summary of the State’s case (and the written submissions of counsel for the State, Mr P Aitken). The key considerations for this preliminary hearing are as follows:

1. The defendant has a history of committing violent offences which began when he was a juvenile and continued, ultimately culminating in the serious violence offence committed in a custodial setting. The defendant has continued to exhibit violence in custody throughout his incarceration.

1. The defendant has been assessed as high risk for further violent offending.

2. The defendant has entrenched substance abuse issues both in the community and in custody, heightening his risk when intoxicated and/or seeking or consuming drugs.

3. The defendant has unresolved treatment needs, and the criminogenic factors have not been sufficiently addressed to give any confidence regarding his capacity to successfully reintegrate into the community without supervision.

4. The defendant is institutionalised and reintegration into the community will undeniably be challenging; and

5. the defendant has several mental health issues – such as PTSD – requiring monitoring of his needs and medication as a deterioration in his mental state may impact his ability to engage in treatment and case management. The potential diagnosis of BPD is also of concern in this respect.

47. Some additional observations may be made arising from Dr Parker’s RAR which I mention with avoidance as far as possible to the earlier summary of Dr Parker’s report. These observations are as follows:

1. The defendant did not make himself available for interview with Dr Parker. This cannot be a factor, in and of itself, adverse to the defendant but it does mean that submissions made by counsel for the defendant about the state of improvement of the defendant during the parole period must be viewed with circumspection. Had the defendant made himself available for psychological assessment by Dr Parker there may have been a more concrete basis to make an assessment about his motives and attitudes such as to provide a firmer underpinning as to his improved performance under parole (and a calibration of his performance against known risk factors). That takes on particular significance when the following aspects of Dr Parker’s report are taken into account.

2. Dr Parker made a Supplementary Report in which he observed the defendant’s behaviour or attitude “appears to be basically unchanged”. Furthermore, Dr Parker observed that whilst the defendant had been compliant with the conditions in reporting as required, the defendant had been reluctant to share information from his psychological sessions with his supervising officer. This resulted in Dr Parker concluding that his view had not changed from his earlier report particularly based upon the defendant’s relatively brief period in custody and his guarded attitude towards his supervising authorities. Dr Parker referred to Mr Hudd’s psychological report, which was in evidence before the Court, in which the psychologist had diagnosed the defendant with BPD which was productive of a “marked pattern of impulsivity and instability of affects” (Mr Hudd is still treating the defendant).

3. As mentioned earlier, the defendant’s criminal offending had escalated in both severity and frequency. He used violence both for instrumental reasons and also for directing his anger at other persons.

4. The primary driver for the offending was more likely to be the defendant’s anti-social attitudes, anti-social personality pattern and anti-social associates.

5. The defendant had developed a set of attitudes and beliefs that normalise violence and criminal behaviour. The likelihood of change in the near future is low, even if the defendant desired change, because his attitudes and life views will lead him towards ineffective solutions. His strategies for “desistance” are likely to be ineffective.

6. The result was that, based on actuarial instruments and Dr Parker’s clinical view, the defendant had a high risk of further violent offending.

7. The risk even existed if the defendant was sober but was heightened when he was intoxicated or seeking drugs which was the most likely route to further violence.

8. The defendants criminal offending has escalated in both severity and frequency with violence being used during the offending both for instrumental reasons but also in a misdirected use of anger.

48. The principal contention advanced by the defendant to meet those considerations and resist the making of an ISO was that the defendant has spent time in the community under supervision without relevant incident, attending upon his psychologist, Mr Hudd, and advising of change such as accommodation changes. The period that the defendant has presently been on parole is 5 months 20 days. That parole expires on 28 February 2025 and no supervisory arrangements will be in place after that date.

49. The fundamental problems with that submission are:

1. When understood in terms of the defendant’s primary position in these proceedings, there will be no supervision of the defendant after 28 February 2025. That proposition is untenable if the opinions of Dr Parker are to be accepted, as I do at this preliminary stage.

2. The period under parole is relatively short. It was said that the defendant’s performance is demonstrative of some improvements in his motivations and attitudes. So much may be accepted. However, that consideration must be diminished in the light of him not having participated in any interview with Dr Parker where his progress may have been better assessed, and in circumstances where Dr Parker identified that the defendant had not really developed coping skills, at least in so far as they properly addressed his criminogenic needs. Of real significance in this respect, was that the defendant had refused to undertake a VOTP.

3. There are powerful reasons why the Court would be concerned at the potential for further serious violence offending notwithstanding that a favourable view may be expressed about the defendant’s present progress as discussed above (see par [46] – [47]).

50. The balancing of those considerations for and against the making of an ISO fall in favour of the Court concluding that there is a proper basis to make an ESO and accordingly the interlocutory orders for the making of an ISO should be made. That proposition, is in my view, put beyond reasonable doubt when regard is had to the principle that, in considering the making of orders at a preliminary hearing the court should give emphasis to the objects of the Act to provide for community safety: Attorney General for the State of NSW v Winters [2007] NSWSC 611 (Bell J (as his Honour then was) at [7]).

51. In the light of those conclusions, the Court must make the orders sought by the State under s 7(4) of the Act.

CONDITIONS: THE DEFENDANT’S PRIMARY POSITION

52. If the Court decided to impose an ISO on the defendant, as it has, the defendant’s primary position as to the applicable principles was that the conditions attached to the ISO should replicate the defendant’s present parole conditions. In this respect, the defendant made the following submissions:    

1. Through his compliance, it is clear that the defendant understands his Parole Order, the manner of its enforcement and his responsibilities pursuant to those conditions. Unnecessarily changing those conditions for a short period risks the defendant inadvertently breaching his Parole Order.

2. The conditions sought by the State are far more onerous and restrictive than the current Parole Order. A regression in the defendant’s freedoms, without any connection to increased risk, is unfairly arbitrary and runs the risk of discouraging the defendant from future positive engagement with any order. If the defendant was to disengage with his own rehabilitation, it does not assist in meeting the object of the Act contained in s 3 vis a vis rehabilitation.

3. There is precedent for the imposition of existing conditions of parole rather than the standard suite of conditions proposed by the State. In State of NSW v CD (Preliminary) [2021] NSWSC 1396 (“CD”), Lonergan J adopted an offender’s existing parole conditions as the conditions of the offender’s ISO and summarised the reasons for that approach as follows (at [6]):

“6…first, the current parole conditions directly and adequately address any risk to the community presented by the defendant. Secondly, and significantly, they have a simplicity and clarity which the constellation of conditions proposed by the plaintiff do not. Thirdly, they are not overly paternalistic or inflexibly prescriptive. Fourthly, they are able to be understood and followed and they seem to have been functioning adequately over the last two weeks. Fifthly and importantly, they do not tend to unnecessarily criminalise uncontroversial and irrelevant elements of potential behaviour by the defendant. Sixthly, they tend to facilitate the necessary pursuit of the objects of the Act, the primary object of course being protection of the community, but the secondary object of rehabilitation of the offender which in turn has a role in increasing and improving the potential safety of the community.”

4. The same reasons apply in the present case. Such an approach has particular advantages at the preliminary hearing stage in preventing the defendant from being confronted by multiple sets of conditions in different terms: see State of New South Wales v Devries (Preliminary) [2021] NSWSC 949 at [13]-[14] (“Devries”).

53. I am not persuaded by these submissions.

54. In relation to the decision of Lonergan J in CD, I note that each matter of course turns on its own facts and circumstances and, in that case, her Honour concluded that the parole conditions were adequate to address the particular identified risks in that matter.

55. The approach taken by R A Hulme J in Devries is distinguishable in circumstances where the consideration of continuity was raised due to Mr Devries’ “very limited intellectual capacity in relation to understanding and remembering written and oral communications” (Devries at [9]). In this case there was no evidence before the Court that the defendant is incapable of understanding his current parole conditions. Nor would he be incapable of understanding a new suite of conditions as a result of these proceedings.

56. In this case, the fact that the defendant has managed to comply with the current conditions of parole supervision is a matter to his credit and provides some hope for progress. However, the parole period has been relatively short and cannot, of itself, provide a sufficient basis for concluding that the relevant risk is thereby addressed by those conditions, particularly when assessed in the light of the RAR. In particular there is an uncertainty as to his current attitudes towards violence, how he deals with risky situations and how he is coping with opiate replacement therapy which he commenced in September 2024.

57. In State ofNew South Wales v Loto [2020] NSWSC 222, Campbell J at [65] accepted that supervision under an ESO, compared with a parole order, was a “more rigorous regime” and that supervision under parole would be much less intensive. That position applies here and is of particular significance given the risk factors found earlier in this judgment.

58. In State of New South Wales v Lee [2017] NSWSC 1766 (“Lee”), Schmidt J considered the difference between the parole and high-risk offender regimes as follows (at [81]-[82]):

“81. In determining whether a particular condition should be imposed, even on an application such as this for an interim order, the Court must bear in mind the “paramount consideration” specified in s 9(2), namely, “the safety of the community”.

82. It follows that on such an application, even if a particular condition involves “an increase” upon the conditions of an offender’s conditions of parole, if the Court concludes, on the evidence, that the condition is appropriate, it may be imposed.”

59. Schmidt J also stated the following in Lee:

“86. In my view, specific conditions as to particular matters can be a useful way by which different aspects of the risks which an offender poses can be addressed. Not only do they make clear to the offender what conditions are imposed upon him by the order, they also make clear to those supervising him, both the extent and limits of the broad discretion which condition three would otherwise give them, as to those matters. They also make clear to any other reader of the Court’s order, a police officer for example, the conditions which have been imposed as to identified matters.”

60. Considering I have found that there is an unacceptable risk of the defendant committing a further serious offence if not kept under supervision, addressing that unacceptable risk should be the foundation for the structuring of the conditions to address the risks the subject of these findings, rather than simply relying on the existing parole conditions even if there has been, over the last five months, adherence to them.

61. In the result, it is my view that the defendant’s parole conditions are not sufficient to mitigate the risk of the commission of a further serious offence and that the conditions imposed by the ISO need to be adjusted or expanded to address the risks found in this judgment.

62. I turn then to the conditions sought by the State as appropriate to accompany the ISO. The defendant made submissions as to the appropriate conditions as an alternative to his primary submission. The defendant’s position in that final respect involved some modification for the purpose of the preliminary hearing such that many of the conditions proposed by the State, whether in a primary or amended form were agreed.

THE BALANCE OF ISSUES CONCERNING CONDITIONS

Principles

63. In considering the imposition of conditions, I note the following principles from State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 set out by Hoeben CJ at CL (as his Honour then was) at [44]:

“[44] i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83].

ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68].

iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].

v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38].

vi) Conditions must not be unjustifiably onerous or punitive, “[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

vii) Conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131].”

64. The principles applicable to the imposition of conditions were set out in State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 at [119]-[128]. I adopt those principles for the purposes of this judgment which are as follows:

“119. The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

120. Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).

121. The Court of Appeal further held at [53]-[54]:

[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

122. During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 (“Sturgeon”) at [99]:

[99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:

(1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];

(2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];

(3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];

(4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];

(5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];

(6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];

(7) a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].

123. Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed “there must be some sort of identification of the unacceptable risk and how that condition goes to it”.

124. In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.

125. In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).

126. His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):

[59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.

[Original emphasis.]

127. With respect, I accept Button J’s statement of principles in Farringdon.

128. If counsel for the defendant was suggesting that in light of decisions in Sturgeon and Wilde there must necessarily be a specific and direct connection between a condition and the identified unacceptable risk, such an approach would be erroneous because on careful read of the authorities the Court does not require a direct connection. In Sturgeon, Garling J observed that it will “ordinarily… be necessary” for a condition imposed to be “related to the mitigation of identified unacceptable risk”. Similarly, in Farringdon, Button J observed an “indirect” connection to be sufficient. To repeat Wilde, the Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which formed the basis for the ESO.”

Conditions in dispute

65. After the close of the preliminary hearing, the Court received a final revised schedule of conditions on 5 February 2024 which set out what conditions were and were not agreed. There remained 10 conditions in dispute which I will now address seriatim under various headings corresponding to those found in the schedule.

66. The State placed reliance on the proposed conditions of supervision recommended by the RMR to inform and support the conditions ultimately sought. However, the final revised schedule of conditions contained submissions, which were supplemented by oral submissions, from the parties regarding the imposition of disputed conditions.

Accommodation

Condition 13

67. The final form of condition 13 proposed by the State was as follows:

You must not spend the night anywhere other than your approved address or any alternative approved addresses unless you notify the DSO of your stay at a different location, including the address and who you stayed with, within 48-hours afterwards.

68. To support the imposition of such a condition the State submitted the following:

1. The condition facilitates monitoring of the defendant’s intended movements and advance notice so that any risk assessments can be conducted prior to residing at another address/location.

2. The purpose of retrospective notifications is that without electronic monitoring and schedule of movements, it would still allow the ESO Team to know who the defendant is affiliating with, where he is staying and generally his movements. If necessary, the ESO Team could then assess further if there are signs of an escalation of risk and look further into it. Retrospective notification requirements are intended to be less restrictive than prior notifications.

3. This condition would permit the ESO team to know who the defendant is affiliating with so it picks up that issue of anti‑social associates. It also, by inference, picks up the notion that the defendant could potentially be associating with people who are regular drug users which in turn exposes him to temptation.

69. The defendant opposed condition 13 on the basis of it being overly restrictive and not sufficiently connected to the mitigation of the defendant's risk consistently with the risk scenarios identified by Dr Parker in the RAR. In the defendant’s submission, the greatest risk for this defendant is a return to substance use, and it is unclear what work these conditions (13 to 15) have to do in that respect in circumstances where there are a raft of conditions in place that are agreed to which address abstinence from drugs and alcohol, for example submitting to drugs and alcohol testing as required, and truthfully answering questions in respect to movements and drug and alcohol use.

Conclusion

70. In my view, condition 13, in its final form proposed by the State, is not overly restrictive and is commensurate with the existing agreed conditions for accommodation. I agree with the State’s submission that this condition will assist in monitoring who the defendant is affiliating with in order to best manage contact with anti-social associates and people who are regular drugs users.

71. The defendant submitted this condition was not sufficiently connected to the mitigation of the defendant’s risk, however, in this respect I note my decision in Boney (at [128]) that confirmed the Court does not require a direct connection. The relevant connection identified in the State’s submission is sufficient.

72. In the result, I make condition 13 as proposed by the State.

Conditions 14 and 15

73. The final form of condition 14 proposed by the State was as follows:

If you are living alone, you must not, without the prior approval of a DSO, permit any person to (unless they are a family member):

a) enter or remain at your approved address; or

b) stay overnight at your approved address.

74. To support the imposition of condition 14, the State submitted the following:

1. This condition facilitates monitoring of the defendant’s intended movements and his visitors so that risk assessments can be conducted prior. This condition is important in managing relations with anti-social associates and regular drug users.

2. The inclusion acknowledges the importance of family connection as a First Nations Person.

75. The defendant opposed condition 14 on the same basis as condition 13.

76. The final form of condition 15 proposed by the State was as follows:

If you are living with any co-residents, you must not invite any person to enter and remain, or to stay overnight, at your approved address without the prior approval of your DSO. If any of your co-residents invite or permit someone (‘the visitor’) to enter, remain or stay overnight at the approved address, you must inform your DSO as soon as possible of the identity of the visitor, the purpose of the visit (if known) and the nature of the relationship between you and the visitor (if any). You must follow all reasonable directions from your DSO in relation to the visitor.

77. To support the imposition of such a condition the State submitted the following:

1. This condition facilitates monitoring of who can stay overnight with the defendant with appropriate management and ensures the defendant’s domestic environment can be closely monitored.

2. This condition is trying to have a handle on which people might be staying over at the defendant's current accommodation, which the State understands is a supported accommodation where other co‑residents also live.

3. This condition is trying to engage in risk avoidance by having the defendant inform the DSO of people who may be staying over at the invitation of co‑residents. That might then permit DSO’s to try and formulate some kind of risk‑management strategy to deal with that situation.

78. The defendant opposed condition 15 on the same basis as condition 13.

Conclusion: Conditions 14 and 15

79. I accept that conditions 14 and 15 are somewhat restrictive in nature but they are overall consistent with the suite of measures designed to manage risk by the supervision of the defendant’s accommodation arrangements. It may be appropriate that these conditions be reviewed after independent expert opinion becomes available at the final hearing of the application for an ESO.

80. Furthermore, although a direct link between a condition and the mitigation of risk is not required (Boney, [128]), I note the Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 finding (at [53]) that the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

81. In line with the objects of the Act and the authorities, Condition 14 and 15 prioritise community safety. I also note that the restrictive component of the conditions is mitigated by agreed condition 16 which states:

For the purposes of conditions 14, 15 and this condition, the DSO may give pre-approval from time to time of a list of ‘approved visitors’ who may enter, remain or stay overnight at your approved address without the need for you to notify your DSO upon each occasion.

82. In all the circumstances, I make conditions 14 and 15 in the final terms proposed by the State.

Finance

Condition 21

83. The final form of condition 21 proposed by the State was as follows:

You must provide any information relating to your financial affairs, including income and expenditure, if directed by a DSO.

84. To support the imposition of such a condition the State submitted the following:

1. This condition permits monitoring of the defendant’s financial affairs that may give rise to high-risk settings.

2. It is an essential tool for risk assessment and risk escalation, especially without electronic monitoring and a schedule of movements. It allows the ESO Team to assess if the defendant is acquiring money outside the bounds of his normal income, being a likely route to drugs and alcohol and further violence.

3. Secondly, the condition enables the supervising individuals to see if there is unexplained expenditure that might well relate to drug purchases.

4. This condition is additional to other conditions prohibiting using drugs and requiring drug testing. The conditions are intended to work in a complimentary fashion.

85. The defendant opposed condition 21 on the basis that it is an overly restrictive condition. The defendant submitted that there are already conditions in place, which are agreed to, which sufficiently address the risk scenarios identified by the RAR, the primary concern being the defendant’s return to drugs and alcohol such as requiring abstinence, testing and truthfully answering questions.

86. The defendant submitted that a condition extending to all information about financial affairs is unnecessarily invasive and considering the OIMS material dealing with the defendant's time on parole, there are no apparent concerns with any expenditure. The defendant is not a person who is in possession of large quantities of money for which the source is unknown. He is in receipt of Centrelink payments, and it appears he completes a day's work for cash in hand from a friend who is assisting him to learn concreting work.

Conclusion

87. The defendant’s position, in this respect, is predicated upon there already being conditions in place to better address the risks associated with drug and alcohol consumption and as such the imposition of this condition is overly restrictive. However, in my view, and in the light of Dr Parker’s report, there is plainly a sufficient connection to warrant the imposition of the condition.

88. This condition will facilitate supervision and oversight of the defendant in both assessing the acquisition of extra funds that may facilitate the use of drugs as well as unexplained expenditure that may indicate drug use.

89. In the result, I make condition 21 in the final terms proposed by the State.

Non-association

Condition 27

90. The final form of condition 27 proposed by the State was as follows:

Without limiting condition 26, you must not associate with any person:

a) who you know is consuming or under the influence of illegal drugs; or

b) held in custody without prior approval of a DSO.

91. To support the imposition of such a condition the State submitted the following:

1. This condition prohibits the defendant’s association with specific individuals that may increase his risk of reoffending.

2. The concern about the defendant associating with people in custody is that they may be anti‑social associates. This is especially so when consideration is given to the circumstances of the index offence that the defendant, on his own’s admission, was acting on a sort of desire to please others.

92. The defendant opposed condition 27 on the basis that it is an overly restrictive condition. Counsel for the defendant submitted that precluding the defendant from associating with persons who he knows are consuming, or are under the influence of, drugs or are held in custody are not sufficiently connected to the mitigation of any risk and there are other conditions that sufficiently address his own drug use.

93. Counsel for the defendant also submitted, in relation to the requirement not to associate with a person who is in custody, that it is not clear how not associating with someone who is currently in custody is directed to an increase in the risk of impulsive violence in circumstances where the defendant is in the community.

Conclusion

94. I do not accept the submission of the defendant that condition 27 is overly restrictive. This is particularly so when condition 27 is considered in the light of condition 26 which provides a broad power for a DSO to restrict the defendant’s association with “any person”.

95. Condition 27 provides better guidance to a DSO as to the potential subject matter of condition 26.

96. I make condition 27 in terms of the final condition proposed by the State.

Condition 28

97. The final form of condition 28 proposed by the State was as follows:

You must agree to a DSO disclosing your criminal history to another person, if the DSO considers it reasonable for disclosure to be made to the relevant individual based on your risk factors. Before any disclosure is made, you will first be given the opportunity to make the disclosure yourself within a timeframe as identified by a DSO, and allowing a DSO to confirm the disclosure with the person.

98. To support the imposition of such a condition the State submitted the following:

1. This condition permits a DSO to monitor whether any person (such as a prospective employer or other persons) are appropriately informed of the defendant’s criminal history.

2. Where a person who is dealing with the defendant may be perceived by the DSO as vulnerable, that individual can be informed of the defendant’s criminal history where the DSO considers it reasonable to be made based on the risk factors of the defendant. For example, if the defendant were to be in a relationship that may have the potential to become volatile, this condition enables the other person in that relationship to at least be aware of his background and offer some form of protection. That person can then make their own decisions about whether or not the relationship should persist.

99. The defendant opposed condition 28 on the basis that it is not sufficiently connected to mitigation of the defendant’s risk. In this respect, the defendant submitted that in circumstances where the risk is of impulsive and relatively spontaneous violence, it is unclear how requiring the defendant to disclose his criminal history to others has any connection to the mitigation of that risk. If prior to an act of spontaneous violence, the defendant is required to disclose that he has a criminal history, it is unclear how a person is supposed to protect themselves to such a disclosure.

Conclusion

100. In my view, condition 28 is not sufficiently connected to the mitigation of the defendant’s risk in line with the defendant’s criminogenic factor of impulsive and spontaneous violence. I am also concerned that the imposition of such a condition might detrimentally affect the present rehabilitation of the defendant.

101. In the result, I do not make condition 28.

Access to the internet and other electronic communication

Condition 32

102. The final form of condition 32 proposed by the State was as follows:

You must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices including, but not limited to, approval of devices and applications used, method of communication, access to the internet, user and internet provider information, allowing remote access and restrictions on deleting information.

103. To support the imposition of such a condition the State submitted the following:

1. This condition permits a DSO to monitor the defendant’s digital and online activity to ensure they do not pose risks to the community. It is important in the absence of electronic monitoring or a schedule of movements.

2. This condition relates to drug use and purchase and contact with antisocial peers.

104. The defendant submitted that there is no history or suggestion of current concerns as to this defendant's use of electronic communications or the internet. Hence it is not clear how monitoring his communications and internet use might mitigate the risks identified. This is not a person who is an online sex offender but rather the defendant is a person who has committed relatively spontaneous acts of violence, including two acts of serious violence.

Conclusion

105. In my view, condition 32 is not sufficiently connected to the mitigation of risk and the defendant’s risk profile.

106. In the RAR, Dr Parker identifies criminogenic factors of the defendant such as impulsivity, substance abuse and anti-social peers and associates, however, makes no reference to the use of the internet or electronic communication in enhancing those risks.

107. Additionally, it is not clear how the absence of electronic monitoring and requiring a schedule of movements represents an additional basis for the imposition of a condition of this kind.

108. In all the circumstances, I do not make condition 32.

Search and seizure

Condition 34

109. The final form of condition 34 proposed by the State was as follows:

You must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this order.

110. To support the imposition of such a condition the State submitted the following:

1. This condition restricts the destroying of any such items that are subject to a search or seizure. This condition is important in the absence of electronic monitoring or a schedule of movements.

2. The matters of primary concern relating to this condition are drug possession and weapon possession in terms of preventing the destruction of anything that may relate to matters of concern that inform risk.

111. The defendant opposed condition 34 on the basis that it is an overly restrictive condition.

112. The defendant submitted that unconstrained search and seizure are far greater than the powers usually held by law enforcement agencies and in light of the defendant's criminal history and the risk scenarios identified, this condition is unnecessary. The powers already available to law enforcement agencies to search and seize on a reasonable suspicion are sufficient to mitigate any risks identified as and when they arise for this defendant.

Conclusion

113. In my view, condition 34 is entirely consistent with the agreed measure in condition 33 and is not overly restrictive. I also note in this respect Dr Parker's mention of the defendant's past use of "sharp weapons against victims for both instrumental and emotional reasons, suggesting his restraints against escalation to serious offending are fairly weak" which bolsters support for the imposition of condition 34.

113. In the result, I make condition 34 in the final terms proposed by the State.

Personal details and appearance

Conditions 37 and 38

115. The final form of condition 37 proposed by the State was as follows:

You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance.

116. To support the imposition of such a condition the State submitted the following:

1. This condition facilitates general monitoring of the defendant and the capacity to easily identify the defendant in the community.

2. This condition is required for the practical operation of the ESO and compliance, noting there will usually be multiple supervising officers. This condition is used to identify whose door they are knocking on and talking to the correct person. The DSO needs to ensure they are discussing the order with the correct person.

3. This condition does not place a particularly onerous restriction on the defendant. It is a standard condition that facilitates the multiplicity of persons who may be dealing with the defendant in the context of an ISO to have up‑to‑date and appropriate information as to his appearance.

117. The defendant opposed condition 37 on the basis that the condition is not sufficiently connected to the mitigation of the defendant’s risk.

118. The defendant submitted that there are a large body of photographs of the defendant, including every time he interacts in police custody and every time he has been in Community Corrections custody, which are already available to Community Corrections and police such that it is unnecessary to require additional photographs. There is no evidence before the Court to suggest that the defendant has significantly changed his appearance or has any intention to do so.

119. The final form of condition 38 proposed by the State was as follows:

If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details.

120. To support the imposition of such a condition the State relied on the same submission in relation to condition 37.

121. Similarly, the defendant opposed condition 38 on the same basis as condition 37 and added that there is no information available to the Court to suggest that the defendant has any intention of updating his name or identification. Further, the defendant submitted that there is no need for specific conditions dealing with that unlikely scenario, and if the scenario arises, the general supervision conditions in 1, 2 and 3, which are not opposed, would be more than adequate in addressing any of those scenarios should they arise.

Conclusion: Conditions 37 and 38

122. In my view, condition 37 and 38 are sufficiently connected to the mitigation of a risk of the commission of a further serious offence at a practical level.

123. Conditions 37 and 38 will enable different DSO’s to easily identify the defendant and ensure compliance with the ISO. I agree with the State’s submissions that these conditions are not particularly onerous and will enhance effective supervision of the defendant under the ISO.

124. In the result, I make conditions 37 and 38 in the terms proposed by the State.

CONCLUSION

125. The Court has determined to grant the interlocutory and interim relief sought by the State by the making of Orders (1) and (2) of the Summons, save that the conditions accompanying the ISO shall reflect the agreed conditions and the resolution of disputed conditions in this judgement (see Order 2(c) of the Summons).

ORDERS AND DIRECTIONS

126. The Court directs that the State bring in Short Minutes of Order reflecting this decision by no later than 4:00pm today, Monday 17 February 2025.

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Endnotes

Decision last updated: 17 February 2025