State of New South Wales v Haines (Final)

[2023] NSWSC 1202

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Haines (Final) [2023] NSWSC 1202

Hearing dates:

16 August 2023

Date of orders:

16 August 2023

Decision date:

13 October 2023

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

(1) The order made by Dhanji J that the defendant be referred to in these proceedings by a pseudonym is varied to the extent that it shall not apply to this judgment and its publication and dissemination.

(2) Order pursuant to sections 5B and 9(1)(b) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order from 13 October 2023 for period of 3 years.

(3) Order pursuant to sections 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant comply with the conditions set out in the schedule to the reasons for decision for the duration of order (2).

Catchwords:

HIGH RISK OFFENDER – application for extended supervision order pursuant to s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) – defendant 58 year old woman with a moderate intellectual disability and schizo-affective disorder – history of drug use and violent offending including murder – behaviour whilst incarcerated and on conditional liberty hostile and unpredictable – unacceptable risk of committing further serious violence offences

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

R v Brenda Haines [2015] NSWSC 390

Haines v R [2016] NSWCCA 90

Category:

Principal judgment

Parties:

State of New South Eales (Plaintiff)
Brenda Haines (Defendant)

Representation:

Counsel:
I Fraser (Plaintiff)
J Wilcox (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Manio Solicitors (Defendant)

File Number(s):

2023/132860

JUDGMENT

1. The plaintiff’s summons claiming an extended supervision order (ESO) in respect of the defendant pursuant to s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) was filed on 24 April 2023. An order of 5 years duration is sought with numerous conditions to be attached pursuant to s 11. At the final hearing of the summons the defendant’s counsel did not consent to an ESO but opposition was not supported by any arguments of significant force. Many of the proposed conditions were opposed. The evidence shows that the defendant herself has expressed to Corrective Services officers and others her vehement opposition to an ESO. As described later in these reasons, material events occurred after the final hearing, in respect of which leave was granted to the defendant to adduce further evidence. Both parties were permitted to make additional submissions. In light of those developments the defendant’s counsel ultimately advanced more substantial submissions against the making of an ESO. He did not limit the defendant’s arguments to issues concerning appropriate conditions.

2. When the summons was filed the defendant was serving a sentence of imprisonment for an offence of wounding with intent to cause grievous bodily harm, contrary to s 33(1) of the Crimes Act 1900 (NSW). That offence was committed on 10 July 2016. The defendant was arrested four days later and remanded in custody, where she remained until she pleaded guilty to the charge 17 months later, on the date fixed for commencement of her trial. Her Honour Judge Baly SC sentenced the defendant to a term of 7 years imprisonment commencing 14 July 2016 and expiring on 13 July 2023. A non-parole period of 3 years and 6 months was fixed but parole was not granted until May 2023, resulting in the defendant’s release on 5 June 2023 only five weeks short of the expiry of her full term.

3. That defendant was a “supervised offender” within the meaning of s 5I(2) of the Act when the plaintiff’s summons was filed. She continues to be a “supervised offender” because there is in force against her an interim supervision order made pursuant to s 10A by Dhanji J on 15 June 2023: State of New South Wales v Tina Lee (a pseudonym) (Preliminary) [2023] NSWSC 693. The interim order has been extended pursuant to s 10C and is due to expire on 14 October 2023.

4. In the above circumstances the preconditions for making an extended supervision order specified in s 5B(a)-(c) are satisfied. The issue upon which the plaintiff’s application turns is, therefore, whether the following requirement, specified in s 5B(d), is fulfilled:

(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.

5. For the reasons that follow I am well satisfied, to the requisite standard, that the risk with respect to the defendant is unacceptable and that an order must be made in the interests of preserving community safety. The determination of appropriate conditions to be attached to the order is a more difficult question, to which I will return later in this judgment.

Pseudonym order

6. On the application of the defendant Dhanji J made an order during the hearing of the preliminary application on 15 June 2023 that she be referred to in the proceedings by a pseudonym. The order was made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), as a means of achieving compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The making of the order was important having regard to historical material concerning the defendant that was tendered in evidence at the preliminary hearing. As I do not intend to refer to such material in this judgment it is not necessary that the pseudonym should apply to the reasons and orders now published. Further, as the defendant’s past criminal offences that give rise to the present application were very serious and as the risk that she poses to the safety of the community is significant, it is in my view important in the interests of open justice and efficacy of the Court’s orders that this judgment should be published under the name by which defendant has generally been known. Accordingly, I will vary Dhanji J’s pseudonym order so that it is not applicable to this judgment.

Defendant’s personal background

7. The defendant is a woman of mixed Aboriginal and Indian descent, now aged about 58 years. She was born in October 1965 at Moree and up to the age of about six years she lived there with her mother and siblings on an Aboriginal settlement. The offender’s mother suffered the effects of traumatic, violent childhood experiences. She abused alcohol. She was 15 when her first child was born. The defendant was the sixth of her nine children. The defendant’s mother was not able to provide adequate, stable care for the children. In early years the defendant was cared for by older siblings. At the age of about four or five years the defendant suffered the loss of an eye in an accident, which contributed to self-consciousness and antisocial behavioural problems thereafter.

8. In about the early 1970s, when the defendant was approximately six years old, her parents separated and her mother and some of the children moved to Sydney. Her mother was often intoxicated with alcohol, there was almost no furniture in their home in Sydney and never adequate food. The children were neglected and left to their own devices. Over the ensuing years the defendant was in foster care but at times she left her foster parents and ran away to her mother or to live on the streets. She was made a ward of the State from about age 14. The defendant did not regularly attend school. She was disruptive when she did attend and had difficulty learning. Her intellectual capacity has subsequently been assessed in the lowest 1% for her age group. She left school after Year 7 when she was about 14, in approximately 1980.

9. Reports prepared by school and welfare authorities in the late 1970s and early 1980s describe the defendant as emotionally disturbed, violent towards her siblings, subject to markedly fluctuating moods, defiant, unstable and disruptive. From the early 1980s she spent time in both Moree and Sydney. The defendant gave birth to a son in 1985, at the age of about 18. The defendant has never had any employment except in prison.

Substance abuse

10. Dr Yolisha Singh, forensic psychiatrist, prepared one of the two expert reports directed by Dhanji J at the preliminary hearing. During a consultation with the defendant over an hour and 45 minutes on 10 July 2023 Dr Singh found it difficult to obtain from her a reliable history of her drug abuse. She commenced using cannabis in adolescence. Since early adulthood she has abused both illicit and prescription medications, including opioids, amphetamines, benzodiazepines and buprenorphine. Her drug misuse is recorded in historical medical records, particularly psychiatric assessments in which, from time to time, psychotic symptoms have been attributed to drug inducement. It is not possible to derive from the evidence an accurate timeline of types of drugs used, or frequency of use, or quantities consumed or injected.

11. For present purposes it is sufficient to note that the defendant’s misuse of a variety of psychoactive drugs was persistent from early adulthood until her arrest on a murder charge in March 2001. Thereafter, during the past 22 years of incarceration it has not been possible for authorities to keep the defendant entirely free of illegal drugs and a number of institutional infringements have concerned her possession, use and trafficking of illicit substances in prison. Drug abuse has at times significantly contributed to the defendant’s mental disorders and it has confounded both her diagnosis and treatment.

Criminal history and emergence of mental disorders

From early adulthood to age 35

12. In 1989, 1990 and between 1995 and 2000 the defendant committed a number of offences of violence such as, common assaults, assaults occasioning actual bodily harm, malicious wounding, assaults on police officers and resisting arrest. Judging by the manner in which these matters were dealt with by the courts, none of them can have been very serious. Some resulted in short terms of imprisonment. Some of the offences were associated with property crimes, including larcenies, robberies and entering enclosed lands with intent. From 1997 onwards the defendant was on several occasions convicted of carrying a cutting weapon and some of those offences were also connected with property crimes and/or offences of resisting arrest and attempting to prevent apprehension. Around the year 2000 (age 34-35) the defendant also incurred some convictions for drug offences, such as possession for personal use and self-administration.

Murder in March 2001; psychiatric treatment in custody up to March 2016

13. On 3 March 2001, at age 35, the defendant murdered a shopkeeper in Redfern, Mr Haibo Wang. She approached him in his convenience store with a knife and inflicted a stab wound to the chest that penetrated his heart and caused death within about an hour. The defendant was arrested the same day. She was initially found unfit to be tried. A special hearing was conducted in June 2004 and a jury found that the offence of murder had been committed. It was ordered that the defendant be held in custody as directed by the Mental Health Review Tribunal, with a limiting term of 17 years.

14. After her arrest the defendant was initially detained and treated at Mulawa Correctional Facility; then from July 2009 to 2011 in the forensic Hospital at Long Bay where it was concluded that she suffered from a schizoaffective disorder, alcohol abuse, polysubstance dependence and an antisocial personality disorder. From 2011 to April/May 2014 the defendant was housed and treated in the Bunya Unit at Cumberland Hospital as an involuntary patient. She received antipsychotic, antidepressant and mood stabilising medication throughout that period. By April 2013 defendant’s mental condition had improved to the point where she was found fit to be tried. In December 2013 she was granted bail, with a condition that she remain in the Bunya Unit. By July 2014 her treating psychiatrist, Dr Giuffrida, considered that she no longer fulfilled the statutory criteria for a mentally ill person so that she could not continue to be detained involuntarily. In order to comply with her bail conditions, on 9 July 2014 the defendant signed a personal application for voluntary admission to the Bunya Unit.

15. Up until April 2014 the defendant had been treated with the antipsychotic drug Clozapine. From that time Dr Giuffrida reduced the dose and found “no increase in irritability and she remained calm and cooperative and fully engaged in treatment”. The doctor did not observe any “breakthrough symptoms” of a psychotic nature or continuation of any “positive symptoms of any kind associated with schizophrenia”. He found that her continuing cognitive, motivational and affective impairments were “already well explained in terms of her developmental disability rather than underlying mental illness, such as schizophrenia”. This improvement led to the defendant being discharged from the Bunya Unit in late 2014 and she returned to prison on remand for the murder. Psychiatrists who assessed her within the correctional system did not find any manifestation of a chronic psychotic illness such as schizophrenia.

16. In November 2014 the defendant was mentally fit to enter her plea of guilty and a sentencing hearing took place before R S Hulme J. On 16 April 2015 his Honour passed a sentence of 17 years imprisonment with a non-parole period of 12 years and 9 months: R v Brenda Haines [2015] NSWSC 390. On 14 April 2016 the Court of Criminal Appeal held that R S Hulme J had not allowed a sufficient discount for the defendant’s guilty plea and reduced the sentence to 15 years with a non-parole period of 11 years and 3 months: Haines v R [2016] NSWCCA 90. The full term had expired on 2 March 2016 so the Court ordered her release forthwith.

Release in 2016

17. The immediate release of the defendant pursuant to the order of the Court of Criminal Appeal, without any period of supervised parole or other regime of supportive supervision in the community, involved a high level of risk that the defendant would cease responsible use of medication, would fail to engage voluntarily with any form of psychiatric care, would relapse into abuse of illicit drugs and might commit a further offence of violence in a psychotic or drug affected or otherwise mentally dysregulated state. Recognising that risk, the Court of Criminal Appeal’s judgment, published on 16 May 2016, concluded with the following:

[34]   For completeness, it should be noted that this Court reiterated the concerns expressed by the sentencing judge as to the need for appropriate resources to be made available on Ms Haines’ release from custody and the acknowledgement from her legal representatives that they were aware of those concerns (see for example the concerns raised in the report of Dr Ana-Louise Martin, psychiatric registrar, of August 2009; the report of Dr Giuffrida of 23 September 2013; and the letter of 20 November 2014 from Michael Brownlee of the Department of Family and Community Services tendered at the sentencing hearing)

Commission of the index wounding offence

18. As Baly DCJ subsequently found, the Court of Criminal Appeal’s concerns were not addressed by any responsible executive authority and the defendant’s legal representatives were not able to recruit the services of a private agency or charity to support her after release. The defendant relapsed into drinking alcohol and abusing methamphetamine and heroin. On 10 July 2016 she committed the offence of wound with intent to cause grievous bodily harm that has been referred to at [2] above. At about 2:00 am on that day the defendant was present in a home unit at Waterloo, together with Ms Josephine Fisher, one other female and two males. The defendant had injected heroin during the preceding week and smoked methamphetamine during the previous evening. She had known Ms Fisher since their childhood. Believing that Ms Fisher had stolen a sum of money from her, the defendant commenced an argument, then abused Ms Fisher with foul language, said “I’ll kill you” and stabbed the victim with a knife in the upper right quadrant of her abdomen. The blade penetrated to the deep facia, being an inner layer of the muscle tissue of the abdominal wall, and left an open wound 30 mm long at the surface. The victim received prompt treatment from ambulance personnel and from staff of the St Vincent’s Hospital Emergency Department. She did not suffer long-term consequences.

19. I have earlier referred to the sentence passed by Baly DCJ. Having regard to the fact that the defendant has served out nearly the whole of the head sentence of 7 years, without any significant period on parole, it is pertinent to record what was submitted on behalf of the defendant to the learned sentencing judge in August 2018 concerning the need for supervision after release.

20. The learned judge recorded the following difficulties that the defendant had faced when she was sentenced by R S Hulme J, which it may be inferred would have continued when the Court of Criminal Appeal ordered her immediate release on 16 May 2016:

[She] had a number of health problems, including diabetes, lack of sight in her right eye, and short-sightedness in her left eye. She was positive to hepatitis C, and she had been assessed as having an IQ of 64, and an extremely low to borderline range of cognitive ability. Her intellectual capacity was assessed as being below 99 out of 100 for similarly aged persons. Her IQ indicated that she has an intellectual impairment

[Her] living skills were extremely poor and … she would struggle to live independently without support and care from professional workers. Her life management skills were considered to be further complicated by her poor physical health and her psychiatric diagnosis.

21. Against that background the following submissions were made to Baly DCJ by the defendant’s counsel:

[Counsel] submits that the best way to protect the community would involve a relatively short non-parole period and a lengthier period on parole. […] the parole period must be one that affords ample time for supervision and guidance, when the offender is released. There must be community supports put in place, and such supports must involve professional assistance.

Persuaded by those submissions, Baly DCJ fixed the non-parole period at only 50% of the full term, which her Honour described as a “significant and unusual degree of departure from the statutory ratio”. In the event, parole was not granted by the State Parole Authority until close to the expiry of the defendant’s head sentence due to the absence of any satisfactory provision of support for the defendant in the community. Baly DCJ’s intent of seeing the defendant reintegrated into the community over an extended period of supervision on parole has not been realised.

22. A similar outcome could be achieved by making an ESO, to the mutual benefit of the defendant and the community. The difficulties facing the defendant in trying to manage in the community, with her personal limitations and after 22 years of almost continuous incarceration, are immense.

Psychiatric diagnosis and history

From March 2001 to 14 April 2016

23. For the period from the defendant’s arrest on the murder charge in March 2001 through to 2014, her psychiatric diagnoses and treatment have been summarised above. In 2014 Dr Giuffrida became doubtful that the defendant had “ever truly suffered from schizophrenia” because her psychotic symptoms did not re-emerge after the reduction of her dosage of psychotropic medication. As mentioned above, Dr Giuffrida began to attribute the defendant’s ongoing “cognitive, motivational, or affective impairments” to “developmental disability”.

23. Dr Singh has expressed the following reservation about this change in the assessment:

[An] alternative explanation is that [the defendant’s] positive symptoms of psychosis resolved with assertive and sustained treatment with Clozapine and that her co-morbid symptoms related to her trauma, personality disorder and intellectual disability responded well to a contained environment and effective psychological and social rehabilitation interventions. I note that at the time [Dr Giuffrida] refuted the diagnosis of schizophrenia [the defendant] was still on 150 mg of Clozapine.

25. During the defendant’s final period of custody under the sentence for murder, from late 2014 to early March 2016, psychotropic medication was ceased. Psychiatrists who had contact with her in custody during 2015 thought that she displayed no evidence of any chronic psychotic illness, or pervasive mood disorder or other major mental illness. Dr Singh has summarised the professional assessments during that period as follows:

A perusal of the psychiatric reports compiled for the [State Parole Authority] and the Serious Offenders Review Council indicates that [the defendant’s] difficulties [were] increasingly attributed to her personality disorder and intellectual disability rather than the negative symptoms of psychosis and partially attenuated paranoid delusions.

26. From records of the defendant’s behaviour in prison towards the end of her sentence for murder Dr Singh has drawn the following conclusions:

Irrespective of the aetiology of symptoms, perusal of the institutional record indicates a re-emergence of [the defendant’s] paranoia and irritability towards other inmates as well as increasing isolation and withdrawal with lack of motivation. Her thoughts are at times fixed and unshakeable. There is increasing emotional dysregulation and impulsivity evident and potential relapse into illicit substance use, in the absence of treatment with psychotropic medication and effective psycho-social interventions.

From 14 April 2016 to June 2023

27. Over the three months during which the defendant was at liberty between 14 April 2016 (her release after 16 years of psychiatric confinement and custody following the murder) and 14 July 2016 (her arrest for the index offence of wounding), the defendant used methamphetamine and heroin. Upon her return to custody her affect was unstable, she had a disposition to self-harm and she had delusional beliefs and paranoid thoughts. In August 2016 a psychiatrist found her hostile, suspicious and under the delusion that she was pregnant. Paranoid psychosis was diagnosed and the defendant was commenced on Olanzapine, an antipsychotic. The defendant was initially held by Corrective Services in a mental health screening unit. In late August 2016 she was returned to the main prison environment on the basis of an assessment that, although she was still under a delusion with respect to an imagined pregnancy, this was a drug induced state of mind and she was not psychotic. Dr Singh has questioned this conclusion because the defendant’s delusion had persisted for longer than a month, which prime facie indicated a more persistent mental illness than drug induced psychosis.

28. The records reviewed by Dr Singh include numerous psychiatric opinions concerning the defendant provided by specialists and psychiatric registrars who assessed and/or treated her during the seven years of her imprisonment from July 2016 to June 2023. Account has also been taken of the defendant’s custodial records, which show 57 institutional misconduct charges between late 2014 and early 2023: for intimidation, fighting, assaults, damaging property, abusing custodial and health staff, abusing fellow inmates, using illicit and non-prescribed drugs, smearing faeces in her cell and over security camera lenses and so on.

29. From my own review of Corrective Services’ management system notes for the last five months of her custody up to 5 June 2023 they show almost continuous appalling, uncontrolled abusive, threatening and violent behaviour. On 11 January 2023 when presented with paperwork in relation to a parole application the defendant refused to accept it, refused to sign anything and said she would not cooperate further with the person who was designated to assist with the application. The next day she failed to attend a muster and when told that there would be a misconduct charge for this she called the corrective officer who so informed her a “dog”, banged on the office window, refused to return to her cell and then threw her chair on the floor of the cell. Three days later the defendant “trashed” her cell and was too aggressive to be let out. Then she threatened self-harm.

30. About a week later, on 22 January 2023, the defendant refused to admit a nurse to her cell for delivery of her medication. She covered up or openings to the cell so that she could not be observed. When an officer partially opened the door for a welfare observation the defendant threw an object and threatened to throw boiling water on the officer. The next day the defendant threatened to kill herself and to assault staff if they entered her cell. She repeated her threat to throw boiling water on the staff and held a sharp pointed leg of a broken chair at the officers. They had to enter with their faces covered with gas masks for protection and with a hard shield in order to bring the defendant under control. As she was being handcuffed she kicked over a container of boiling water which scalded the leg of one of the officers. When she had been removed and placed in an observation cell the defendant was seen to remove an object from the area of her vagina. This proved to be a razor blade. She proceeded to slash herself.

31. Passing over minor instances of abuse and non-cooperation in the intervening period, on 21 February 2023 the defendant abused a corrective officer as a “fucking whore”, then shouted to nearby inmates that the corrective officers were dogs and sluts. She threw a rubbish bag at the office door and swore loudly at the occupants. A few days later she was locked in her cell early as she and a fellow inmate was screaming at each other.

32. The custody management system notes continue in this vein up to the defendant’s release on 5 June, recording frequent abuse, threats and lack of cooperation. Dr Singh has noted a number of significant instances of self-harm in custody. One such event in May 2023 involved self-cutting, swallowing razor blades, self-strangulation and headbanging. On other occasions self-harm has included taking overdoses of medication and the defendant refusing insulin for her diagnosed diabetes.

Current diagnoses by Court appointed experts

33. In Dr Singh’s opinion, the defendant’s current presentation meets the criteria for the following psychiatric conditions:

• Schizo-affective Disorder with depressed mood – multiple episodes. In her report dated 24 July 2023 the doctor considered that this disorder was in full remission but based upon information concerning her subsequent conduct in the community Dr Singh gave oral evidence that the defendant “is probably experiencing a relapse of those symptoms”.

• Post-Traumatic Stress Disorder.

• Antisocial Personality Disorder.

• Borderline Personality Disorder.

• Stimulant, Opioid, Tobacco and Benzodiazepine Use Disorders – in remission in a controlled environment.

• Intellectual Disability – moderate severity.

34. Dr Sally McSwiggan, consultant neuropsychologist, has furnished to the Court a report dated 21 July 2023, also pursuant to Dhanji’s J’s orders of 15 June 2023. Dr McSwiggan made the following observations of the defendant during an assessment over one hour and 40 minutes on 6 July 2023:

[35]   Her thought processes were generally not illogical (psychotic) but came across as superficial, concrete, egocentric, and highly avoidant. She seemed to lack insight into her current circumstances.

[36]   Overall, [the defendant] did not appear to demonstrate features consistent with (an untreated) Major Psychotic Illness such as Schizophrenia or Major Mood Disorder such as Depression. Her presentation was of a low intellect, institutionalised, middle age woman with severe maladaptive personality traits on a background of complex trauma.

35. In oral evidence Dr McSwiggan disclaimed expertise to comment upon Dr Singh’s diagnosis of schizoaffective disorder. I accept the psychiatric diagnoses propounded by Dr Singh. She was not challenged in cross-examination about those diagnoses and they have been arrived at after very thorough examination of medical records dating back more than 25 years. Dr McSwiggan’s professional speciality is neuropsychology and it is apparent from her report that she concentrated upon answering specific questions put to her by the Crown Solicitor concerning the defendant’s cognitive functioning. Dr McSwiggan’s report does not purport to analyse the decades long history of the defendant’s psychiatric assessments, varying diagnoses and changing treatments. That was undertaken by Dr Singh and resulted in her conclusions about the complex psychiatric picture presented by the defendant.

36. As regards cognitive functioning, Dr McSwiggan reported as follows:

[49]   [The defendant] operates in the normal range of cognitive functioning, consistent with her premorbid estimate. She is in the range of Borderline Intellectual Functioning. There was no indication of a Mild Intellectual Disability. Her adaptive functioning skills since custody, living independently, [indicate] she can adapt to her surroundings (the criteria that defines level of intellectual disability as IQ can be depressed due to impoverished education).

[88]   [The defendant] falls in the range of Borderline Intellectual Functioning, which is not a diagnostic category of intellectual disability and does not appear in the intellectual disability section in DSM 5 [Diagnostic and Statistical Manual, 5^th Ed] (but it does appear at the end of the book under “not mental conditions” and listed as “other conditions that may be a focus of clinical attention”). There is no unanimous term for the phenomenon of Borderline Intellectual Functioning, names used in the literature include slow learner and general learning disability.

I accept Dr McSwiggan’s conclusions on the defendant’s cognitive functioning, in preference to Dr Singh’s view that an Intellectual Disability of moderate severity is present

Significance of psychiatric diagnoses for risk assessment

37. Dr Singh’s report includes the following with respect to the significance of the defendant’s mental disorders for risk of future violence:

The diagnosis of schizoaffective disorder is important to include despite this being in remission as it is known to have neurological sequelae, including specific cognitive impairments, which may compound [the defendant’s] pre-existing impairments, particularly those of her executive functioning. This would contribute to her impulsivity, her difficulty planning and impair her consequential thinking, thus increasing her risk of violence.

[…]

[Her] recent record and current assessment suggest that she is likely to continue to hold violent attitudes and struggle to generate pro-social responses in stressful situations. I note that [the defendant] has a long history of violent thoughts and behaviours, as evinced by her threats and aggression in childhood and during her period of incarceration. … [An assessment using a professional judgment tool that is widely accepted for assessing risk of violence and general re-offending] indicates the presence of all 10 historical risk factors for violence and [the defendant] is therefore assessed as having a high loading of historical risk factors associated with violence in the longer term.

In regard to clinical risk factors, [the defendant] displays limited insight into her propensity for violence and an understanding of the effect of her psychiatric symptoms … on her violent behaviour. She also does not demonstrate an understanding of the need for treatment, evidenced by her variable compliance with the same.

Defendant’s recent presentation and conduct

NDIS and guardianship supports in the community

38. On 17 May 2023 the agency administering the National Disability Insurance Scheme (“NDIS”) issued a plan of support for the defendant upon her release from custody. This included five hours per day of support with self-care activities, occupational therapy to assist with mobility and everyday living skills including travel, up to 60 hours of specialist behaviour intervention support and 30 hours for a behaviour management plan, including training and development of behaviour management strategies. In about mid-May accommodation for the defendant was secured, to enable her to live alone, taking account of her behaviour that would make it impossible for her to live with anyone else harmoniously. On the basis of those arrangements and supports the State Parole Authority ordered the defendant’s release, which occurred on 5 June 2023.

39. On 23 May 2023 the NSW Civil and Administrative Tribunal appointed the Public Guardian to make decisions about the defendant’s healthcare and accommodation.

Defendant’s recent manifestations of paranoia

40. Dr Singh identified from the historical records “entrenched antisocial attitudes and responses to threat (real or imagined)”. The doctor reported that those attitudes were:

also evident at the current assessment [on 10 July 2023] when [the defendant] struggled to articulate pro-social responses to difficulties she might experience and attributed her aggression to others being disrespectful towards her.

41. During her assessment by Dr Singh on 10 July the defendant insisted that she would not use drugs and said that she opposed the ESO because it is “double jeopardy”. Dr Singh has recounted in her report the following further features of this assessment:

She also repeatedly spoke about how her NDIS workers had stolen her money and personal details. Consequently, it took some time before it was possible to explain the process and purpose of the assessment and obtain consent to proceed. … Her affect was best described as labile, with periods of calm and periods of marked distress when she became tearful and stood up to terminate the interview. At times she was incongruent. [The defendant] presented as guarded and suspicious, and at times perplexed by the questions posed. … [There] was some degree of perseveration … There were times when she abruptly stopped speaking, even when relatively benign topics were being discussed. I understood this to be thought blocking (a neuropsychological symptom characterised by sudden involuntary cessation of speech) and at other times experiences of dissociation.

… She was preoccupied with the belief that her NDIS provider had stolen her identity and her money. … I considered this to be an over-valued idea, but if it is not true and persists then it may reach delusional intensity.

42. Dr McSwiggan had a similar experience of the defendant’s volatility and paranoia in her consultation on 6 July 2023, as follows:

[The defendant] was aware there was an application for an ESO. She objected to it and then referred to “being gassed at Clarence in 2021” and there was a conspiracy to cover up some unlawful act by applying for an ESO. …

[The defendant] became emotionally dysregulated within the first 10 minutes and several times throughout the interview. She cried loudly and stood up to leave twice. At one stage she exaggerated a panic attack […] with her arms raised and commenced rapid, shallow, loud breaths. When directed to stop she could regain emotional control and continue the interview.

During the assessment the defendant made numerous, unfounded claims of persecution and attempts to obtain her money, including such allegations against her NDIS carers. The defendant was difficult to interrupt.

43. Dr Singh identifies a connection between the defendant’s schizoaffective disorder and her recent paranoid preoccupations concerning NDIS workers and the State’s application for an ESO. The doctor perceives a risk of relapse into psychosis, as follows:

To discount this diagnosis [of schizoaffective disorder] as erroneous [in favour of intermittent drug-induced psychosis, as suggested in some reports of earlier years] is in my view perilous when formulating her future risks and treatment plans. Furthermore, while the schizoaffective disorder is currently considered to be in full remission, if [the defendant’s] overvalued idea regarding the NDIS workers and the reasons she presents for the ESO being pursued [are] persistent to the extent that they impair her functioning and increase her irritability and lability of mood, this may trigger a re-emergence of the symptoms. Relapse into substance misuse, poorly controlled diabetes and psycho-social stressors may trigger a relapse of psychosis and thus need to be monitored.

44. Dr Singh’s concerns about relapse of psychotic symptoms, thus expressed in her report of 24 July 2023, appear to have been realised in September, as related below.

Events during parole and breaches of Interim Supervision Order

45. On 13 June 2023, eight days after her release on parole, support workers for the defendant contacted Community Corrections officers, who were at that time responsible for her supervision under the parole order, to advise that she had made threats of self harm. Police attended her residence. The defendant said that she had a panic attack after spending the first night alone in the property.

46. On 23 June 2023 a Legal Aid solicitor contacted police to advise that the defendant had again threatened self-harm, following what they referred to as a “negative result at court”. I infer that this may have been a reference to the interim supervision order having been made during the previous week, to take effect from 14 July 2023. Police attended the defendant’s home but were unable to locate her either there or in the local park where support workers suggested she might be found. Although police were able to contact the defendant on her phone she did not give accurate information as to her location and they were eventually occupied for three hours trying to locate her to ensure her physical safety and compliance with parole conditions.

47. On 5 July 2023 the defendant’s support workers reported her missing. The report was initially made to Community Corrections personnel and was conveyed by them to police. From when that missing person report was received, police resources were deployed from several police commands over two days in attempts to locate the defendant, during which time she was intermittently contactable by phone but refused to disclose her whereabouts.

48. The conditions attached to Dhanji J’s interim supervision order of 15 June 2023 did not include a requirement that the defendant wear an electronic position monitoring device. The inclusion of such a condition was strongly opposed at the preliminary hearing, as it has been in the final hearing before me. The conditions included a curfew requiring the defendant to remain at her approved address between 9:00 pm and 6:00 am and not to spend the night at any other address unless approved by a Departmental Supervising Officer (“DSO”).

49. During the evening of 18 July 2023, four days after the order came into effect, the defendant phoned her support workers and said that she had locked herself in a room due to threats of violence and drug use. She would not disclose her location to the workers. Community Corrections officers made extensive attempts to locate the defendant over the following two days. She was eventually contacted by mobile phone on 20 July 2023 and she was requested to return to her residence in Westmead and be available via to be interviewed at noon on Friday, 21 July 2023. This direction was given pursuant to the terms of the interim supervision order. It was ascertained that by this time the defendant had purported to terminate the support services of the original NDIS provider and arrange alternative support from another entity, unknown to Community Corrections.

45. In the above circumstances Community Corrections determined that the defendant should be arrested and charged with breach of the interim supervision order. They attended at the defendant’s address, with two police officers. The defendant arrived at her accommodation driven by another person but, on seeing the police, she caused the driver to convey her away from the scene. She was later arrested at an address in Alexandria and charged with three breaches of Dhanji J’s order, constituted by failure to comply with a direction from a DSO, failure to remain at her approved address between 9:00 am and 6:00 am and spending the night at an address other than her approved address without permission of a DSO.

46. The defendant was remanded in custody on those charges. She pleaded guilty and on 28 August 2023 the Local Court imposed an intensive correction order, with conditions. That order will remain in force until 24 July 2024. The defendant was released from her remand on 28 August 2023. She returned to her approved residence in Westmead, still bound by the interim supervision order.

Events subsequent to the final hearing

52. I granted an application made on the defendant’s behalf on 27 September 2023 to reopen her case to adduce evidence of a recent further admission of the defendant to Cumberland Hospital as an involuntary patient. Upon the defendant’s release on 28 August 2023, Community Corrections officers observed her to be “quite unstable”. Her support agency under the NDIS plan arranged for her to have night support, which continued until 11 September 2023. After cessation of overnight attendance of a carer, during the night of 13 September 2023 the defendant was alone in the house at Westmead and called the support agency to advise that she was going to harm herself and burn down the property. At 10:00 am next morning she was taken to Westmead Emergency Department by ambulance officers, exercising their authority under s 20 of the Mental Health Act 2007 (NSW). Westmead Hospital notes record that the defendant was uncooperative and very problematic to manage.

53. At 6:30 pm a medical officer at Westmead Hospital determined that the defendant should be detained as a mentally ill person. It was concluded that she had relapsed into psychosis and required a psychiatric intensive care placement. A bed in an institution at Orange was found but there was a delay while transport was being organised. By 7:10 pm the defendant had swallowed four razor blades while in the Emergency Department at Westmead. The ingestion of the blades was subsequently confirmed by a scan. Her transfer to Cumberland Hospital proceeded on 17 September 2023. The next day the defendant passed one razor blade and three remained. She was moved to Blacktown Hospital for further management of that emergency. All razor blades had been passed, without the need for surgery, by 22 September 2023. It was decided to transfer the defendant back to Cumberland Hospital. A decision regarding treatment with psychotropic medication was deferred to the staff of that institution.

54. The defendant became extremely agitated and irrational concerning the proposed transfer to Cumberland and made threats of physical harm towards hospital staff. On 25 September 2023 at Cumberland, Dr Kim Ngo informed a Community Corrections officer, Ms Susan Page, of her opinion to the following effect:

[The defendant] had no psychosis and no acute mental illness. That her displayed behaviour is impulsive and behavioural. Dr Ngo was considering discharging her today. […] She has had no treatment during her stay for mental illness.

55. Ms Page queried this decision in view of the assessment that had been made at Westmead Emergency Department on 14 September 2023. Ms Page was informed later on 25 September 2023 that the defendant would definitely not be discharged from Cumberland that day. Ms Page recorded the defendant’s reaction when informed that she was not to be immediately discharged:

[She] yelled at me for 2 minutes, she said she will go back to prison, she said she was going to spend the next 3 months in hospital, she was saying it was ESO’s fault (specifically directed at me), “fuck you Susan, you are keeping me here”. … [She] continued to yell at me saying she no longer wants to speak to me, “don’t call me”, “fuck you Susan” and terminated the call.

56. The defendant was discharged from Cumberland Hospital on 26 September 2023. The discharge summary of that date, authored by Dr Ngo, recorded “Situational crisis” as the principal diagnosis. I do not understand that to be a psychiatric disorder recognised in the Diagnostic and Statistical Manual. “Additional” diagnoses were listed, not including schizoaffective disorder, although that was stated to be part of the defendant’s documented background. The discharge summary included the following:

According to [the ambulance officers’ report under s 20 of the Mental Health Act, at the time of delivering the defendant to Westmead Hospital]: “Patient has erratic behaviour, in denying all questions, has disjointed thoughts, stated her house is haunted and has seen spirits and is semi-cooperative, has agitated verbal outbursts. Denies drug or alcohol use. Patient paranoid, has been discharged from Silverwater and is not coping well being alone. …”

It is unclear where threats to burn her house came from as it is not mentioned in the Section 20.

Reportedly assessed by Forensic Psychiatrist Dr Yolisha Singh (report dated 24/7/23) as being acutely psychotic with thought disorder, persecutory ideation/overvalued ideas about support workers trying to commit identity fraud.

… The psychiatry team at Westmead thought she was experiencing relapse of schizoaffective disorder after presenting in acutely distressed state with volatile, irritable and dysphoric affect, loud pressured speech and was difficult to interrupt. …

On 16/9 there was delay in organising transport to [a psychiatric hospital in Orange] … which led to her becoming agitated and thinking the hospital wanted to starve her to death. …

[The defendant] was then transferred to Yaralla Ward, Cumberland Hospital [on 17 September, for a brief period prior to her transfer to Blacktown Hospital to deal with the ingested razor blades] … Whilst in Yaralla no psychotic symptoms were observed. Her diagnosis was revised to adjustment disorder whilst in Yaralla.

[From Blacktown Hospital the defendant] was then transferred to Cumberland Hospital 22/9 for ongoing care. During this time she presented with nil speech disturbance or mood or psychotic symptoms. She reports having a bad day and worries about her son who had a gunshot wound and had a stoma bag and she wasn’t able to get to him to care for him. She denies trying to burn her house down, stating she burnt some sausages as she is not a good cook. …

It was unclear whether [the defendant] had an underlying psychotic illness however cross-sectionally she did not present with any persisting mood or psychotic symptoms and had not been commenced on any regular psychotropic medication. Her presentation is complicated by the presence of moderate intellectual disability, paranoid personality structure and visual and hearing impairment which may contribute to misunderstandings of a paranoid nature.

The defendant’s supplementary submissions

57. Taking into account events that occurred after the final hearing before me on 16 August 2023, the defendant’s supplementary submissions drew together all of her bases for opposing an ESO, to the following effect:

1. In combination, the defendant’s general dysregulation and volatility, her “steadfast” opposition to an ESO and her history of having breached the interim supervision order indicate that she is not likely to comply with an order. That is a consideration that the Court is required to take into account pursuant to s 9(3)(e2) of the Act. Imposition of an ESO upon her would be “setting her up to fail”.

2. “The defendant will remain under community supervision outside the confines of the justice system by way of an NDIS package”. She will not be able to abandon the supports provided by NDIS because decisions with respect to them are in the hands of the Public Guardian under a guardianship order.

3. The defendant is now subject to an intensive correction order that will continue in force until 24 July 2024.

4. The defendant’s hospitalisation in September “underscores the sufficiency of her current supports”. Her NDIS provider called an ambulance when her mental health deteriorated and “the NSW mental health system ensured the defendant’s appropriate care in respect of her mental health and self-harm attempts for some days”.

5. “[The] defendant is best dealt with as a person with complex mental health needs and disabilities, and community protection is best advanced from a patient-centred approach (absent an ESO) rather than one of invariably practically punitive extended supervision.”

An extended supervision order will be made

58. In my assessment the defendant poses a very great risk of committing another serious offence of violence if not kept under supervision pursuant to an order. That conclusion is based in part upon the defendant having committed one murder, 22 years ago, and one very serious wounding offence, seven years ago. The defendant has committed numerous other acts of violence before the murder and she has threatened many more in the custodial environment. I consider that the only reason she has not committed additional more serious violent offences over the past 22½ years is that she has been in the reasonably controlled environment of either forensic or general psychiatric hospitals, or in prison.

59. The murder and the wounding were committed spontaneously, irrationally for no cause. The defendant’s long history of intermittent psychosis and near constant unpredictable volatility, coupled with her habituation to violence and threats of violence, make her a danger to the community. The defendant is commonly non-compliant with medication that might reduce the psychiatric component of her risk and she has a tendency to revert to the use of illicit substances which evidently increase the risk. The defendant exhibits a permanent state of aggression towards whomever she is in contact with – associates in the community, fellow inmates, corrections officers, health workers trying to care for her, social support workers and others.

60. I consider that the risk of further violence by the defendant, if she is not supervised, is very high and unacceptable. The Court’s duty in those circumstances is to make an extended supervision order under the Act. I cannot give significant weight to the defendant’s opposition. She is self-focused, intermittently deluded and entirely lacking in insight. I do not expect that she has any appreciation of the risk that she poses to others, which is the issue upon which the plaintiff’s application turns. I do not consider that the defendant has, or is likely in future to have, sufficient control over her own conduct to reduce that risk, in the absence of supervision by others pursuant to an order that is capable enforcement, including by returning her to custody for breach if necessary.

61. The reference in the defendant’s submissions to “setting [her] up to fail”, by making an order, is inapposite. That characterisation would apply to overly prescriptive conditions of an order, if they were counter-productive to risk management and would merely create impossible restrictions that would likely lead straight to breach and further imprisonment. The Court cannot refrain from making an order that is otherwise called for according to the criteria in the Act, just because the defendant threatens non-compliance and/or appears highly likely to breach the order.

62. I do not accept that NDIS supports and the Public Guardian’s control of the defendant’s affairs, either alone or in conjunction with other factors, are enough to reduce to an acceptable level the risk posed by the defendant. Those supports may be sufficient to enable her to manage day-to-day living and they may reduce stressors that would otherwise exacerbate her volatile propensity for violence. However, even in the few weeks during which the defendant has been at liberty since 5 June 2023, with those supports in place, the defendant has behaved erratically, exhibited paranoia, lapsed into psychosis, threatened violence and threatened to burn down the accommodation that has been provided for her.

63. The existence of an intensive correction order for the next 10 months, as ordered by the Local Court, is not sufficient, either alone or in combination with other matters, to reduce the risk posed by the defendant to an acceptable level. And ESO with specific conditions and scope for ready enforcement is called for.

64. The defendant’s submissions concerning the circumstances and outcome of the defendant’s recent hospitalisation under the Mental Health Act appear to assume that the Court is concerned with the sufficiency of “her current supports” only from the point of view of providing adequate mental healthcare to the defendant. When that episode is examined from the point of view of the Court’s duty under s 9 of the Act to treat “the safety of the community [as] the paramount consideration”, the recent episode is very concerning.

65. Throughout the relevant events the defendant exhibited her characteristic aggression and abuse towards health workers, Community Corrections officers and social workers who were acting in her interests. The medical officer who exercised ultimate decision-making authority to determine that the defendant should not remain as an involuntary patient did so on the basis of a very short window of assessment. It is understandable that a busy specialist in that position would not have had time for a longitudinal study such as that undertaken by Dr Singh. However, Dr Ngo did not even read Dr Singh’s report to gain an overview of the complexity of the defendant’s diagnosis and she drew a conclusion that the defendant had not been psychotic despite the clearly recorded observations and conclusions of ambulance officers and Westmead Emergency Department staff. Dr Ngo’s finding that the defendant’s presentation should be treated to nothing more than a “situational crisis” is extremely surprising. Dr Ngo appeared to doubt the defendant’s threat to burn her house down but that was readily verifiable and is significant. The whole episode leaves the Court with no confidence that the mental health system can respond adequately to the likely future recurrence of the defendant’s crises and relapses into psychosis. It is unrealistic to expect that anyone exercising authority under the Mental Health Act will be able to respond in a timely and sufficiently informed manner to mitigate the danger to community safety that the defendant represents.

66. I reject the defendant’s fifth proposition, that the risk of future violence by the defendant should be addressed through a “patient-centred approach (absent an ESO)”. Authorities other than the Court are responsible for treatment of a mental patient such as the defendant. Under the Act, the Court is primarily responsible for community safety. No doubt medical management of the defendant’s intermittently relapsing schizoaffective disorder will contribute to amelioration of the risk of future violence. However, the defendant is not compliant with psychotropic medication and is hostile and aggressive towards health workers. Authorised medical officers under the Mental Health Act have not seen fit to make a community treatment order. The recent events at Cumberland Hospital demonstrate significant likelihood that in urgent circumstances medical officers will be unaware of the historically-demonstrated risk posed by the defendant and will be reticent to schedule her for involuntary treatment.

67. Contrary to the defendant’s submission, and ESO does not involve “invariably practically punitive extended supervision”. Such an order may will be breached and may result in further incarceration of a seriously to his regulated, dangerous person such as the defendant. That is an incident of the scheme of this Act.

68. Despite the apparently entrenched risk factors with respect to the defendant, I am not inclined to make the order for a duration of 5 years as sought by the plaintiff. I accept the plaintiff’s submission that limiting the order to a period of only 2 years, as considered in the course of argument, would impose upon the plaintiff a requirement of reassembling evidence on a short frame turnaround that would not permit sufficient implementation of the to enable its utility and work ability to be assessed. I will make the order to continue for 3 years. There are such serious questions about the capacity of the defendant to comply that I do not think the order ought to be in place for any longer than that in the first instance. If, after 3 years’ experience, it appears to be workable and if the defendant’s psychiatric disorders and other risk factors remain present in the high degree at which I have assessed them on this application, then a summons filed by the plaintiff for a further order may be successful.

Conditions of the order

69. The ESO that I propose to make will include a schedule of conditions, as sought by the plaintiff that the final hearing but with exceptions identified in the following paragraphs. In respect of such conditions as were not opposed by the defendant I will not provide reasons for their inclusion. In respect of conditions that were the subject of dispute, I will state my reasons for inclusion or exclusion, as the case may be.

3 & 4 – conduct towards Community Corrections officers

70. The plaintiff seeks a condition (3) that the defendant provide truthful information to any DSO supervising her and condition (4) that she not engage in threatening intimidating or abusive behaviour towards personnel concerned in administering the order. Conformity with the first of those requirements is an important aspect of enabling Community Corrections officers to fulfil their role of supervision. The second of the conditions reflects a fundamental expectation that law-enforcement officers should be treated with respect in the performance of their duties, which in any circumstances are difficult enough.

71. The defendant’s history of interaction with persons in authority has demonstrated her lack of regard for the truth, her willingness to withhold information and gross departures from ordinary standards of civility. There is a very high likelihood that the defendant will not comply with either of conditions 3 and 4. During the final hearing I was disinclined to either of these conditions for fear that they would simply lead to frequent breaches and, consequently, frequent exposure to prosecution for offences attracting a maximum penalty of five years imprisonment. However upon full consideration of the prison system management notes, the events that led to prosecution of the defendant for breach of the interim order and the crisis of 13 September when she threatened to burn down her accommodation, I have come to the view that conditions 3 and 4 should be imposed.

72. Regrettably, based on my examination of the prison system management notes, it appears likely that Community Corrections officers whose duty it will be to engage with the defendant, in her volatile and mentally disordered state, will have to put up with a great deal of very unpleasant behaviour. They will also have to put up with evasion and misleading that may make it extremely difficult to carry out effective and constructive supervision at the defendant. For the ESO to be workable considerable restraint will have to be exercised with respect to bringing any charge against the defendant for breach of these conditions. However, I consider it necessary that as a last resort that recourse should be available if the defendant’s failure to provide truthful information and/or abusive conduct on her part should reach intolerable levels.

5 – electronic monitoring

73. Dhanji J was unwilling to attach a condition of the interim supervision order that the defendant should cooperate in and submit to electronic monitoring, upon the basis that there would be “a danger of discouraging the defendant in her efforts by the imposition of a condition that she will view is unfairly harsh”. His Honour was informed that the defendant was “particularly concerned” about the prospect of such monitoring.

74. Since the preliminary hearing there have occurred the instances earlier described of Community Corrections officers and police being unable to locate the defendant when they needed to, either to require her compliance with other legal constraints upon her or to respond to her own reports of distress. The latter are material to community safety because of the unpredictability of the defendant’s reactions to situations of personal distress and the potential for consequent violence on her part. Those later events alter the picture from that which was in evidence before Dhanji J.

75. In oral evidence at the final hearing Dr Singh expressed the view that the defendant’s past acts of serious violence have not been location specific and that being able to ascertain her position in real-time by electronic monitoring would not be directly relevant to reducing the risk of further violence. In my view the utility of electronic monitoring would not be direct. It would enable rapid response to situations of crisis, such as occurred in the incidents of June, July and September this year, and would enable Community Corrections promptly to locate defendant and extricate her from situations that might escalate to violence.

76. Dr Singh also expressed the view that “this condition is likely to hinder risk reduction and is more likely to escalate her risk”. In support of that view Dr Singh made reference to a note in the custodial record that, on the doctor’s reading, indicated “that she escalates markedly when she is physically restrained on the basis of her previous trauma”.

77. Dr McSwiggan gave the following oral evidence:

[My] recollection is that she was very upset when we spoke about electronic monitoring. And she said it had been taken off [apparently referring to removal of a proposed electronic monitoring condition by the State Parole Authority] and that she wasn’t going to come out on parole on that basis, because I think […] she said it would bring back trauma. …

I noted at paragraph 92 of my report that she may end up sabotaging this order should she consider the [condition is] impacting her freedom from decisions or too cognitively demanding […] I have a view that electronic monitoring will most likely probably be required because I think this is going to be something that will continue for [the defendant] in terms of ignoring phone calls and sabotaging the order so that she can continue to exert a level of freedom. […] I think that she will have great difficulty with electronic monitoring, and I think she will be very upset by it, to the point where she may even refused to come out of custody if she has to wear an electronic monitoring device. …

[There] has to be a level of agreement in terms of putting it back on to be recharged every day, so there’s going to have [to be] a level of her agreeing to wear this because the recharging of it is going to be very difficult if she is just completely opposed to it.

78. The imposition of this condition is not sought merely to make the task of Community Corrections and police officers easier, nor to conserve law enforcement resources. The plaintiff has made out a persuasive case, on the evidence before me, that electronic monitoring may well be necessary to enable the ESO to be administered with any practical effect, in particular for the purpose of locating the defendant at times when she is not in compliance with other conditions and when she may be at risk of a situation that could lead to a violent outburst. The erraticism and lack of cooperation of the defendant, amply demonstrated in her custodial record and continued since her release, will make supervision of the defendant under this ESO extremely difficult, to a degree that the Court’s order may be incapable of being given effect, without this facility.

79. As proposed by the plaintiff, the condition would not prescriptively require electronic monitoring at all times but would leave it in the discretion of a DSO to require that the defendant be electronically monitored as and when seen fit. I will impose a condition to that effect but will reword it slightly to place more emphasis on the discretionary aspect, as follows:

5   A DSO may at any time, in the exercise of his or her discretionary judgment, require that the defendant wear electronic monitoring equipment for such duration and/or on such occasions and/or in such circumstances as the DSO may direct. If such a direction is given then the defendant must comply by wearing electronic monitoring equipment as specified by the DSO and must not tamper with or remove the equipment and must comply with such directions as the DSO may give with respect to charging and maintaining the equipment.

6 & 7 – advance schedule of movements

80. The plaintiff seeks a condition (6) that the defendant provide a weekly schedule to her DSO, three days in advance of the commencement of each week, setting out “any appointments and social or family activities that she wants to attend” and the locations and times of these events. Condition (7) would require her to notify her DSO in advance of any proposal to depart from the schedule.

81. The defendant has no employment and is unlikely to secure employment. The evidence does not disclose any regular activities that she would engage in. Such activities may be taken up, over time, with the assistance of her NDIS support workers. In the meantime, the defendant’s ad hoc pastimes and movements would seem very difficult to forecast and set out in a schedule. Notwithstanding the defendant’s cognitive limitations and tendency to unpredictable movements and behaviour, I am satisfied that with the assistance of NDIS carers the defendant could notify her proposed movements, weekly in advance, and adhere to such a plan or notify a DSO by phone of any proposed variations.

82. During the hearing I was sceptical of the practicality of this requirement. However, events subsequent the hearing have shown that the NDIS carers are actively engaged and would be able to assist the defendant with the scheduling task. It is not likely to be particularly complicated and I am satisfied from Dr McSwiggan’s evidence that it be within the defendant’s capability, with assistance. I have changed the wording of condition (7), slightly, from that sought by the plaintiff.

9 – curfew

83. I consider that the imposition of a curfew between 9:00 pm and 6:00 am is reasonable, not least for the reason given by Dhanji J that it would tend to “embed some routine and stability” in the defendant’s movements and habits of life. In particular, it would tend towards establishing her approved residence as a place of permanence. Dr Singh expressed the view that 9:00 pm might be regarded as rather too early in the evening for commencement of the curfew but in my view it is reasonable and appropriate. Notably, the curfew may be the subject of exception pursuant to approval of a DSO.

16 – financial information

84. The defendant opposes a condition (16) that she provide financial information to her DSO if directed. I do not consider this condition either necessary or useful to the reduction of the risk that the defendant may commit another offence of violence.

25 – possession of weapons

85. In proposed condition (25) the plaintiff seeks a broad but carefully worded prohibition upon the defendant possessing any bladed weapon. Although the general criminal law covers much of the ground to which this condition is directed, in my view it is appropriate.

26 – access to internet

86. By proposed condition (26) the defendant would be required to comply with any reasonable direction given by a DSO to facilitate access to any device used by the defendant for communication. The defendant’s past offences have not been linked to phone or Internet communication and, in Dr McSwiggan’s assessment, she has very limited capability with electronic communications devices. Nevertheless, the condition would potentially be of some utility for enabling Community Corrections officers to identify the defendant’s associates, whereby they may be alerted to any risk that such associates may present with respect to drug abuse or other activities that could lead the defendant into situations of stress and, potentially, violence. I will include this condition in the order.

27 & 28 – search and seizure

87. Conditions (26) and (27), requiring the defendant to submit to search of any item of or place in her possession or under her control and not to attempt to destroy or interfere with any object that is the subject of such a search, are in my opinion appropriate notwithstanding that they confer upon Community Corrections wider powers that could be exercised by police under statute. There is some evidence that since her release the defendant has been in possession of objects intended to be capable of serving as weapons. Her tendency to paranoia and delusion gives rise to the risk of her keeping and concealing weapons. I propose to amend condition (26) as drafted by the plaintiff by making reference to seizure, as follows:

26   The defendant must submit to the search of any item or place in her possession or under her control including her residence and must submit to the seizure by or on behalf of a DSO of any item that the DSO considers to be in breach of condition (25).

31 & 32 – medical treatment and information

88. I propose to include conditions (31) and (32) as proposed by the plaintiff, requiring that the defendant agree to her treatment and service providers sharing information with each other and that she agree to each of them keeping a DSO informed about her appointments and compliance. Condition (31) may not be strictly necessary as health professionals would have implicit consent of their patient to share information with colleagues involved in her treatment. Nevertheless, I will include that condition for more abundant clarity.

Orders

89. The following orders will be entered:

1. The order made by Dhanji J that the defendant be referred to in these proceedings by a pseudonym is varied to the extent that it shall not apply to this judgment and its publication and dissemination.

2. Order pursuant to sections 5B and 9(1)(b) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order from 13 October 2023 for period of 3 years.

3. Order pursuant to sections 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant comply with the conditions set out in the schedule to the reasons for decision for the duration of order (2).

**********

Final Schedule of Conditions 13.10.23 (50203, docx) Final Schedule of Conditions 13.10.23 (50203, docx)

Amendments

13 October 2023 - Change name of Counsel

17 October 2023 - Pseudonym lifted

Decision last updated: 17 October 2023