State of New South Wales v Haouchar

[2018] NSWSC 1436

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Haouchar [2018] NSWSC 1436
Hearing dates:	10 September 2018
Decision date:	25 September 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Extended supervision order for 2 years with conditions
Catchwords:	HIGH RISK OFFENDER – extended supervision order – whether Court satisfied to high degree of probability that offender poses unacceptable risk of committing another serious offence if not kept under supervision – offender convicted of manslaughter, armed robberies, and being accessory to murder – offender classified as at high risk of reoffending – diagnosis of antisocial personality disorder – gravity and consequences of possible criminal conduct contributors of unacceptable risk – offender overseas at time of hearing – overstayed stated return date – anticipated return now unknown – lawyers’ retainer terminated – agreed that judgment should be handed down forthwith.
Legislation Cited:	Children (Detention Centres) Act 1987 (NSW) s 24(1) Crimes (High Risk Offenders) Act 2006 (NSW) ss 4, 5A, 5B, 5I, 9, 10C Crimes (High Risk Offenders) Amendment Act 2014 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 Firearms Act 1996 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited:	R v Haouchar [2018] NSWSC 885 R v Kari; R v H; R v Hamid [2008] NSWSC 993 State of New South Wales v Haouchar [2015] NSWSC 798 State of New South Wales v Haouchar [2018] NSWSC 979
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Bilal Haouchar (Defendant)
Representation:	Counsel: Ms K Richardson SC with Mr T Hammond (Plaintiff) Mr M Johnston SC with Mr A Djemal (Defendant)   Solicitors: Crown Solicitor’s Office One Group Legal
File Number(s):	2014/328562

Judgment

1. HIS HONOUR: The State of New South Wales has applied for an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of Bilal Haouchar.

2. Mr Haouchar opposes the application, has raised a question as to whether the Court has jurisdiction to make the order, and has contended that if an order is made it should not be subject to all of the conditions the State proposes.

3. An unusual feature of this case is that Mr Haouchar left the country shortly before the hearing and has not returned. I propose to discuss the merits of the application and then deal with the ramifications of Mr Haouchar’s absence.

Legislative requirements

4. The Court may make an extended supervision order if the following requirements are met.

5. First, the person must be an offender who is serving, or who has served, a sentence of imprisonment for a serious offence (as defined) either in custody or under supervision in the community: s 5B(a) of the Act. Mr Haouchar has served a sentence of imprisonment for a serious offence, namely manslaughter. It was served mostly in custody but partly under supervision in the community for a period in which Mr Haouchar was on parole.

6. Secondly, the person must be a “supervised offender (within the meaning of s 5I)”: s 5B(b). Section 5I(2) provides a definition of a “supervised offender”:

"A supervised offender" is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's "current custody or supervision"):

(a) while serving a sentence of imprisonment:

(i) for a serious offence, or

(ii) for an offence of a sexual nature, or

(iii) for an offence under section 12, or

(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or

(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

7. It is notable that the definition is concerned with the offender's status “when the application for the order is made”. In this case the application was made by the filing of a summons on 7 November 2014. As of that date Mr Haouchar was in custody serving the balance of parole in respect of a sentence imposed for an offence of robbery in company which was being served partially consecutively with a sentence imposed for an offence of manslaughter, the latter being within the definition of a “serious offence”: see s 4(1) and s 5A. Accordingly the requirement of s 5I(2)(a)(iv) is satisfied. That has the effect that Mr Haouchar is a “supervised offender” for the purpose of s 5B(b).

8. Thirdly, the application for the order must have been made in accordance with s 5I: s 5B(c). There is no issue about this.

9. Fourthly, the court must be 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”: s 5B(d). This matter is contentious and will be discussed later.

10. Section 9 provides that the court may determine an application for an extended supervision order by either making the order or dismissing the application.

11. Pursuant to s 9(2) it is mandatory for a court to regard the safety of the community as the paramount consideration in determining whether or not to make an extended supervision order. It is also necessary to have regard to the matters listed in s 9(3) in addition to another matter that is considered relevant.

Procedural history

12. As indicated earlier, the initiating summons was filed on 7 November 2014. The State sought preliminary orders which included the appointment of two experts to conduct psychiatric and/or psychological examinations of Mr Haouchar and that there be either an interim detention order (IDO) or an interim supervision order (ISO). The final orders sought included that there be either a continuing detention order (CDO) or an extended supervision order (ESO).

13. The preliminary hearing was before Wilson J on 12 December 2014: State of New South Wales v Haouchar [2015] NSWSC 798. Her Honour made the orders concerning Mr Haouchar being examined by two court-appointed experts but she declined to make either an IDO or ISO. The legislation at that time only provided for an interim order to date from a day specified in the order or otherwise from the date the order was made. (An amendment by the Crimes (High Risk Offenders) Amendment Act 2014 (NSW) inserting sub-ss (1A) and (3) into s 10C had received assent but had not yet been proclaimed to commence. It had the effect that an ISO is suspended for the period when an offender is in lawful custody for something else.) Mr Haouchar was soon to complete serving the last of a series of sentences that had been imposed upon him and was due for release in respect of that sentence on 23 December 2014. In addition, however, he had been recently charged with some other serious offences for which he was refused bail and it was expected that he would remain in custody for some indeterminate time. There was no utility in her Honour making an interim order that would have no practical effect while Mr Haouchar was in custody.

14. Mr Haouchar remained in custody for a very lengthy period of time whilst those pending charges, and further charges that were subsequently preferred, were resolved one way or another. Ultimately, the only matters that proceeded to sentence were finalised on 15 June 2018 when Hidden AJ sentenced Mr Haouchar for offences of accessory after the fact to murder and accessory after the fact to shoot with intent to murder: R v Haouchar [2018] NSWSC 885. (The Crown accepted pleas of guilty to such charges in lieu of charges of murder and shoot with intent to murder.) Hidden AJ had regard to the period of approximately 3½ years that Mr Haouchar had been held in custody bail refused. He imposed in each case a bond to be of good behaviour under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 2 years with the bonds being subject to the condition that Mr Haouchar submit to the supervision and guidance of the Probation and Parole Service (sic – Community Corrections).

15. It is perfectly understandable that there had been no activity in relation to the high risk offender application brought by the State while Mr Haouchar had been bail refused in respect of the other charges. There was no utility in pursuing the making of final orders either by way of a continuing detention order or an extended supervision order while Mr Haouchar was in custody for an indeterminate time for other reasons. However, with his release into the community on 15 June 2018 the State then brought the matter urgently before Button J seeking once again an IDO or an ISO. His Honour refused to make either order: State of New South Wales v Haouchar [2018] NSWSC 979.

16. It is apparent from the reasons provided by Button J that his Honour was not persuaded that he had a power to make either an IDO or an ISO because the legislation in respect of both forms of order required a certain situation to be current as at the time of the making of the order (relating to the defendant being in custody or under supervision (defined so as not to include supervision under a good behaviour bond)). As neither situation pertained to Mr Haouchar at the time the matter was before Button J there was no jurisdiction for his Honour to grant the State’s application. However, in the course of discussing the legislative requirements, Button J noted that there was no controversy that as at the time the summons was filed Mr Haouchar was, for the purposes of s 5I, a “supervised offender” because he was at that time serving a sentence for a serious offence: State of New South Wales v Haouchar at [52].

17. The consequence is that the two court-appointed experts (appointed by Wilson J in December 2014) conducted examinations of Mr Haouchar and have provided reports. Otherwise Mr Haouchar has been at liberty in the community subject to the requirements of the bonds imposed by Hidden AJ on 15 June 2018. The extent to which he has been at liberty is exemplified by the fact that a week and a half before the matter came before me for final hearing on Monday 10 September 2018 Mr Haouchar left the country on a business class flight to Beirut with an itinerary that indicated an expected return on a flight arriving at Sydney at 5:20pm on Friday 14 September 2018. My associate was advised by email from Mr Haouchar’s representatives on the morning of Monday 17 September that he had not returned. She sought an update by way of an email sent on the morning of Thursday 20 September. The response of Mr Haouchar's solicitor was to send a Notice of Ceasing to Act which included that Mr Haouchar had terminated his retainer.

18. The final aspect of the procedural history to note is that an Amended Summons was recently filed by the State whereby it only seeks an ESO for a period of 2 years.

Mr Haouchar’s history

19. Mr Haouchar was born in 1986 and so he is now aged 32. His parents were born and raised in Lebanon. He identifies as Australian culturally but his family have always maintained some connection with Lebanon and the family and culture there. He was the fourth of seven children and he has four brothers and two sisters ranging in age from 25 to 38. All are living independently with the exception of one brother who is in prison. He described his family as stable financially and he was not exposed to any significant social disadvantage. He has also said that his childhood and family experience was “normal” and “okay” and he described having been a generally happy and settled child who had good family support, enjoyed close and stable attachments to his parents and enjoyed the various aspects of his life like school and sport.

20. Mr Haouchar's father passed away towards the end of last year. He described his mother as being a dedicated parent who was supportive, loving and nurturing. Mr Haouchar said that he had always enjoyed close relationships with his siblings who remained supportive of him. Two of his brothers have been involved in the criminal justice system for violence and firearms related offences. His younger brother is currently in the high risk management unit at the Goulburn Correctional Complex.

21. Mr Haouchar has said that his behaviour and functioning began to deteriorate as he moved into high school and he attributed this to his associating with older and delinquent youth who were a negative influence on him. He attended Arthur Phillip High School and recently told a community corrections officer that he was suspended and ultimately expelled for truanting, aggression and fighting.

22. Mr Haouchar's first encounter with the criminal justice system occurred when he was charged with offences including assault occasioning actual bodily harm, aggravated break enter and commit felony, and damaging property at the age of 13. Over the next couple of years there were non-custodial outcomes in the Children’s Court for these offences and others including robbery in company, assault, and intimidating a police officer in the execution of the officer’s duty.

23. On 7 March 2002 (aged 15) Mr Haouchar received his first custodial sentence: a total effective control order of 15 months with a non-parole period of 8 months for offences of robbery whilst armed with an offensive weapon, obtaining money by deception (x3), robbery, detaining for advantage, robbery in company, stalking/intimidating and being carried in a conveyance taken without the owner's consent.

24. The non-parole period for the above matters expired on 19 August 2002, although it appears that he was discharged on 26 July 2002 pursuant to s 24(1) of the Children (Detention Centres) Act 1987 (NSW).

25. From 27 August 2002 until 12 May 2003 Mr Haouchar committed offences of break enter and steal (Parramatta High School on 27 August 2002); robbery in company (Harris Park TAB on 21 April 2003); robbery in company (Silverwater BP service station on 7 May 2003); manslaughter (Mr Matthew Hughan on 8 May 2003); and aggravated robbery (Granville TAB on 12 May 2003). The manslaughter offence involved Mr Haouchar and three others, Ahmed Dib, Georgeus Kari and Jamal Hamid going to the home of the deceased in the early hours of the morning. Mr Dib was armed with a police baton and Mr Haouchar had a pistol with which he intended to menace the deceased in order to intimidate him into "shutting down" his drug dealing business. He gave the pistol to Mr Kari while he attempted to kick down the door to gain entry. There was an argument and a scuffle after gaining entry in which both Mr Dib and Mr Haouchar assaulted the deceased. Mr Kari panicked and fired the pistol; the deceased was struck in the chest by a single bullet and died soon after.

26. Mr Haouchar fled to Lebanon to avoid the "heat" on 14 May 2003. He returned on 27 August 2003. On 24 September 2003 he committed an offence of robbery whilst armed (Orchard Tavern, Chatswood). He was arrested following that offence.

27. All of the above offences were dealt with by the Children’s Court in one instance, various District Court judges and, in respect of the manslaughter offence, by Hidden J in this Court on 23 September 2008: R v Kari; R v H; R v Hamid [2008] NSWSC 993. His Honour imposed a sentence of 6 years. Together with the sentences imposed in the other courts, there was a total effective sentence of 11 years 3 months and 1 day with a non-parole period of component of 7 years 9 months and 1 day. Mr Haouchar became eligible for release on parole on 23 June 2011.

28. Whilst serving those sentences there was more offending and more sentences, although they were ordered to be served concurrently. On 4 May 2004 a 3 month control order was imposed for an offence of destroying or damaging property. On 13 December 2004 a 12 month control order was imposed for four offences of assaulting a law officer (not being a police officer) committed on 15 March 2004. On 16 February 2012 a 4 month sentence was imposed for the possession of a drug in a custodial environment.

29. Mr Haouchar was released on parole on 22 March 2012. He was then 25 years of age and had not been at liberty since the age of 17.

30. On 27 November 2012 at Punchbowl Mr Ali Hachem Eid and Mr Mohammed Hannouf, both of whom were involved in drug supply, were shot multiple times by two unknown masked men. On 24 October 2014 Mr Haouchar was charged with murder and shoot with intent to murder. This is the matter in respect of which the Crown accepted pleas of guilty to being an accessory after the fact in June 2018. The facts tendered on sentence simply indicated that Mr Haouchar assisted the offenders by taking away their clothing and disposing of it.

31. On 9 December 2012 Mr Haouchar was arrested in the company of the alleged national leader of the Comancheros OMCG (Mark Buddle) at Hope Island in Queensland in respect of firearm offences concerning a shooting incident in Guildford on 21 July 2012 and for breaching parole conditions. He was returned to Corrective Services custody to serve the balance of his parole until 23 December 2014.

32. The sum total of Mr Haouchar’s custodial history is that he had just spent under 17 years in custody by the time of his release in June 2018 from a time he was aged 15 until the age of 32 with only periods at liberty of about 13 months when he was aged 16-17 and 8½ months when he was aged 25-26. Rather surprisingly he currently professes to have adjusted to community life and has not suffered any adverse effects of being institutionalised.

Other allegations (s 9(3)(i))

33. The State provided information about other offences for which Mr Haouchar had been charged but not convicted. They were suggested to be worthy of consideration pursuant to s 9(3)(i) – “any other information that is available as to the likelihood that the offender will commit a further serious offence”. Given the outcome of these various matters I do not think it is appropriate to give them any weight.

34. The State referred to an attempted murder charge which was alleged to have concerned Mr Haouchar and an accomplice robbing a cannabis dealer. It was alleged that during the course of this Mr Haouchar shot the victim in the stomach and placed the gun against another man’s head. He was charged with wounding with intent to murder, maliciously inflicting grievous bodily harm with intent and two counts of robbery whilst armed with a dangerous weapon. On 8 September 2006 the charges were dropped after the victim failed to attend court and no evidence was offered. There is no principled basis upon which this matter may be taken into account in a manner adverse to Mr Haouchar who is entitled to the presumption of innocence.

35. On 9 December 2012 (when Mr Haouchar returned to custody for breach of his parole) he was charged with a number of firearms offences relating to a gun fight in a public street in Guildford on 21 July 2012. It was alleged that he was one of two men who exchanged gunfire across Broughton Street, Guildford at 4:45pm. A nearby car was struck in the crossfire – the car contained a man and his teenage son. A house was penetrated with bullets, one of which grazed a woman and others narrowly missed her young children. Mr Haouchar was charged with firing a firearm in a public place, firing a firearm at a dwelling house with disregard for safety, and discharging a firearm with intent to cause grievous bodily harm. The charges were withdrawn on 13 November 2013. Again, Mr Haouchar is entitled to the presumption of innocence.

36. On 26 June 2013 Mr Haouchar was charged with being an accessory to the attempted shooting murder of a female victim, Ms Hamze, on 9 March 2013. Mr Haouchar was back in custody by this time. It was alleged that the day after the shooting, one of the alleged offenders visited Mr Haouchar at Lithgow prison and had a conversation during the course of which he, the visitor, made admissions in respect of the shooting and Mr Haouchar assisted him by providing advice as to how to avoid apprehension. He was charged with accessory after the fact to attempted murder; concealing a serious indictable offence and participating in a criminal group. He was tried and found not guilty.

33. The acquittals must be respected but that does not mean that Mr Haouchar's conversation with his visitor, which was lawfully recorded, cannot be taken into account if care is taken not to infer guilt. To summarise, it is said that the conversation included the visitor speaking about the shooting the previous day; talking about swapping a firearm with some others; Mr Haouchar advising the visitor to get his house “cameraed up” for added security; the use of police scanners immediately after the shooting; Mr Haouchar advising the visitor to have an escape plan; offering the visitor money to effect his escape; and both talking about the possession of guns. In relation to the latter Mr Haouchar is recorded as having said:

“If I sold everything, even if we sold all the guns, I don’t know if we’ve still got them. Fuck, we gotta sell the guns for 150, 200 grand.”

38. In further conversation about guns Mr Haouchar spoke about having one when he was “out”:

“Haouchar:   Did my brother get the other five?

Visitor:      Oh I don't know, he hasn't got them yet. The only problem,

eleven bullets the other one.

Haouchar:   Seventeen.

Visitor:      No.

Haouchar:   Oh did he give you the ten?

Visitor:      Yeah holds eleven bullets.

Haouchar:   One of them holds seventeen.

Visitor:      You sure?

Haouchar:   Look at the back of it. How many numbers are on it?

Visitor:      It says ten yeah. Both of them say ten.

Haouchar:   You got the ten...

Visitor:      They both say ten. The one he has got says ten.

Haouchar:   You haven't got the seventeen clips?

Visitor:      Nah.

Haouchar:   I had the seventeen clips when I was out.

Visitor:      Who's got them now?

Haouchar:   I don't know bro.   

Visitor:      We need them. They're better.”

39. The State submitted that these conversations showed a number of things including that Mr Haouchar claimed to have access to a large amount of money; he had access to a firearm when he was out of custody on parole; he still associated with and advised (falling short of assisting as an accessory) people involved in violent crime; and generally that Mr Haouchar was unable to extricate himself from the lifestyle he had when committing the index offences in 2003.

40. Also said to be relevant under s 9(3)(i) of the Act was Mr Haouchar’s conduct whilst in custody. The State contended that the following examples of his conduct within the last several years shed light on his attitudes and anger management skills:

●   14 Dec 2015: threat to "explode" following removal of another person's TV from his cell. (This was followed by a related outburst on 14 Feb 2016);

●   1 Jun 2016: assaulted another inmate by punching him to the face;

●   8 July 2016: aggression towards a corrections officer and inciting numerous other inmates to act similarly by use of a single command;

●   4 Nov 2016: attempted to flush a contraband mobile phone down a cell toilet;

●   21 Jul 2017: poor attitude, aggressive behaviour and shouting at corrections officers;

●   2 Aug 2017: poor attitude ("moody and arrogant with staff") was noted;

●   18 Oct 2017: shouted aggressively at a nurse in the clinic;

●   3 Nov 2017: noticed to have another inmate cleaning his cell for him on a daily basis;

●   28 May 2018: threatened that he would "burn his cell down" if he was not able to do his washing more than once per week.

41. The State submitted that these incidents were inconsistent with Mr Haouchar’s recent claims that anger is no longer an issue for him owing to his maturity and learning from the Violent Offenders Treatment Program.

42. Dr Seidler said in her evidence that the intimidatory behaviour evident in the more recent breaches of prison discipline indicate that Mr Haouchar had not changed his "behavioural repertoire" strategies; they just were not as severe as they used to be. They remained relevant to predictions of future risk. Dr Ellis added that there had been an improvement in his behaviour since his early juvenile custody, but it was a matter of seeing whether such improvement could be sustained, particularly under circumstances of stress.

Compliance with supervisory obligations and likelihood of complying with an ESO (s 9(3)(f), (e2))

43. Aside from the period since his release on the good behaviour bonds three months ago, the only times when Mr Haouchar has been supervised in the community (as an adult) was in 2012 when he was on parole and now. Whilst on parole he committed the accessory after murder and accessory after shoot with intent to murder offences on 27 November 2012. He also breached his parole by travelling to Queensland where he was apprehended in the home of the alleged national president of the Comancheros OMCG. He admitted to one of the court-appointed experts that that was in fact his third trip to Queensland in breach of his parole.

44. Mr Haouchar’s response to supervision whilst on parole was considered “unsatisfactory” and “superficial”. He only attended two of his monthly sessions of the maintenance component of the Violent Offenders Treatment Program (VOTP). This is in contrast to his conduct during the course of the VOTP itself which he completed on 4 January 2012 shortly before being paroled. A report in respect of that program included that he was noted to be concerned about the impression he made on staff, in particular in regards to receiving negative case notes and the impact that this may have on his parole. He recently told a community corrections officer that "he got a lot out of VOTP, made him smarter".

45. As to the current period of supervision in the community, Mr Haouchar made his attitude clear in his meeting with his supervising Community Corrections officer on 22 August 2018. The officer's note states:

“Discussed Mr Haouchar’s understanding of supervision and his role and the role of supervising officer. He said he thought it was all bullshit and he reiterated that he had spent 3½ years in custody and did not think that anything was to be achieved by supervision. His demeanour and voice changed as he discussed this and his frustration at being subject to the bond was evident. Sought to question him further but he chose not to engage.”

46. Mr Haouchar had been told that for the first eight weeks of supervision under the bonds it was necessary for there to be weekly reporting. On the first occasion that he did not keep an appointment he explained that it was his birthday. Thereafter he failed to keep appointments on 31 July (he was having dinner with his mother), 7 August (he was stuck in traffic), 14 August (he was sick with the flu and had a sore neck) and 21 August (he was at a religious festival).

47. I note that Mr Ardasinski said in his evidence that "poor co-operation with supervision is a noted risk factor for repeat violence". His review of the OIMS notes by the present supervising officer led him to think of Mr Haouchar's engagement with supervision as, like it was in 2012, "superficial".

Questions as to Mr Haouchar’s current employment

48. A matter that is relevant to the risk of Mr Haouchar committing a serious offence of violence is his stability within the community. A part of his claim to having a stable lifestyle is that he has fulltime employment. That employment is said to be with his cousin, Mr Ahmad Diab, a director of a company called Nationwide Builders Pty Limited. There is evidence attached to an affidavit of Mr Haouchar’s solicitor which is designed to confirm the legitimacy of that employment. In a letter dated 16 August 2018 Mr Diab wrote that Mr Haouchar “commenced his employment in the capacity of a junior contract administrator assisting senior project managers from 25th of June 2018 to present day”. It is said that the employment is on a “fulltime basis”.

49. Senior counsel for the State referred to entries in the Offender Integrated Management System (OIMS) notes which relate to the employment issue. I note the following:

●   18.6.18 – Mr Haouchar said that he had potential employment with Mohammad Alameddine. The employment was in the building/kitchen industry and located at Guildford.

●   19.6.18 – A supervising officer made a telephone call to Mr Alameddine who said that he was willing to engage Mr Haouchar in employment and said there were “a couple of options” available and it would depend upon what the offender was suitable for and what to do. He said that he needed Mr Haouchar to come in and discuss which he may be suited for.

●   21.6.18 – In a telephone call with a supervising officer Mr Haouchar said that he had spoken to the proposed employer about his employment.

●   22.6.18 – In a telephone call Mr Haouchar complained about police having attended the residence of his employer who apparently lived with his elderly parents who did not speak much English and Mr Haouchar expressed concern that this may cause problems for his employment.

●   22.6.18 – In a face-to-face interview, Mr Haouchar told his supervising officer that he was going to commence his employment with Star Kitchens in about 3 weeks; he was having a month to get settled.

●   (25.6.18 – the date Mr Diab said Mr Haouchar commenced employment with Nationwide Builders Pty Ltd.)

●   28.6.18 – Mr Haouchar again expressed frustration that the police continued to visit his future employer's parent’s address claiming that they had attended 5 times now. Mr Haouchar was concerned about the impact this would have on his employment. Later in the interview Mr Haouchar confirmed that his position at Star Kitchens was all lined up although he has not worked out what part of the business he will work in yet.

●   5.7.18 – Mr Haouchar contacted his supervising officer to reschedule an appointment for that afternoon so that he would not have to leave work early in order to attend an appointment at 2pm.

●   5.7.18 – In the subsequent appointment that afternoon Mr Haouchar advised that he was no longer working for Mohammad Alameddine at Star Kitchens. He explained that the offer of employment was no longer viable after the police had attended the workplace several days in a row. He said that he was now working for his cousin Ahmad as site manager/labourer and said that his cousin wanted him to get involved in all areas of the business. He had not yet discussed payment and was unaware how much he would be paid but said he would provide payslips at his next appointment for verification purposes.

●   12.7.18 – Mr Haouchar said he was working in his cousin’s business. The officer gave him the option to report after work but Mr Haouchar said that he could leave work at any time so he agreed to commence initial weekly reporting at 1pm the following week (23 July).

●   24.7.18 – Mr Haouchar confirmed that he was currently working for Nationwide Builders as a resources manager and the owner of the business was Ahmad.

●   1.8.18 – In a weekly meeting with his supervising officer Mr Haouchar claimed that he was working and needed to get to the Community Corrections office after work and so it was agreed that he would report each week at 5.30pm. Mr Haouchar told his supervising officer that he was working as a resources manager which entailed him organising trades people to be available for different work sites and to ensure that the jobs were done on time and to a decent standard.

●   14.8.18 – the supervising officer received an email from somebody at Nationwide Builders with four payslips for Mr Haouchar annexed; they being for 23 and 30 July and 6 and 13 August.

●   17.8.18 – the supervising officer received an email from Mr Haouchar’s solicitor enclosing documentation confirming the employment details that was similar to what was annexed to the solicitor’s affidavit.

●   22.8.18 – Mr Haouchar phoned his supervising officer to explain why he had not attended an appointment the previous day. In the course of this he said that he had spoken to his boss to not give him any work on 22.8.18 and he could therefore report at any time. They agreed for Mr Haouchar to attend at 1pm.

●   22.8.18 – In a face-to-face meeting with his supervising officer the officer indicated that he had received documentation in relation to Mr Haouchar’s employment. Mr Haouchar is recorded as having said that his employer had given him two hours off to report that day which the officer noted contradicted what Mr Haouchar had said that morning about being given the day off. Mr Haouchar told the officer that he was very busy at work which he (Mr Haouchar) thought was a good thing. At the conclusion of the interview Mr Haouchar said that he could report the same time next week as he had that day (that is at 1pm).

50. Senior counsel for the State pointed out that it was inconsistent with the employer saying that Mr Haouchar’s employment with Nationwide Builders commenced on 25 June 2018 when only three days prior to that date Mr Haouchar was telling his supervising officer that he was going to commence his employment with Star Kitchens about three weeks hence. Then, on 28 June 2018, three days after the employment with Nationwide Builders was said to have commenced, Mr Haouchar confirmed with his supervising officer that his position at Star Kitchens was “all lined up”.

51. Reference was also made to a number of payslips that were annexed to Mr Haouchar’s solicitor’s affidavit. The earliest was one dated 23 July 2018. It is said to be for the pay period 16 – 20 July 2018. It indicated a weekly base salary of $948 for that period and a year to date total base salary of $1896. That, of course, indicates that this pay period was only the second for the financial year which would mean that there was only one week of employment in the preceding 15 days.

52. It is also difficult to reconcile Mr Haouchar being in fulltime employment with the various occasions noted in the OIMS notes where he was elsewhere during the day (e.g. vising a brother in prison; attending a religious festival) and also the fact that he was able to take a two and a half week trip overseas. There is also the fact that Mr Haouchar had been able to see a psychologist, Ms Josie Wakim, on three occasions since 23 July 2018, all during working hours and at her rooms in the Sydney CBD.

53. The submission that was made by senior counsel for the State was that being in employment was regarded by the experts as being a protective factor in relation to the risk of further offending but it is difficult to have confidence that Mr Haouchar is in fact engaging in fulltime employment as he claims. Mr Johnston SC, on the other hand, submitted that an effort had been made to provide evidence in relation to the issue but it has not been investigated by the authorities. Mr Winder, the supervising Community Corrections officer, said that he had received documentary material in relation to the issue; he accepted it; and he did not require anything further.

Mr Haouchar's financial circumstances

54. It emerged during an examination of the evidence relating to Mr Haouchar's employment that there is also a potential question about his financial circumstances.

55. Senior counsel for the State observed that the pay slips indicate a net pay of $948 per week. It was difficult to reconcile this with Mr Haouchar (a) living alone in a two bedroom apartment and paying $750 per week rent and (b) being able to afford return business class flights to Lebanon. However, Mr Haouchar is recorded in an OIMS note of 22 June 2018 as having said that he was not in receipt of government benefits because his family was providing for him; money was not an issue; his extended family were successful in their businesses and they looked out for one another.

56. It is difficult to know what to make of this without any documentary evidence on the subject of Mr Haouchar's financial situation.

Update

57. The foregoing section of this judgment ([43]-[56]) was written at a time when it was expected that Mr Haouchar would be returning from overseas on Friday 14 September 2018. The fact that he has chosen to remain overseas confirms his attitude to supervision as expressed to his Community Corrections officer ("it was all bullshit"); makes a mockery of claims to having stable legitimate employment; and casts serious doubts about the legitimacy of his financial resources.

Court-appointed experts’ opinions (s 9(3)(b), (d))

Dr Andrew Ellis

58. Dr Andrew Ellis is a forensic psychiatrist. He was briefed with a large volume of documentary material and had a two hour clinical interview with Mr Haouchar on 24 July 2018.

59. Dr Ellis considered that Mr Haouchar met the criteria for antisocial personality disorder which he described as a chronic and pervasive disorder, although it can ameliorate over decades. He thought there was some evidence of Mr Haouchar’s personality style maturing but said, “This is early and by his self-report alone”. He considered that time in the community engaged in positive interpersonal relationships is necessary to achieve medical certainty about Mr Haouchar’s maturity. He also considered that the institutional offences shortly before his release indicated that he had difficulty controlling impulsive behaviour at times.

60. Dr Ellis used the Psychopathy Checklist-Revised (PCL-R) clinical tool and concluded that Mr Haouchar would not be considered a psychopath. The highest score he achieved was more likely a reflection of his antisocial personality.

61. Dr Ellis made reference to the HCR-20 V3 structured professional judgment tool although he noted the shortcomings of this and similar tools. He counselled that "no tool specifically assesses for serious violent offending which could or does result in significant injury or legal consequences".

62. Dr Ellis noted that much of the reported violence in Mr Haouchar’s history was related to disputes and was instrumental to aid in acquisitive crime in company with antisocial peers. He noted the poor employment record and continued aggression in custody, and remarked:

“He has a diagnosis of antisocial personality disorder, and likely persistent attitudes supportive of violence across his lifespan (evidence by weapon use for some offences and threatening violence in his charges).”

63. Dr Ellis found no evidence of mental illness or exposure to trauma contributing to the risk of violence but he noted that Mr Haouchar:

“… currently displays impoverished insight into his propensity for violence and understanding of need for treatment and management. He does indicate an intention to accept treatment and has attended to interventions offered to him in the past. Sustained insight that motivates long term change is yet to be demonstrated.”

64. Dr Ellis identified that contact with organised crime or conflict with authority would likely be significant stressors for Mr Haouchar and it was unclear how he would deal with this. Dr Ellis continued:

“This indicates at least a moderate and possibly high need for professional services and plans to contain the potential for violence. He is still relatively young indicating that maturity has yet to impact on reducing risk.”

65. When considering the type of violence that Mr Haouchar may engage in, Dr Ellis formed the view that victims were likely to be adults, either known to him or strangers, and, given his history of using weapons, the chance of violence escalating to a serious level is foreseeable. Law enforcement officers and inmates (should he be in custody) were thought to be at particular risk.

66. In summarising the level of risk Dr Ellis wrote:

“In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Haouchar would fall into a group of persons with a risk for violent offending that is statistically moderate-high in frequency with potential for serious consequence in his specific case, and more than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.”

67. Dr Ellis supported the making of a supervision order as opposed to a detention order. He recommended an order for two years, noting that personality disorders are chronic-relapsing conditions and are resistant to treatment and rehabilitative efforts.

Dr Katie Seidler

68. Dr Katie Seidler is a forensic psychologist. Like Dr Ellis, she was also briefed with the large volume of documentary material. She interviewed Mr Haouchar for almost two and a half hours on 17 July 2018 and he completed psychometric testing over a further one hour and twenty minutes.

69. Mr Haouchar told Dr Seidler that he adjusted well to being in the community and he apparently took some pride in telling her that he now had everything that he needed including a stable apartment and a productive routine. Dr Seidler noted that this was the first time that Mr Haouchar had lived independently in the community and she said he claimed to be enjoying it as well as coping well generally.

70. Mr Haouchar acknowledged to Dr Seidler his history of violence and described much of it as having been instrumental in nature, either as a function of achieving his goal in an offence scenario, like an armed robbery, but he also described how he would engage in acts of violence as a means of achieving status and “social capital” amongst his peer group where aggression, violence and exaggerated displays of masculinity were prized. She noted that he denied any particular problems with the experience or regulation of anger when in the community. However, in gaol, he acknowledged that he can experience intense anger and this is often triggered by perceived injustices, being treated poorly by people in authority or being frustrated by the limits imposed on him. He told Dr Seidler that he did not believe that anger was an issue for him any longer which he attributed to maturity, being out of the prison environment and having learned from psychological treatment over the years.

71. Dr Seidler summarised her opinions as to Mr Haouchar as follows:

“In sum, Mr. Haouchar is now an adult who has a serious history of violence and crime, commensurate with an antisocial personality structure and lifestyle. Violence, crime and the antisocial subculture was his way of life and his source of identity for many years. However, to his credit, Mr. Haouchar is changing and he has been doing so for some time. The process is slow and has required professional intervention and continued learning experiences for him, such as failing on parole. It is my opinion that Mr. Haouchar has made many positive changes that work to reduce his dynamic risks for future offending and thereby also his risk to the community. Further to this, his identity is also going through a process of change and reinvestment, which is essential for true desistance to occur. As part of this process, violence and crime are no longer exciting for Mr. Haouchar and he has a more realistic appraisal of the nature of antisocial peer connections and their influence on him. He also has a greater awareness of his responsibility in generating, coping with and avoiding high risk situations. All of this is important and should be nurtured so that Mr. Haouchar can continue the process of positive change.

Despite the aforementioned positive changes, Mr. Haouchar's capacity to cope with the intensity of high risk situations is still developing and to this end, he will need support and professional intervention, especially in the community where he will be more at risk due to the lack of structure and supervision. Hence, Mr. Haouchar continues to be a high risk and high needs individual, who will require a greater level of supervision, support and intervention when compared to other offenders on community-based Orders. Even so, I note Mr. Haouchar's frustration with the criminal justice system and his desire to separate from this and the restrictions that this places on him. Therefore, there will need to be a careful balance between protecting the rights and needs of the community and not working to increase Mr. Haouchar's risk by placing too much pressure on him, as his coping ability remains fragile and largely untested.”

72. Dr Seidler’s report then discusses her assessment of risk and the various methods she employed in that regard. She concluded this important aspect of her task as follows:

“Summary - Taking into account the aforementioned assessments of risk, it is my opinion that Mr. Haouchar poses a High risk of future violence. The primary contributors to this risk are his criminal and violent history, in addition to his previous antisocial peer connections and antisocial lifestyle, which was associated with hedonism, impulsivity, irresponsibility and an antisocial personality structure. Obviously, these are generally past factors. To his credit, Mr. Haouchar does impress as making changes in these areas and these changes are important and should be nurtured and supported. These changes, along with the presence of protective factors, may, at best, attenuate Mr. Haouchar's risk to the moderate level. However, given his lack of independent community experience to date, Mr. Haouchar has not yet had the opportunity to prove to authorities that he is able to successfully negotiate the challenges of independent living, which will bring him into contact with risks. It is my opinion that the most significant risks for Mr. Haouchar will be returning to an association with antisocial peers, withdrawing from his investment in a prosocial and structured routine, returning to hedonistic pursuits and being lax with his commitment to self-management and the active management of risk situations. To this end, although Mr. Haouchar has the potential to pose a medium risk of future violence, with the added hope that this would continue to attenuate over time, at present, it is my view that this remains a potential and that the evidence would suggest that his risk is high currently, although this risk is chronic and stable rather than being acute. Further, that with appropriate support, supervision and intervention, Mr. Haouchar may work to achieving his potential and maintaining a chronic level of risk at the medium level, which allows him to live his life independently and participate in the community actively.”

73. A short time later when asked to describe the level of risk and the factors that contribute to that risk Dr Seidler wrote:

“Mr Haouchar has been assessed as posing a Moderate-High Risk of future serious violent offending. The moderate risk rating would be the optimal potential level for Mr Haouchar at present but without proven experience, it is my assessment that Mr Haouchar’s risk remains in the High range, as he is yet to demonstrate that he is able to successfully navigate risk situations without relapsing.”

74. Dr Seidler did not believe that a continuing detention order was warranted but believed that an ESO would be appropriate and would serve to allow Mr Haouchar to access an increased level of support, supervision and intervention in the community as he worked to cement the changes he is already making.

Risk Assessment Report (s 9(3)(c), (d))

75. Mr Samuel Ardasinski, a senior psychologist with Corrective Services NSW, prepared a Risk Assessment Report dated 3 September 2014. He used the Violence Risk Scale (VRS) which gave the result that Mr Haouchar was in the High range of risk of reoffending. He provided a Supplementary Risk Assessment Report dated 3 August 2018. Applying the VRS again yielded the result that Mr Haouchar was in the High Risk range. He also used the Violence Risk Appraisal Guide – Revised (VRAG-R) which put Mr Haouchar into the highest category compared to other violent offenders in terms of the risk of future violence.

76. In his 2014 report Mr Ardasinski ranked in order of importance a number of dynamic risk factors as relevant, or potentially relevant, in considering Mr Haouchar's risk of violent re-offending. The first four factors were:

1. Criminal peers. "His proximity to other violent criminals will necessarily increase his risk of engaging in, or being incriminated in, further acts of serious violence in the community."

2. Work ethic. "Should his avenues be limited in the future with regard to legitimate employment, or he earns what he perceives to be insufficient money from same, Mr Haouchar would be at risk of engaging in criminal enterprise to fund his lifestyle."

3. Criminal attitudes. "It is considered that carelessness in respect to his behaviours when they involve minor breaches of conditions or the law, or 'lapses' in his risk management, may in turn culminate in a relapse involving Mr Haouchar's further involvement in serious violent crime if these minor infractions coincide with criminal peers and weapons possession."

4. Weapon use. "While Mr Haouchar denied any ongoing criminal activity on his part whilst on parole, any associations with peers who are in possession of firearms or other lethal weapons would necessarily increase Mr Haouchar's risk of being involved in further acts of serious violence."

77. At the conclusion of a discussion of Mr Ardasinski’s assessment the written submissions for the State concluded:

“Overall, and having regard to the matters addressed in the reports, which the Court is bound to consider pursuant to ss.9(3)(c) and (d), it is apparent that the same risks as were present in 2014 are still present to a significant degree. The opinions expressed by Mr Ardasinski are consistent with those of the court-appointed experts, namely that the overriding concern is to ensure a detachment from the familiar milieu conducive to the re-establishment of criminal associations, by ensuring the defendant lives in accommodation that is less likely to allow contact with previous associations, works in an environment that is removed from such influences, both combined with relatively intensive supervision to detect and discourage association with negative criminal peers.”

Views of the sentencing court at the time the sentence of imprisonment was imposed upon the offender (s 9(3)(h1))

78. The remarks on sentence by Hidden J when sentencing Mr Haouchar on 23 September 2008 for the offence of manslaughter and 15 June 2018 when sentencing for the accessory after the fact offences were included in the material tendered by the State but there is nothing of particular significance within them. If anything, they are misleading in that they include conclusions drawn by his Honour on the basis of material that was far less extensive than that which is before the Court on this application. There is also a question about the accuracy of the history provided by Mr Haouchar to the author of a psychological report that was before his Honour.

Treatment or rehabilitation programs (s 9(3)(e))

79. The most notable treatment program Mr Haouchar has engaged with in the past that is of present significance is the VOTP which he commenced in custody on 8 March 2011 and completed on 4 January 2012. The treatment report dated 2 February 2012 concludes:

“Despite some fluctuations in his behaviour, Mr Haouchar made a number of treatment gains during his time in the program. Overall Mr Haouchar was an active and engaged participant in the VOTP, and he was diligent and motivated in regards to all group work. He made a notable improvement in his interpersonal skills, in particular in his assertive communication skills, as well as in his general self-regulation. Through the program he was also able to gain insight into the context in which his violent offending behaviour has occurred and the factors which have contributed to this. Mr Haouchar demonstrated a sound understanding of the way in which his thoughts, feelings and underlying beliefs have contributed to his violent offending, and identified appropriate strategies to counter and manage these in the future and made ongoing efforts to implement and practice this during his time in the program. He gained and demonstrated his insight into the negative consequences associated with his anti-social behaviour and identified how his actions impacted on his primary, secondary and tertiary victims. He has also developed an awareness of his risk factors as well the internal and external warning signs for these, and has developed a comprehensive relapse prevention plan to assist him in managing and minimising these risks in the future.”

80. The recommendations that followed included that Mr Haouchar should participate in VOTP maintenance in the community. It has been mentioned earlier that he was far from committed, let alone successful, in that respect (see above at [44]). Mr Ardasinski noted that while Mr Haouchar was released on parole in March he did not attend any VOTP-M sessions until 11 September 2012 and then only once again, on 4 December 2012, five days prior to his return to custody. He maintained in an interview with Mr Ardasinski in 2014 that he sought to participate in the VOTP-M willingly, while Mr Ardasinski noted that the reports of the program facilitators indicated that he was largely disengaged and was not participating to an acceptable level.

81. Dr Seidler's report includes a detailed history provided by Mr Haouchar of programs he had completed in gaol in relation to anger management, anti-violence and psychological treatment. In addition to the VOTP there were programs called CALM ("Controlling Anger and Learning to Manage it), Think First, and Managing Emotions. He described to Dr Seidler the VOTP being the most effective and beneficial. He said he is more self-aware now; more cognisant of his unhelpful patterns of thinking; he is better able to consider the consequences of his actions for himself and others and this helps him to make more careful decisions. He said he was able to "see the bigger picture" and to "see where this is going" so that he can be a "wiser, smarter person" and make better decisions, especially those that avoid violence and crime.

82. Dr Seidler noted, however, that Mr Haouchar found it difficult to easily recall his relapse prevention plan and he claimed that he has not kept any of the treatment documentation from his time in the VOTP. She considered this to be a concern in terms of future risk management and recommended that he work with a psychologist to redo this in concrete and specific terms so that he may refer to it in the future.

83. Dr Seidler considered that Mr Haouchar had not yet been back in the community to have yet experienced any acute challenges in relation to risk. She was concerned that he "is able to talk the talk" but she was not convinced that he can "walk the walk".

84. Mr Haouchar has been seeing Ms Josie Wakim, psychologist, and a report by her dated 20 August 2018 was tendered in Mr Haouchar’s case. Mr Johnston SC made it clear that the report was not relied upon other than to show that Mr Haouchar had engaged the services of a psychologist.

85. Ms Wakim gave evidence that she had seen Mr Haouchar on 23 and 27 July and on 16 August 2018. She said in her report that she had engaged with Mr Haouchar on a 12-week treatment plan and it was her expectation that she would see him for a 1-hourly session each week over that period. She gave evidence that each appointment was during normal working hours (one of the questions that has been raised about Mr Haouchar being in fulltime employment). The point was made in cross-examination of Ms Wakim that she had seen Mr Haouchar for the third time on 16 August, she had written her report on 20 August, and she had not seen him since. His commitment to this treatment plan remains to be seen.

Risk Management Reports and other Community Corrections evidence (s 9(3)(d1), (e1))

86. The State tendered a Risk Management Report by Ms Julie Bates, Unit Leader of the ESO team dated 18 September 2014 which was prepared for the application made in 2014. It addresses the extent to which Mr Haouchar could be reasonably and practically managed in the community.

87. There is a more up to date appraisal by Ms Janelle Farroway, High Risk Offender Applications and Operational Governance Officer of the ESO Team. Some of the content of these reports will be discussed later.

Mr Haouchar’s current legal constraints

88. Mr Haouchar is the subject of the good behaviour bonds imposed by Hidden AJ on 15 August 2018. The conditions of the bonds are that he be of good behaviour and that he accept the supervision and guidance of Community Corrections. In addition Mr Haouchar has been served with a firearms prohibition order and a weapons prohibition order as well as having been given a pre-emptive consorting warning in respect of 14 nominated people with criminal histories. His supervising Community Corrections officer had issued him with a formal written direction in relation to outlaw motorcycle gangs and organised criminal networks. He cannot have any contact with members and associates of such organisations without prior approval and nor can he visit premises associated with them et cetera.

Consideration

89. The evidence points strongly to the conclusion that there is a high degree of probability that Mr Haouchar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

90. Frequency of violent conduct is not so much the concern. The descriptions of past offending indicate that it is the gravity of the conduct, and of the consequences, which are the major contributors to the unacceptability of the risk. As Dr Ellis put it:

“A consideration of the type of possible violent offence should be considered in an estimation of risk. In the case of Mr. Haouchar, given the past pattern of serious violence, victims are likely to be adults with whom he has some interaction and conflict, but can also include strangers in the context of an acquisitive offence. Law officers with whom he must interact, and inmates are at particular risk. The history of using weapons renders the chance that violence he engages in could escalate to a serious level where physical injury is foreseeable.”

91. While it may be the case that Mr Haouchar has gained in maturity and in insight as to how to avoid situations of risk in the future, there is presently insufficient evidence to provide confidence that this is so. After having lived in a highly controlled environment for an extended period of time, the test for Mr Haouchar now is to demonstrate appropriate and safe responses by him to situations of stress.

92. Maturity and insight into controlling emotions such as aggression are not the complete answer to the perceived risk either. The more serious instances of Mr Haouchar's past involvement in crimes of violence have not all been reactive to events that arise with little warning, although some have. The manslaughter occurred in the context of a planned and armed confrontation of a drug dealer. The cluster of offences committed at around the same time involved robberies with offensive or dangerous weapons. The most prominent dynamic risk factors identified by Mr Ardasinski were criminal peers, work ethic and criminal attitudes. These are not factors that necessarily dissipate with maturity and a greater capacity for self-regulation.

93. Senior counsel for Mr Haouchar emphasised that the index offence of manslaughter occurred 15 years ago. It is undeniable that this is of some significance. However, s 5B(d) requires a consideration of the risk that Mr Haouchar presents now. Being in custody for the vast majority of the intervening period has done much to quell any opportunity for serious violent offending. Each of the experts made independent assessments in which they have concluded that there remains a significant level of risk. They were not challenged in that regard. There is also the diagnosis of Mr Haouchar having (currently) an antisocial personality disorder which was described as chronic, pervasive and treatment resistant.

94. Mr Haouchar's adverse disciplinary record in the custodial environment is also a significant matter. Dr Ellis said that it suggested a difficulty in controlling his impulsive behaviours. Dr Seidler said that Mr Haouchar's immersion in the gaol subculture further cemented his antisocial attitudes, behaviours and alliances and this was reflected in his continued offending and aggression while in custody. Mr Ardasinski identified violence during institutionalisation as a key risk factor.

91. I am not satisfied that Mr Haouchar has demonstrated, in the three months he has been at liberty since having been sentenced by Hidden AJ, that his risk of serious violent offending has ameliorated. The experts were each of the view that the period of time is inadequate to make any prediction. Moreover, there is little evidence beyond self-reports by Mr Haouchar to the experts and to his supervising Community Corrections officer. There are questions as to his employment and his financial situation. The assertion in the written submissions that Mr Haouchar "is attempting to start afresh" and "has taken active steps to reintegrate himself into the community" are more based upon self-reports than upon objective evidence.

92. In addition to the time that has elapsed since the index offence of manslaughter (and the fact that it occurred at a time when Mr Haouchar was aged 16), it was also submitted that this offence was "towards the lower end of objective seriousness for offences falling within the definition of a 'serious violence offence' ". However, the offence involved Mr Haouchar bringing a handgun to a premeditated confrontation of a drug dealer by himself and three co-offenders; this suggests a significant level of criminality.

93. There is some force as well in the contention of counsel for the State that, as Dr Seidler put it, Mr Haouchar is prepared to "talk the talk" but not "walk the walk"; in other words he will say things but not follow through with them. He told Hidden J when sentenced in 2008 that he had changed and matured. Subsequent events such as the 2012 accessory after murder and attempted murder offences and the conversation in gaol in 2013 about firearms indicated that any maturity had not been reflected in avoidance of serious violent criminality. The State also pointed to the list of institutional infractions since 2008.

94. Similarly, there is Mr Haouchar's propensity for deception as discussed by Dr Ellis. One example is that Mr Haouchar denied a history of drug addiction, saying that anything that appeared in reports provided to sentencing courts that suggested this was untrue; it was the product of him having been told that it was a useful deceptive ploy to provide such a history with a view to getting a more favourable sentencing outcome. Senior counsel for the State also referred to Mr Haouchar signing up for a 12-week treatment plan with the psychologist, Ms Wakim, but then seemingly abandoning it after she had written a report for the purposes of these proceedings.

95. Another instance relevant to this issue is the history Mr Haouchar provided to a psychologist whose report was tendered in the sentence proceedings before Hidden AJ in June this year. Mr Haouchar was reported to have said that he "benefited greatly from the VOTP and maintenance program when released from prison in early 2012". His Honour was led to observe (R v Haouchar [2018] NSWCCA 885 at [13]):

"Some years ago, prior to his release after a period of custody, he completed a Violent Offenders Treatment Program and was involved in a maintenance program after his release on that occasion. Mr Borenstein reported that he described that program “in very positive terms.” He had also participated in other rehabilitation programs, including drug and alcohol courses."

100. A more complete and not quite so positive description of Mr Haouchar's experience with the VOTP and its maintenance program appears above (at [44], [78]-[79]).

101. Counsel for the State submitted that Mr Haouchar's self-reports of what he will and will not do are unlikely to be accurate because of (a) the lack of independent evidence to support it, and (b) the history of deception of which the above are examples.

102. Senior counsel for Mr Haouchar referred to Dr Ellis drawing attention in his report to the fact that risk assessment techniques in behavioural science do not enable a precise assessment to be made in relation to a particular individual. That is true. But the legislature requires a court considering an application such as this to have regard to "the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence": s 9(3)(d). It is just one of the various matters that are required to be taken into account. Moreover, it is clear that the results of actuarial statistical assessments have not constrained the experts in the exercise of their own clinical judgment.

103. I am not persuaded that there is any jurisdictional impediment to the making of an ESO as there was perceived to be in the case of the interim orders considered and refused by Button J on 27 June 2018. By the amendment to s 10C by the 2014 amendment Act it can be seen that Parliament contemplated that there might be a delay between the filing of a summons and final orders being made. Delay might provide a reason to refuse an application on a discretionary basis, or it might provide an offender an opportunity to demonstrate that he or she does not present an unacceptable risk of serious offending. However, the primary question is whether the criteria in s 5B of the Act are established by the plaintiff. It does not provide a basis to dismiss the application in this case because there is an ample explanation for the period that has elapsed; in short, the State was hamstrung in pursuing the matter because it did not have any utility until such time as Mr Haouchar was back in the community.

104. The fact that Mr Haouchar is currently subject to the supervision of Community Corrections for a two-year period is not a reason to decline to make an ESO if the statutory conditions for making such an order are established. The circumstances of the two types of supervision are quite different. Far more resources are available and are devoted to supervision of high risk offenders than to offenders the subject of good behaviour bonds. The types of conditions that may be imposed and the directions that may be given can be more focussed upon the criminogenic needs of the individual. The simple fact that the present offender can choose to travel overseas for as long as he likes is just one example of how relatively benign the present supervisory regime is.

105. The fact that Mr Haouchar is also the subject of firearms and weapons prohibition orders, a non-consorting warning, and a direction not to have contact with OMCG or OCN members does not provide adequate protection for the community against the high risk of serious violent offending he presents. In saying that I do not overlook the additional deterrent effect that these provisions may have.

106. In conclusion, I am satisfied to a high degree of probability that Mr Haouchar poses an unacceptable risk of committing another serious offence if he is not kept under supervision.

Update

107. The foregoing ([89]-[106]) was written after judgment was reserved but before being advised of Mr Haouchar's failure to return to Australia. I have left it intact in order to show my reasoning and conclusion as to the making of an ESO based upon the material presented to me at the hearing. It now seems likely that what the various experts have said about the case might require reconsideration in light of Mr Haouchar having fled the country. When he does return, if ever, it may mean that the State would seek something other than just the two-year ESO that it presently seeks.

108. The possibility of Mr Haouchar not returning, and how the Court should proceed if he does not, was canvassed at the hearing. Senior counsel for the State submitted that I had no power to make an ESO and defer its commencement until Mr Haouchar returned to the jurisdiction. (With respect, that is correct – see s 10(1) of the Act.) Rather, she submitted that I should proceed to determine the matter in the usual way and that I should not defer doing so because that might provide a further incentive for Mr Haouchar not to return.

109. Senior counsel for Mr Haouchar indicated in the course of his submissions the following:

“JOHNSTON: In terms of the timing of it all, I can say this much. My instructions are that Mr Haouchar has been informed that the State takes the attitude that he will be in breach of the order, if the order was made, and that he was not in the jurisdiction and that's been communicated to him.

I think, at the moment, if there is some prospect that an order is not going to be made before Monday of next week, that can be communicated to him. That seems to alleviate any immediate issues that I could see possibly arising about him being inadvertently in breach of the Act.

HIS HONOUR: I'm not sure I follow. If an order is not going to be made, that would be communicated to him?

JOHNSTON: Well, I will ensure my solicitor, who communicates to him, that it is likely that an order will be made some time shortly after the 14th. And if that is understood by him, then that would mean--

HIS HONOUR: If he is not back?

JOHNSTON: If he is not back, then he understands the risk.”

110. In these circumstances I have resolved to hand down judgment as I normally would have and that will occur on Tuesday 25 September 2018. The judgment will be uploaded to the internet on the New South Wales Caselaw website on the morning of that day. There will be one further condition added to those proposed by the State: that Mr Haouchar is to report to the Unit Leader on duty at the Blacktown Community Corrections Office at Level 1, 13 Kildare Road, Blacktown NSW, by 4.00pm on Friday 28 September 2018 (Condition 55).

Conditions

111. Senior counsel for Mr Haouchar submitted that if an ESO was to be made, some of the conditions in the Schedule to the amended summons should not be included because they were either inappropriate and/or they were not directed at addressing the perceived risk to the community.

Electronic monitoring and provision of a schedule of movements (Conditions 5 to 9)

112. These conditions were opposed on the bases that (a) Mr Haouchar has demonstrated that they are not required; (b) an electronic monitoring anklet is intrusive when worn all of the time; and (c) there is a stigma associated with wearing an anklet. Reference was also made to observations made by Dr Seidler in her report in which she said there was little therapeutic benefit in electronic monitoring; it was not necessary in managing Mr Haouchar's risk; and there was a concern of resistance on his part because of the stigma and adverse attention he might attract.

113. Dr Seidler described the question of whether there should be imposed a condition of electronic monitoring as a "delicate balancing act". On the one hand it would help promote prosocial activities (employment for example) that would help in addressing some of Mr Haouchar's dynamic risk factors in relation to reoffending. On the other hand, there is the risk of provoking an antisocial response.

114. Both Dr Ellis and Mr Ardasinski considered that electronic monitoring would serve a useful purpose. Dr Seidler even ventured that she could "see the value in him being accountable to the system that supervises him". Dr Ellis said that "the other issue particular to Mr Haouchar has been deception and so monitoring may provide some ability to detect deception earlier in this case". Dr Seidler agreed.

115. Mr Haouchar has demonstrated a level of defiance in his response to supervision in the past by his attitude of complying to the minimum degree possible. His attitude was exemplified by his recent remark to his supervising officer that he thought supervision was "bullshit" and that he did not think that anything was to be achieved by it. Both of the objects of the Act (ensuring the safety and protection of the community and encouraging Mr Haouchar to undertake rehabilitation) would be served by including conditions of electronic monitoring and the provision of a schedule of movements.

Accommodation (Condition 10)

116. Objection was taken to a proposed condition that Mr Haouchar reside at an address approved by his Departmental supervising officer. He is presently living in a rented apartment in a Sydney suburb. He had initially proposed living at his mother's home but it had been the scene of a drive-by shooting in the past so it was not approved. Then he proposed living in a suburb in southern Sydney but it was not approved because it was a place associated with OMCG activities. No investigation had been carried out by the ESO Team as to Mr Haouchar's present accommodation because it is not responsible for his supervision. The concern was that if an ESO is made, an investigation would then be carried out. If the accommodation is not approved Mr Haouchar would be forced to move out but would not have anywhere else to live.

117. I do not accept that this is a concern because I cannot conceive that supervision would be so inflexible that Mr Haouchar would be forced to move out of his present accommodation forthwith and thereby be homeless if it was not approved as a place for him to live.

118. A requirement that Mr Haouchar must live at an approved address is essential to effective supervision and the proposed condition should be maintained.

Direction as to not attending OMCG and OCN premises or associating with such persons (Conditions 17 and 31)

119. An objection was made to these conditions because they duplicate a formal written direction given pursuant to the good behaviour bonds imposed by Hidden AJ. It was submitted that there was no evidence that Mr Haouchar had breached this direction.

120. These conditions should be imposed. The fact that there is a direction under a good behaviour bond that will expire before this ESO will expire is not a reason not to. Ms Farroway explained in her evidence that when an offender is subject to multiple orders, supervision will be carried out pursuant to the most stringent of them rather than under each. Accordingly, an offender subject to both an ESO and a good behaviour bond with a supervision condition will be supervised pursuant to the former rather than the latter. It would duplicate the use of resources and the demands upon the offender for supervision to be carried out under both.

Not commencing any employment etc without approval (Condition 20)

121. It was submitted that this condition should be amended to ensure that Mr Haouchar's current employment is not interrupted pending further checks. That concern relates to proposed condition 20 which provides, "The defendant must not start any job … without the approval of his DSO". It does not empower the supervising officer to require Mr Haouchar to stand down from existing employment pending approval and should be imposed.

Prior approval for transactions of a value exceeding $1000 (Condition 25)

122. Proposed condition 25 provides that Mr Haouchar cannot engage in any transaction with a value exceeding $1000 without the approval of his DSO. It was submitted that this was unnecessarily restrictive. There was a concern that it could have retrospective effect upon the lease upon his current accommodation but the condition is not framed in retrospective terms. It was also asserted that $1000 is too low and would prevent the purchase of household items or engaging tradespersons.

123. A justification for this condition was said by Ms Farroway to be that an offender's spending patterns could raise "flags" and imposing this condition would alert supervisors to what was going on.

124. There is a proposed condition (23) that Mr Haouchar must provide any information relating to his financial affairs including, inter alia, expenditure, if directed. Nevertheless, requiring prior approval for transactions exceeding $1000, for a person who has only about $200 left over from his weekly wage after payment of rent, should not be too demanding and it will be useful for his supervising officer maintaining awareness of his spending patterns.

Prior permission to join or affiliate with any club or organisation including any internet or mobile based social networking service (Condition 32)

125. The latter part of this proposed condition was the subject of objection. It was described as impractical and was said to be a matter best addressed under the access to internet and other electronic communication conditions (36-39).

126. Ms Farroway said that the purpose was to enable Mr Haouchar's supervisor to be aware of his involvement in social networking and internet activities so that they could be monitored to see if Mr Haouchar was concealing any planning of illegal activities or concealing contact with associates who would not be considered positive.

127. If monitoring Mr Haouchar's communications and who he is networking with is the rationale, that is amply covered by proposed conditions 36 to 39. A condition requiring prior approval before joining or affiliating does not seem to add anything useful.

128. Proposed condition 32 will not be imposed.

Prohibition on weapons and firearms (Condition 35)

129. This proposed condition provides that Mr Haouchar must not possess, buy, sell or use any firearm or prohibited weapon. It is objected to on the basis that he is already the subject of prohibition orders under the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW). A breach of the proposed condition of the ESO would also constitute an offence against one or the other of those Acts and would expose Mr Haouchar to at least as much, if not more, sanction compared to prosecution for breaching a condition of an ESO.

130. The State acknowledged the force of Mr Johnston's submissions in opposing this condition but it maintained that it should be included nonetheless.

131. For the reasons given by Mr Johnston SC, proposed condition 35 will not be imposed.

Provision of a list of services and applications used to communicate on the internet (Condition 37)

132. Mr Johnston SC identified impracticality with the wording of this condition in that it appeared that it would require Mr Haouchar to provide information including usernames and passwords at some undefined time. He submitted that it would be impossible for them to be provided in advance.

133. Senior counsel for the State addressed this by amending the condition so as to read, "The defendant must provide his DSO, if so directed, with …". Nothing further was said in opposition to the condition so it will remain with that amendment.

Duration of the ESO

134. There was no dispute between the parties that, should I make the orders for an ESO sought by the State, such order should be for a period of 2 years.

Orders

135. The following orders are made:

1. An order pursuant to s 5B of the Act that Mr Haouchar be the subject of an extended supervision order for a period of 2 years.

2.   An order pursuant to s 11 of the Act that Mr Haouchar, for the period of the extended supervision order, comply with the conditions set out in the Schedule to the Amended Summons, with the exception of Conditions 32 and 35, with Condition 37 amended as indicated in the reasons, and with Condition 55 added such that Mr Haouchar is to report to the Unit Leader on duty at the Blacktown Community Corrections Office by 4pm on Friday 28 September.

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Decision last updated: 25 September 2018