State of New South Wales v Hona (Preliminary)

[2024] NSWSC 1618

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hona (Preliminary) [2024] NSWSC 1618

Hearing dates:

10 December 2024

Date of orders:

16 December 2024

Decision date:

16 December 2024

Jurisdiction:

Common Law

Before:

R A Hulme AJ

Decision:

Two mental health experts appointed to examine the Defendant and furnish reports to the Court.

Interim supervision order made for a period of 28 days.

Parties to be notified of any applications for access to the Court file.

Catchwords:

HIGH RISK OFFENDERS – preliminary hearing – application for extended supervision order – dispute about whether such an order is justified – risk of further serious offending notwithstanding recent progress – dispute about electronic monitoring condition resolved

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

State of New South Wales v Hona (Preliminary) [2021] NSWSC 373

State of New South Wales v David Hona (Supreme Court (NSW), Button J, 16 July 2021, unrep)

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
David Hona (Defendant)

Representation:

Counsel:
K Curry (Plaintiff)
J Wilcox (Defendant)

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

File Number(s):

2024/400530

JUDGMENT

1. The State of New South Wales has filed a Summons whereby it seeks an extended supervision order for 12 months under the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of Mr David Hona.

2. This is the preliminary hearing of the application. The State asks the Court to make orders appointing psychiatrists and/or psychologists to examine the defendant and provide reports; to require him to comply with an interim supervision order pending a final hearing of the application; and that there be an ancillary order in relation to the court’s file.

Background

3. The defendant is currently subject to an 18-month extended supervision order made by Button J which took effect on 27 July 2021. That ESO has been suspended several times while the defendant spent time in custody for ESO breaches and violent reoffending. It is now due to expire on 4 February 2025.

4. The defendant is 30 years old and has a history of criminal offending, dating from his juvenile years. He committed what qualifies under the Act as a “serious violence offence” on 14 December 2013 when he was just short of his 20^th birthday. The victim was a stranger. ^[1]

   1. Hona v R [2016] NSWCCA 119 at [9]-[19]

5. After having been ejected from a hotel and being affected by alcohol and drugs, without provocation he assaulted the victim at a bus shelter by striking him to the face with his elbow causing the man to fall backwards. The defendant swung another blow as the man fell, landing heavily on the footpath. As he lay unconscious the defendant stomped forcefully on his chest and then walked off.

6. The victim sustained a severe head injury: a fracture to the occipital bone at the base of the skull and an extensive and acute subdural haematoma. Immediate surgery was required to relieve pressure on the brain and save his life. He remained in intensive care in an induced coma for over a week and required further surgery. Medical opinion was that the injury was “severe” and “without surgery and intensive medical management in the intensive care unit it would have been fatal”.

7. Recovery and rehabilitation were slow. By the time of sentencing in October 2014 the victim required further surgery to correct the depression in his skull at the site of a craniotomy and his neurosurgeon noted there would be some level of permanent cognitive decline and that the victim would be affected by the injury for the rest of his life.

8. The defendant had a history of less serious violence. He has engaged in impulsive, reactive violence, as well as violence involving weapons, including both makeshift and concealed knives. The defendant has often been under the influence of drugs or alcohol during the commission of his violent offending and has a significant history of substance abuse.

9. Following the imposition of the ESO which commenced on 27 July 2021, the defendant has been convicted of further offences including failures to comply with the order, primarily for drug use, and an assault occasioning actual bodily harm against his then girlfriend. This assault occurred on 10 October 2021, less than three months after the ESO was made. It involved him using his foot to stomp on her head causing a fracture to her left orbital bone and serious bruising to her eye. The entirety of the left side of the victim’s face had a bruise approximately 15-20cm in length, there was swelling to the cheek and a small cut on the tip of her nose. The defendant was sentenced to imprisonment for 2 years with a non-parole period of 12 months commencing on 9 March 2022.

10. The defendant had been in custody in respect of other matters from 10 October 2021. He was released on parole on 8 March 2023. He returned to custody on 21 April 2023 after being charged with a further offence of failing to comply with his ESO, intimidating a police officer in execution of duty and possessing a prohibited drug. On appeal on 13 July 2023, he was sentenced to an aggregate term of imprisonment of 9 months commencing on 21 April 2023 and expiring on 20 January 2024, with a non-parole period of 5 months concluding 20 September 2023.

11. He was not released to parole until 4 December 2023. He was arrested within a month on 4 January 2024 and charged with a further count of failing to comply with his ESO for using methamphetamine. He stated he had been continuing to attempt to obtain rehabilitation assistance for drug addiction but had not been accepted into any program. This was confirmed by his Departmental Supervising Officer. On 5 January 2024 he was sentenced to a 12 month community correction order which expires on 4 January 2025.

12. Since this time the defendant has made positive progress in the community. He is presently residing in stable housing and is in a relationship which appears prosocial. He has remained abstinent for approximately eight months and has started sessions with a private psychologist in addition to individual treatment with Forensic Psychology Services. The defendant has recently progressed from Stage 2 to Stage 3 of the electronic monitoring scheme which means he must still wear an ankle monitor but he is not required to provide schedules of his movements.

The issues

13. It is common ground that all of the statutory pre-trial procedures in relation to an ESO application have been complied with and that the Court has jurisdiction to make an ESO. The defendant submits that no supervision order should be made.

14. The question at this preliminary stage is whether the matters alleged in the supporting documentation would if proved justify the making of an extended supervision order by establishing to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision pursuant to an extended supervision order: ss 5B(d), 7(4) and 10A(b) of the Act.

15. There is also a dispute about one of the conditions that might be part of an interim supervision order if such an order is to be made. That relates to electronic monitoring of the defendant’s movements.

The evidence

16. Much of the defendant’s background, his criminal history, and assessments of his risk of committing a serious violence offence have been amply set out in previous judgments of this Court and there is no useful purpose served by repeating it. Reference should be made to the judgment of Campbell J in State of New South Wales v Hona (Preliminary) [2021] NSWSC 373 and the judgment of Button J in State of New South Wales v David Hona (Supreme Court (NSW), Button J, 16 July 2021, unrep).

17. Information as to the defendant’s subsequent progress is contained in various documents including a Risk Assessment Report by Samuel Ardasinski, psychologist, dated 11 July 2024; a Risk Management Report by Jamie Burton, community corrections officer, dated 2 August 2024, and an affidavit by Jessie Slattery-McDonald, HRO Applications and Operational Governance Officer, dated 6 December 2024.

Submissions

Plaintiff submissions

18. The plaintiff submitted there were six matters which supported a finding that there was a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

Nature and seriousness of past offending

19. The past offending involved serious violence and on occasion the use of a weapon. Although there have been no instances of serious violence (as defined in s 5A of the Act) since the initial serious offence in 2013, the offence of assault occasioning actual bodily harm against his then girlfriend in 2021 whilst subject to an ESO gave raise to concern. As previously noted, the assault included the defendant stomping on his girlfriend’s head causing a fracture to her eye. It had parallels with the serious violence offence in 2013.

Risk scenarios remain valid

20. Mr Ardasinski said that the risk scenarios he developed in his initial Risk Assessment Report dated 22 October 2020 appear to retain some validity, especially considering the October 2021 domestic violence offence. He said there is a residual violence risk, currently rated “Moderate” and noted the impulsive nature of the defendant’s violence. Having regard to his relatively recent domestic violence, continued association with the criminal element within the last nine months, and his challenges avoiding the use of ice in the community while subject to supervision, Mr Ardasinski opined it is possible that future reactive violence could include a “serious violence offence”.

Possible co-habitation with a new partner

21. The defendant has entered a relatively new relationship and he has been permitted to have overnight stays but has not progressed to residing with her. This could create the potential for a high risk environment. In April 2024 there was an incident with his partner that required the temporary imposition of a non-association direction and an exclusion zone to be placed around her house. The plaintiff acknowledged that while the relationship had since resumed and is pro-social, Mr Burton noted there is sufficient evidence to suggest the defendant has difficulty with emotional regulation within interpersonal relationships.

Longstanding substance abuse

22. The defendant has longstanding substance abuse problems which have only very recently stabilised. On 9 August 2024 he was reported as stating he continues to think about drugs regularly but does not “crave” them. Mr Ardasinski opined that the defendant is still clearly in the preparation stage of change on this risk factor and that lapses were not only possible but likely.

Potential for relapse remains

23. Mr Ardasinski observed that the defendant has professional supports he can utilise whether or not he is subject to further supervision. However, given the recency of his behavioural changes and ambitions to distance himself from the criminal element, as well as his ongoing challenges in sustaining abstinence from drug use, a collapse in social supports or any other form of emotional difficulties may result in a return to drug use, a return to criminal peers and ultimately a return to violence. There remains a concern about whether he has demonstrated the necessary behavioural changes over a sufficient period to reduce his risk of committing a further serious offence to an acceptable level.

The need for a further rehabilitation program

24. The defendant has been referred to the EQUIPS – Domestic and Family Violence Program but has yet to commence it. Mr Ardasinski states this program would assist the defendant to address the violence he perpetrated in 2021 and also the recent incident within his current relationship in which he displayed aggressive and threatening behaviours when leaving “disgusting” voice messages on his partner’s phone within the context of a domestic misunderstanding. That was the incident in April 2024. ^[2]

Concluding submission

2. CB334

25. The plaintiff concluded in relation to why the interim orders should be made:

As a general principle, a good predictor of future risk are the acts done by a person in the past and the extent to which the factors underpinning that offending persist or may re-emerge.

In this case the safety of the community is best served by the making of a further short ESO for the six reasons outlined above at paragraph [17]. While it is acknowledged that the defendant has made significant progress since February 2024, given his previous reactive violent offending, his entrenched pattern of substance abuse and association with criminal peers, a further short period of supervision is required to continue to address his substance use issues and residual violence risk. The progress made by the defendant is recent and the mitigation of future risk would be enhanced by ongoing supervision and interventions. There remains a concern about whether the defendant has demonstrated the necessary behavioural changes over a sufficient period to reduce his risk of committing a further serious offence to an acceptable level.

Having regard to the paramount consideration of community safety it is submitted that a degree of risk would attach to the defendant residing in the community without supervision. A further short order would provide an additional period for the defendant to reintegrate in the community and to guard against risk of relapse which may lead to a risk of the commission of a serious violence offence.

Defendant submissions

26. The defendant’s submissions focused upon the significant progress he had made since being released on parole 12 months ago. They included the following.

Assessed risk of future violence

27. There had been a substantial improvement in the defendant’s assessed risk of future violence. ^[3] Whereas previously it was assessed as “high” it is now rated at “moderate” or “average”. It was noted that Mr Ardasinski had said that the defendant’s assessed level of risk may never reduce below “moderate” although the longer a high risk offender remains in the community without committing new offences, the lower his true “live” risk potential.

Progress in attaining a prosocial lifestyle

3. Defendant’s written submissions [5]-[12]

28. The defendant has made substantial progress in attaining a prosocial lifestyle. ^[4] Mr Ardasinski noted that as at the date of his report (11 July 2024) the defendant had been at continuous liberty for the longest period (7 months) in his adult life and had embarked on a far more prosocial existence than he ever has previously. This included gainful employment, independent housing and a healthy relationship. Further, he had put in place several professional supports outside of those mandated through Corrective Services NSW as part of his ESO. If at the expiry of his present ESO in February 2025 he has been able to sustain his current prosocial trajectory it is possible that he will have reached an acceptable “desistance threshold” to be able to manage his own risk in the community without supervision.

    4. DWS [13]-[16].

29. I note that the latter is sourced from the Executive Summary of Mr Ardasinki’s 11 July 2024 report. It was immediately followed by: “Whether the residual risk of impulsive serious violence that Mr Hona poses by that stage is ‘unacceptable’ in the context of the Crimes (High Risk Offenders) Act 2005 is ultimately a matter for the Court”.

30. Reference was made to a comment in the Risk Management Report of 2 August 2024 of the past six months of supervision having been “overwhelmingly positive”. The author said this in contrast to it previously being the case that “Overall, Mr Hona’s response to his Extended Supervision Order has been largely unsatisfactory”. ^[5]

    5. Risk Management Report at CB73

31. The defendant progressed from electronic monitoring stage 2 to stage 3 on 11 September 2024. At this transition the monitoring continues but the requirement for schedules ceases. ^[6]

Continued participation in treatment ^[7]

6. RMR at CB82; Affidavit of Jessie Slattery-McDonald [16]

7. DWS [17]-[25].

32. Prior the ESO having been made in July 2021 the defendant had completed the Violent Offenders Therapeutic Program (VOTP) and subsequently completed 20 sessions of the EQUIPS Aggression program in custody in 2023. He has remained engaged with the VOTP Maintenance and Outreach team in the community and there is a case-note quoted in the Risk Assessment Report which includes that he “has been genuinely open and insightful” and that he had “reflected on his criminal identity and the impact drugs, peers and crime has had on his life. David has spoken about leaving this lifestyle behind and ‘starting fresh’.” ^[8]

    8. Risk Assessment Report at [17]

33. The defendant’s submissions refer to other case-notes that record similarly positive observations about his progress.

Employment and vocational development ^[9]

9. DWS [26]-[30]

34. The defendant obtained work in a factory in south-western Sydney in February 2024. He subsequently undertook additional courses to improve his workplace skills and obtained a forklift licence.

Concluding submission

35. The defendant submitted the following as to why interim orders should not be made. ^[10]

Even accepting the lower threshold for making orders at the preliminary hearing under s7(4) of the Act, it is submitted that the plaintiff has failed to establish a case which would satisfy the Court, on the matters alleged in the supporting documentation, would, if proved, justify the making of an ESO.

The defendant’s ESO will not expire until 4 February 2025, even if the Court dismisses the plaintiff’s summons. There is an opportunity for the defendant’s DSO to prepare the defendant for life beyond the restraint of an ESO in the coming weeks. Fortunately, the defendant would remain supervised beyond the (sometimes testing) Christmas and New Year period.

Assuming the defendant’s current positive trajectory continues, by the time of the expiration of his ESO in February, the defendant will have completed 14 months of continuous supervision without reoffending. That is close to the 18 months the plaintiff sought under that order in any case. It will have been a success. At December, the defendant is very close to achieving this outcome.

A mere 12 months of further supervision to make doubly sure that the defendant’s current positive trajectory continues is commendable but unnecessary. It remains the case that any ESO (or interim supervision order) amounts to a profound intrusion on the defendant’s autonomy, which is no longer justified when regard is had to the test under ss 7(4) and 5B(d) of the Act.

10. DWS [31]-[34]

Plaintiff submissions in reply

36. The plaintiff acknowledged the progress the defendant had made since February 2024 but submitted there remained residual and unresolved issues of concern such that he continues to pose an unacceptable risk of committing a further serious offence. It maintained reliance upon the six matters referred to in its previous submissions as demonstrating there was that level of risk if the defendant were to be left without supervision and monitoring in the community.

37. The plaintiff also acknowledged the statement by Mr Ardasinski that by the expiration of the current ESO in February 2025 the defendant will have been supervised consistently and continually for 14 months, which is just four months shy of the overall period of the ESO to which he was made subject in 2021. However, the plaintiff drew attention to the defendant having used methamphetamine in January 2024 and in a search of his mobile phone in February 2024 he was revealed to have been involved in drug dealing and having communicated with people known to have connections to organised criminal networks. Further, while the ESO imposed by Button J was for 18 months, it was interrupted by the defendant having been convicted of further offences, including violence, and having served significant terms of imprisonment.

36. The plaintiff submitted that by February 2025, if the present trajectory is maintained there will have been a period of 12 months of commendable progress. But concern remained as to whether this was a sufficient period to have demonstrated the necessary behavioural changes to manage his own risk in the community without supervision.

Determination

39. In relation to the period of progress made by the defendant over the last year, the plaintiff is correct to point out that it did not really commence until after some negative events in February 2024. Further, Mr Ardasinski’s observation that at the expiration of the present ESO in February 2025 there will have been 14 months of continual supervision should be viewed in its context. It appeared in the following part of his report of 11 July 2024. ^[11]

Overall Risk and Conclusion

The overall totality of evidence still suggests that Mr Hona falls in the Moderate or ‘Average’ risk category for violent offending relative to other adult male violent offenders, as well as for domestic violence offending. Due to his history of relatively recent reactive domestic violence (which included stomping on the victim, as occurred in the index offence in 2013), continued association with the criminal element within the last six months, and his challenges avoiding the use of ‘Ice’ in the community whilst subject to parole supervision, it is possible that future reactive violence committed by Mr Hona could include a “serious violence offence” as defined in the Crimes (High Risk Offenders) Act 2006. Given his progress, however, and the number of protective factors present in his current situation, the likelihood of such an offence occurring is no longer in the highest category on the relevant risk assessments undertaken for this report.

Mr Hona is a 30-year-old Australian man whose risk of violent reoffending is estimated to be in the Moderate or ‘Average’ risk category relative to other men who have offended violently. As mentioned in my initial report, "Mr Hona does possess some self-awareness into the risk factors which are most likely to precipitate a return to criminality and violence – he does have the potential to make lasting changes and divert his trajectory away from a life of continued crime and violence". He has certainly started this process, and if the last seven months’ progress continue for another seven without further breach, he will have existed in the community for longer than he ever has previously as an adult. He will have been supervised consistently and continually for 14 months, which is just four months shy of the overall period of the ESO to which he was made subject in 2021.

There remain risks of violence for many young, violent offenders when they reach the end of their orders. Especially for individuals such as Mr Hona, whose most serious violence is committed spontaneously and reactively, and after a period of drug or alcohol abuse. A series of setbacks could lead to a lapse, or a relapse, with the use of alcohol or methamphetamine to numb the emotional pain of his situation. In this high risk situation, the object of Mr Hona’s ire may say the wrong thing at the wrong moment and cause a violent overreaction. It is true that Mr Hona has good insight into his triggers and warning signs for violence, but whether he has demonstrated the necessary behavioural changes over a lengthy enough period to consider that his risk of repeat serious violence is “acceptable” in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court. (Emphasis added)

11. RAR [33]-[34]

40. This is not an endorsement of the defendant’s risk having been reduced to an acceptable level; that remains an open question. Notwithstanding the advances made to date, Mr Ardasinski’s assessment leaves open the possibility of relapse in the event of setbacks with the possibility of violent conduct that could have very grave consequences. The likelihood of the defendant committing a further serious violence offence absent supervision may have reduced to some extent, but the consequences for a potential victim have not.

41. The defendant is to be commended for the progress he has made over the past 10 months. That includes his compliance with the conditions of the present ESO after the removal of the scheduling requirement in September 2024. There is also his appropriate responses to the almost simultaneous setbacks in October of news that another ESO was being sought and losing his job after he disclosed his criminal history to his employer.

42. It is to be recalled however, that it is only just over three years since he stomped on his then girlfriend’s head, very soon after having been made subject to an ESO. Further, it is only 11 months since the last use of illicit drugs, one of his primary criminogenic factors and he is reported to have said recently that he still regularly thinks about drugs, albeit no longer craving them. It would be open to a court at a final hearing to consider that it is too soon to have confidence that the defendant is no longer the unacceptable risk he was found to present when the first ESO was made.

43. I am satisfied that if the matters in the supporting documentation relied upon by the plaintiff were proved they would justify the making of an extended supervision order. They are capable of satisfying the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

Conditions

44. The only proposed condition of an interim supervision order that is controversial is the requirement for electronic monitoring.

45. The defendant has expressed the wish to be able to go to the beach during the summer with his partner and her two children and not have to wear long trousers in order to conceal an ankle bracelet. ^[12] There is not much that can be done about that because his supervision will remain under the existing ESO regime during the forthcoming summer holiday period. The interim order sought by the plaintiff is to commence upon its expiration on 4 February 2025.

    12. OIMS notes, 24.10.24, 25.11.24

46. The defendant referred to the fact that on 11 September 2024 he was progressed to stage 3 (electric monitoring but no schedules) and as there was then thought to be no further ESO he would soon progress to stage 4 (no electronic monitoring or schedules). However, he received advice in mid-October 2024 that a further order was being sought. He said on 24 October 2024 that he accepted that this meant a likely delay in progression to stage 4 and appeared philosophical about it. ^[13]

    13. OIMS notes, 15.10.24, 24.10.24

47. The plaintiff relies upon the evidence of Ms Slattery-McDonald. It includes that if a further interim or extended supervision order is imposed the defendant will commence on stage 3 of electronic monitoring and if he remains on his current positive trajectory, it is anticipated that he would be progressed to stage 4 within the first three to six months. That three to six month period is an estimate; it could be as short as one to two months or as long as for the entirety of the order. ^[14]

    14. Slattery-McDonald affidavit, [13]-[14]

48. If it was appropriate to consider removal of electronic monitoring over the last 2-3 months of the current ESO it is hard to understand why it is now thought appropriate to reinstate it for that period and to maintain it for some further months as part of an interim order or new ESO after the current ESO has expired. It is supposed to be a condition that in some way enables the defendant’s risk to be managed. The level of risk he presents is not forecast to change. The only change is that a further ESO is being sought which presents a consequential need for an interim order.

49. There is a risk of regression from the present positive trajectory of the defendant’s rehabilitation and electronic monitoring might become necessary if that were to occur. The sensible solution is to remove the electronic monitoring condition as an immediately available measure but to provide for its reinstatement if there is significant regression.

50. Condition 5 currently states:

You must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment.

51. The parties have agreed that in the event the Court determined to make an amendment it be in the following terms:

If directed by a DSO, you must wear electronic monitoring equipment and must not tamper with or remove the equipment. A DSO may only direct you to wear electronic monitoring equipment if he or she forms the opinion, on reasonable grounds, that your risk factors are elevated or you have shown a significant regression in rehabilitation.

52. I will change the proposed words “are elevated” to “have elevated” in order to make clear that there would need to be a change for the worse in respect of risk factors and it not merely being an assessment of the DSO as to the state of the defendant’s current risk factors.

Conclusion

53. I make the following orders:

1. Two qualified psychiatrists and or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric and/or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date agreed by the parties.

2. The defendant is directed to attend those examinations.

3. The defendant is to be subject to an interim supervision order commencing on 4 February 2025 (“the interim supervision order”) for a period of 28 days.

4. The defendant is directed to comply with the conditions set out in the Schedule annexed to the Order entered on JusticeLink on 16 December 2024 for the period of the interim supervision order.

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

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Endnotes

Decision last updated: 16 December 2024