State of New South Wales v Kennedy (Final)

[2023] NSWSC 1441

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Kennedy (Final) [2023] NSWSC 1441

Hearing dates:

23 November 2023

Date of orders:

27 November 2023

Decision date:

27 November 2023

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant, Walker Kennedy, is subject to an extended supervision order for a period of three (3) years from the date of the order;

(2) Pursuant to s 11 of the Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to these Orders; and

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

Catchwords:

HIGH RISK OFFENDER – convictions for serious violence offence – application for extended supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – whether unacceptable risk of re-offending if not supervised – whether Court should exercise its discretion and decline to make an order – whether conditions proposed by the plaintiff are appropriate

Legislation Cited:

Crimes Act 1900 (NSW), s 35

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4(1), 5A(1)(a), 5B, 5I, 9(1)(a), 9(3)(b), 11

Cases Cited:

State of New South Wales v Kennedy (Preliminary) [2023] NSWSC 691

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Walker Kennedy (Defendant)

Representation:

Counsel:
S McGee (Plaintiff)
R El-Choufani (Defendant)

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

File Number(s):

2023/111958

Publication restriction:

Nil

JUDGMENT

1. HER HONOUR: By summons filed on 6 April 2023 the State of New South Wales, the plaintiff in these proceedings, asks the Court to make an order subjecting the defendant, Walker Kennedy, to extended supervision, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), in these terms:

1. An order:

1. pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three (3) years from the date of the order (“the extended supervision order”); and

2. pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule to this Summons.

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

2. Preliminary orders were made by Button J on 22 June 2023: State of New South Wales v Kennedy (Preliminary) [2023] NSWSC 691 (“Kennedy Preliminary”). The matter came before me for final hearing on 23 November 2023. The Court reserved its decision, although only until today, ahead of the expiration of the interim order on 28 November 2023. As the time available in which to consider the evidence and determine the matter is narrow, these reasons will be less comprehensive than would otherwise be the case.

3. In dispute at the final hearing were three issues:

1. Whether the test for the making of an order under the Act was satisfied;

2. If so, whether the Court should exercise its discretion and decline to make an order; and

3. If an order is made, the extent of the conditions attaching to it.

4. There is no dispute that the statutory preconditions are satisfied. The defendant is a “supervised offender” within the meaning of ss 5B(b), 5I(2)(a)(i) and (3), together with s 4(1) and s 5A(1)(a) because of his parole status, current at the time the State filed the present application to the Court. He is an offender who has served a custodial sentence for a “serious offence”, that being a 2019 offence of recklessly inflicting grievous bodily harm, contrary to s 35 of the Crimes Act 1900 (NSW). This is the “index offence”. The index offence is a “serious violence offence” within the meaning of s 5A(1)(a). The application for an extended supervision order (“ESO”) has been made in accordance with s 5I and s 5B(a)-(c).

5. In considering whether to make an order the Court is required to have regard to the matters set out in s 9(3)(b) – (i) as relevant:

(b)  the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)  the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)  the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1)  any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e)  any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

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

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

(f)  without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g)  […]

(h)  the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1)  the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)  any other information that is available as to the likelihood that the offender will commit a further serious offence.

The Evidence

6. The Court had the benefit of documentary evidence from the experts who, pursuant to the orders made by Button J in June 2023, assessed the defendant to report to the Court. Dr Gordon Elliott, a forensic psychiatrist, saw the defendant on 13 October 2023 and his report of 24 October is Exhibit (“Ex.”) A in the proceedings. Dr Michael Davis, a clinical and forensic psychologist, met with and assessed the defendant on 9 October 2023 and again on 16 October 2023. His two reports, of 3 November and 6 November 2023 are collectively Ex. B.

7. The State read and relied upon a number of affidavits, as follows:

1. An affidavit of Mark McAlary affirmed on 4 April 2023, by which Mr McAlary produced a quantity of documentary material, Ex. MM-1;

2. Further affidavits of Mr McAlary affirmed on 31 May 2023, 2 June 2023, 16 June 2023 and 21 November;

3. A further affidavit of Mr McAlary affirmed on 9 November 2023, by which he produced an additional quantity of documentary material, Ex. MM-2;

4. An affidavit of Kelli Grabham affirmed on 3 April 2023;

5. A second affidavit of Ms Grabham affirmed on the same date;

6. An affidavit of John Banton sworn on 1 June 2023;

7. An affidavit of Jessie Slattery-McDonald affirmed on 9 November 2023; and

8. A further affidavit of Jessie Slattery-McDonald affirmed on 23 November 2023.

8. The State also tendered a number of case note reports (“OIMS notes”) from NSW Corrective Services (“NSWCS”), Ex. C.

9. The defendant read and relied upon an affidavit of Sarah Salman sworn on 26 May 2023 and an affidavit of Melissa Smith affirmed on 20 November 2023.

The Factual Background

10. The defendant is a 31 year old Indigenous man who has spent most of his life in far western NSW, in Wilcannia and Broken Hill. He grew up as one of nine children in circumstances marred by alcohol abuse and domestic violence. His parents separated when he was very young and thereafter the defendant lived with his mother and stepfather, or with extended family when the situation at home was too fraught for him to remain there. His background is one of deprivation and dysfunction and the defendant, like his parents and other family members, abused or abuses alcohol, illicit drugs, and other substances, such as glue and petrol.

11. The defendant’s education appears to have been minimal. He has reported attending “just one” school. His attendance and conduct were very poor, and the defendant was suspended on multiple occasions. His behaviour was disruptive, despite having a Support teacher after a diagnosis of intellectual disability was made when the defendant was about 9 years of age, and he was regarded as an aggressive student who posed a risk to other students. He was expelled during year seven or eight for a violent outburst that led to serious property damage. The defendant has never held down any sort of continuous employment, although he has reported undertaking some brief periods of work, in positions such as a cleaner or station hand. His principal source of income has been the Disability Support Pension or Newstart Allowance.

12. The intellectual disability the defendant was found to have at age 9 has been assessed as at a moderate level. In later times he has been diagnosed with a severe personality disorder. The former condition is an enduring one and the latter extremely difficult to treat. These both have an impact on the question of future risk.

13. As the defendant’s background probably made almost inevitable, the defendant has regularly come into conflict with others, leading to a significant criminal record and a history of serving custodial sentences with some frequency. Much of his record is for violent offending, although for the most part at a level that falls short of serious violent offending as defined by the Act.

14. The defendant first came before the courts as a child, and he appeared before the Wilcannia, Broken Hill or Dubbo Children’s Courts on numerous occasions, charged with a range of offences including offences of violence. His first violence offence, for which he was sentenced until the rising of the court, was an offence of assault occasioning actual bodily harm (“AOABH”) committed when he was aged 14 years. The victim was a similar aged family member whom the defendant assaulted when he lost his temper after a dispute. The injury occasioned was a deep cut to the victim’s head, caused when the defendant struck the child with a coffee cup. The defendant received a control order soon after for an offence of common assault, which involved pushing a girl from her bike and kicking her, before throwing a garbage bin at her head.

15. Further control orders were imposed in 2010 when the defendant was 17. Wilcannia Children’s Court dealt with offences of aggravated break and enter commit serious indictable offence, and contravening an apprehended domestic violence order (“ADVO”), where the protected person was a 14 year old girl. Dubbo Children’s Court also imposed a control order for offences from November 2009 that included an assault upon a juvenile justice officer, following a violent outburst in a detention centre. After another separate incident involving a common assault upon a juvenile justice officer, at whom the defendant threw a rock, a further control order was imposed upon the defendant by Dubbo Children’s Court.

16. The defendant’s first conviction as an adult was for an offence of AOABH; the victim was the defendant’s stepfather. The defendant repeatedly punched his stepfather in the face after his stepfather refused his request for money with which to buy drugs. He desisted only when told the police were to be called. The defendant was 19 years old. Another violent outburst in October 2011 saw the defendant charged with contravening an ADVO that had been put in place for the protection of his stepfather, and property damage. On that occasion the defendant threatened his stepfather, telling him, “I’m going to kill you, I’m going to burn you out, when my parole and AVO finish, I’m going to finish you”.

17. In April 2013 when the defendant was 23 years old he was gaoled for AOABH after an assault upon a distant relative. The victim had attempted to intervene in an argument between the defendant and another family member, and the defendant punched her in the face, causing injury. Another conviction for AOABH was recorded in June 2016, when the defendant was aged 24 years. The victim was again the defendant’s stepfather, whom he assaulted with a square mouth shovel. Accusing the victim of being a “snitch” the defendant struck his stepfather to the hand (when the victim held his arm up to protect his head), and then to the head. His stepfather sustained cuts to the head and hand. When the victim tried to telephone police, the defendant broke the phone. A term of imprisonment was imposed.

18. More gaol time was imposed for another offence of AOABH in November 2017 by Broken Hill Local Court after the defendant assaulted his then partner with a blow to the face, causing injury and bleeding to her nose. The woman’s child was beside her when she was assaulted.

19. In May 2019 the defendant was again convicted and imprisoned for an offence of AOABH after assaulting a female with whom he had, on occasion, been involved. After a verbal argument the defendant hit the victim in the face. She hit him back causing the defendant to further assault her, knocking her off her feet such that she fell, becoming stuck in a tyre that had been lying on the ground. The defendant struck a number of blows to her as she lay helpless, unable to get out of the tyre. Family members intervened and the defendant desisted.

20. The index offence of recklessly inflicting grievous bodily harm occurred in April 2019 when the defendant struck his stepfather repeatedly with a baseball bat. The defendant had been at the home of his stepfather watching football on television and drinking a large quantity of alcohol, as were others present. He argued with his sister and chased her about the house (reflected by an offence of common assault), before taking up a kitchen knife, with which he threatened his stepfather, telling him, “I’ll cut your fucking throat in your own house”. The victim picked up a chair and struck the defendant to the shoulder, causing him to drop the knife. The victim next took up a baseball bat and, holding it up, told the defendant to leave. The defendant’s response was to walk towards his stepfather with his fists raised. The victim struck the defendant to the shoulder, after which the defendant took the bat from him and struck him multiple times. He knocked his stepfather to the ground, striking him repeatedly with a number of full force blows as he lay on the floor trying to protect his head. A witness told the police that the defendant brought the bat “down really hard” on his victim’s head with each blow. He left, smashing the windows of his stepfather’s car as he passed.

21. The defendant’s stepfather suffered a subarachnoid haematoma, a bilateral subarachnoid haematoma, extension subcutaneous haematomas, intracranial contusions, a left frontal extradural haematoma, and multiple skull fractures including to the right eye and nose. The wounds were sutured and the victim was admitted to intensive care. He declined transfer to Adelaide Hospital and discharged himself.

22. The defendant appeared before his Honour Judge McClintock SC at the District Court sitting at the Downing Centre in September 2021 for sentence for this offence, where a term of three years and six months imprisonment was imposed, with a non-parole period of two years and two months fixed. The sentence commenced on 25 December 2019 and expired on 24 June 2023. In sentencing the defendant his Honour pointed to the defendant’s lengthy record for violence and expressed concern that the defendant would continue to commit offences of violence.

23. The defendant’s most recent conviction occurred when the defendant was at liberty subject to parole for the index offence, and when the question of the imposition of the preliminary orders sought by the State was reserved before Button J. On 14 June 2023, ten days before the expiration of the defendant’s parole, he assaulted the same young woman whom he had injured by assaulting her as she lay trapped in a tyre. On this occasion the defendant, who was intoxicated, struck his victim twice to the face. He was sentenced in July 2023 (after a successful appeal against a custodial sentence) to a 12 month community correction order (“CCO”) which expires on 3 October 2024. When the defendant was sentenced for the June 2023 offence (at first instance) the Magistrate accepted that the defendant’s responses to stress had been shaped by his dysfunctional upbringing, but her Honour expressed some concern that, despite considerable support in the community, he had again committed an offence of violence when intoxicated.

24. As the assault that the defendant committed in June 2023 and some of the earlier offending I have referred to suggests, the defendant has in the past disregarded parole and other orders directed to his conduct. Indeed, on my reading of the material, the defendant has breached every community based sentencing order to which he has been subject, as well as disobeying ADVOs, and breaching parole. His record of compliance with court orders is a very poor one.

25. In custody, his conduct has been similarly problematic and he has multiple breaches of prison discipline recorded against him. Between September 2014 and August 2021 the defendant was charged with some 27 institutional offences, many of which relate to violent incidents. The records note incidents of fighting in December 2014; assaulting and intimidating another inmate in company with others in May 2017; participating in a fight in November 2017; an apparently unprovoked assault that same month when the defendant struck another inmate to the head; an incident in June 2019 when, in company with other prisoners, the defendant used a makeshift weapon (a heavy item placed in a sock) to assault another prisoner; an assault on a prisoner in August 2019; participation in a group assault against another prisoner believed to be a sex offender in November 2020; intervening in a fight to try to hit a participant, also in November 2020; another group assault in January 2021; and an attempt to strike a fellow prisoner in January 2021. The defendant was in possession of a gaol-made blade, or “shiv”, in November 2020.

26. The defendant’s custodial conduct was less reprehensible in the latter part of his most recent incarceration, although there was an incident of aggression towards NSWCS staff in July 2023 that did not involve physical violence.

27. He has undertaken therapeutic courses in custody. He completed the EQUIPS Domestic Abuse Program between April and July 2015, and the EQUIPS Addiction Program between September and November 2015, with another attempt at the latter in August 2017. The defendant has also completed the High Intensity Programmes Unit Violent Offenders Therapeutic Programme (“HIPU-VOTP”), taking the course between November 2021 and June 2022. His progress in the HIPU-VOTP was reported in this way:

“Overall, Mr. Kennedy presented as someone who has developed some insight into a number of his criminogenic needs and high risk situations for violence. He has the ability to demonstrate a range of prosocial skills which at times may assist him in getting his needs met without resorting to violence, including: perspective taking, assertive communication, consequential thinking, seeking support and removing himself from high risk situations. While he demonstrated the ability to develop insight and some skills, Mr. Kennedy has some outstanding risk factors he will need to continue to address. This includes managing his feelings towards his stepfather. He continues to have difficulty self-regulating emotions and impulsiveness, as exhibited by his interactions with custodial staff and institutional charges while in the program, and at times he continues to externalise blame and minimise his current level of risk. Mr. Kennedy’s risk of re- offending may increase if he does not continue to address his outstanding treatment needs and acknowledge his true level of risk.”

28. Following release from custody in February 2023 the defendant’s conduct was better than it had been in the past, until his commission of the domestic assault in June that put him in breach of parole. Initially he was regarded as progressing reasonably well in the community, with a NSWCS Breach of Parole report by Gregory Wellington of 21 June 2023 noting that:

“Mr. Kennedy has been compliant with supervision since being released on his parole order on 24 February 2023. He has engaged with his supervising officer to address his risk factors with cognitive behavioural therapy interventions and alcohol abuse counselling.”

29. The defendant appears to have a reasonably positive relationship with his supervisor. He also has an allocated support worker to assist him, through the National Disability Insurance Scheme (“NDIS”). The plan approved for him is funded until 24 November 2023 at a total of $121,743.00. The funds are intended to be directed to assist the defendant to engage in community based activities of interest, to develop positive relationships in the community, and to provide personal support and assistance with skills development. The allocated service provider can offer the defendant wide-ranging assistance.

Risk Assessment and Risk Management

30. As part of the process related to the present application a detailed risk assessment report (“RAR”) dated 4 August 2022 was prepared by Alita Caon and Cherice Cieplucha, both Senior Psychologists with the Serious Offenders Assessment Unit. The authors refer to the defendant’s long history of violent offending, commencing in childhood, and continuing in and out of custody, and comment on other factors of relevance to future violent offending. These include the defendant’s dysfunctional and traumatic background, his limited education, his long term problems with substance abuse, the antisocial persons with whom he associates, his own antisocial history, his lack of stable employment and accommodation, his extensive custodial history and poor compliance with supervision. The defendant was not considered to have greatly benefited from therapeutic programmes undertaken in custody, principally because of his cognitive deficits.

31. Cognitive testing of the defendant administered in 2005 and again in 2015 confirmed that the defendant has an intellectual disability placing him within the moderate range. His impairment is across a number of domains, and he has difficulties in language skills, processing and retaining information, as well as problems with non-verbal performance tasks. Coupled with what was described as a cluster B or mixed antisocial and borderline personality disorder, these deficits have a considerable impact upon the defendant’s capacity to regulate unstable thinking, emotions and behaviour.

32. Having assessed the defendant using various risk assessment instruments, the defendant was regarded as having a high risk rating.

33. In a second report from Ms Caon and Ms Cieplucha, dated 17 January 2023, the authors considered the relevance of the therapeutic programmes the defendant has completed in custody, including the EQUIPS domestic abuse and addictions programme, and the HIPU-VOTP. Although the defendant’s participation in and completion of the programmes was a positive feature, it did not alter the assessment of the defendant as presenting a high-range risk of violent reoffending.

34. Whilst the defendant’s completion of relevant courses was also viewed positively by Ms Grabham and Ms Slattery-McDonald of the Metropolitan ESO Team, the authors of a risk management report from 9 September 2022, they shared the generally pessimistic assessment of the defendant’s future prospects of a life without violence. The view was that the defendant had gained little from the programmes undertaken, with the defendant demonstrating no real insight into his most recent serious offence, continuing to blame the victim. Ms Grabham and Ms Slattery-McDonald regarded the defendant’s response to supervision as superficial and unsatisfactory, and characterised by evasive behaviour and continued substance use. The defendant was regarded as falling within the high risk level for general reoffending.

35. Recommendations were made with respect to the conditions of any ESO that the Court might impose, with electronic monitoring regarded as of benefit, given the defendant’s history of non-compliance. Substance abuse, as an area of risk, must be tackled, with recommendations for mandated abstinence, and a testing regime. Engagement with psychologists was regarded as a useful intervention.

36. In a supplementary risk management report of 3 February 2023 Ms Slattery-McDonald and Ms Grabham suggested that the defendant had taken some benefit from the programmes he had completed, whilst noting that he has, nevertheless, continued to commit offences of violence.

37. An assessment of proposed accommodation with his natural father in Broken Hill was considered positive to some extent, despite being an address associated with “a continuous rotation of transient residents and visitors, with high levels of alcohol consumption being a regular occurrence.”

38. Other assessment and treatment reports prepared by NSWCS staff are to similar effect. A significant risk for the defendant is substance abuse, and steps are regarded as necessary to address that feature of the defendant’s life. Substance use figured in the defendant’s June 2023 offending, as noted in a sentencing assessment report (“SAR”) prepared by Marc Peduto, a Community Corrections Officer within NSWCS, dated 24 July 2023. The report repeats the concerns expressed in earlier reports, although it is noted that more recently the defendant had engaged with drug and alcohol counselling and had been compliant with supervision prior to reoffending.

The Court Ordered Expert Reports

39. Both professionals asked by the Court to assess the defendant agree that he has a moderate intellectual disability and an antisocial personality disorder. The former is not in itself a risk factor but, when taken in combination with other features, it heightens the risk he poses, because of his comprehension difficulties. The defendant’s capacity to understand and process information or situations, and retain and implement coping strategies is impaired. It is likely that the therapeutic programmes that he has undertaken are of lesser value in risk management for that reason.

40. Dr Elliott took a history from the defendant, whilst noting that he was a poor historian. The defendant said that he remains illiterate and he requires assistance from others to complete basic literacy tasks. He struggles to use modern technology, being able to use his phone to ring a number but not send text messages. He is not able to use a computer to browse or look up information or websites, and he showed no understanding of social media. Dr Elliot thought the defendant appeared to have only the most basic financial management skills, and cannot use an automatic teller machine, withdrawing money by going into a branch. The defendant has never lived alone and shops with the assistance of his partner. He can manage laundry but cannot cook. He has never held a driver licence. Employment has been very limited.

41. The defendant was generally unwilling to discuss his criminal record with Dr Elliott. He said that his stepfather is no longer part of his life but was unprepared to discuss the index offence.

42. On examination, the defendant presented wearing clean and apparently new clothing; was clean-shaven and carefully groomed. His dentition was poor. Dr Elliott noted that the defendant:

“[…] did not present as agitated or acutely distressed and he did not grow angry or hostile at any point, however, […] his engagement with the interview was generally poor. He presented as regressed, defensive and anxious about the process. He did not relax at any point, even when non- threatening topics were being discussed or attempts were made to put him at ease using more conversational topics. He was uncomfortable being asked questions and would typically knit his brows, shrug his shoulders and reply, “I dunno” to most questions rather than attending to them. He did not appear pervasively depressed or abnormally elevated in mood and there was no evidence of the changes or deficits in emotional expressiveness of a chronic psychotic illness such as schizophrenia. He was monosyllabic generally but not formally thought disordered and there was no evidence of any other psychotic symptoms. He struggled to respond to broad open-ended enquiry and he was also prominently suggestible to leading questions causing him to be unwittingly self-contradictory. He also had a poor time sense and was easily confused about the sequencing of past events. He had a poor recollection of past treatment programmes and/or he was reluctant to discuss them.”

43. The doctor noted that formal psychometric testing of the defendant’s intellectual functioning has been generally consistent over the years, with full scale IQ scores of around 50 or immediately below. He has a well documented history of long term substance use disorders involving alcohol, cannabis and methamphetamines, and a long history of antisocial behaviour. Dr Elliott stated that the defendant’s:

“[…] juvenile criminal record and the documents related to his behaviour in school indicate a diagnosis of conduct disorder. As an adult, he does have a history of many of the features of an antisocial personality disorder and personality traits of a cluster B nature more generally, including emotional dysregulation and problems controlling anger, impulsivity and varied offending both in and out of custody, and a poor response to supervision. These problems occur of course in the context of his deprived and aversive early developmental experience and the modelling of substance use and domestic violence that he was exposed to at an impressionable age. His intellectual disability has also made it difficult for him to engage with and learn from offence targeted programmes.”

44. There was no indication of any major mental illness, such as a major mood disorder or a chronic psychotic illness. The defendant may suffer periods of depression and anxiety as a result of his limited repertoire of strategies for coping with stress. Dr Elliott thought that this anxiety quickly becomes anger and reactive violence, problems that are exacerbated by substance use. Dr Elliott observed that the defendant has a tendency to resort to familiar if maladaptive and destructive coping strategies, such as alcohol consumption and violence as a means of dealing with stress, despite having undertaken educative programmes around managing his behaviour. His cognitive impairment can make even day-to-day difficulties overwhelming, and more serious stressors can lead the defendant to regress into reactive violence.

45. Noting the limitations surrounding the use of risk assessment tools and the impossibility of accurately predicting an individual’s risk of acting violently, Dr Elliott completed a structured risk assessment of the defendant utilising the Historical Clinical Risk Management-20 (“HCR-20 V3”). The defendant scored highly on the historical items and on the clinical scale of the HCR-20 V3. He displayed little insight or understanding of his risks for violent offending or his need for treatment. He has significant problems in terms of emotional and behavioural dysregulation and poses significant risks with respect to his compliance with attempts to supervise him in the community, and responsiveness to such supervision.

46. Dr Elliott concluded that the defendant poses a risk of further serious violent offending. He said:

“His criminal record indicates an escalation in his violent offending, although he does have a history of serious offending from adolescence. This level of risk has now been repeatedly assessed as indicated in the reports provided in the Brief. All of these indicate that he is considered to fall within a cohort of offenders at high risk of further violent offending. Inevitably there will be an element of chance as to the likelihood of this risk occurring, however little appears to have changed in his presentation since the index offences. He remains acutely sensitive to destabilising influences and he appears to have gained little understanding of the reasons for his problems from the offence targeted programme he has completed in custody. The reports also detail that his social environment will expose him to high-risk situations and people that will influence him towards reoffending, including at his father’s residence. I have significant concerns also about his increasing use of weapons and his involvement in group assaults of other inmates, with each of these having a high likelihood of serious injury, qualifying them for the definition of serious violence as defined in The Act. Overall, I would agree with the reports provided that his risk is high.”

47. The defendant’s use of alcohol and drugs will, in the doctor’s opinion, dramatically increase the risk he will commit a serious violence offence, and so it is important that he be encouraged to engage in prosocial daily activities, and abstinence.

48. Dr Elliott was not persuaded that the risk posed by the defendant for the commission of a further serious violent offence could be managed in the community without an order of the nature sought by the State. He thought an ESO was the “most assured means of supervision” for managing the risk. He said that:

“Applied intelligently by his ESO team, the order could dovetail with his extensive NDIS supports and offer him a structured and intensively supported programme of care and supervision with daily contact with his disability provider to encourage him to remain engaged with such avenues of rehabilitation as vocational training or supported employment and providing him with prosocial activities in the community to avoid boredom and impulsive returns to substance use. His DSO could actively monitor his engagement with his NDIS provider, and intervene early in high risk situations.”

49. Despite that, the doctor had “serious reservations” as to the defendant’s capacity to understand, recall, and comply with ESO conditions, particularly since his illiteracy precludes him from reading relevant documentation. Even the “Easy Reading Guide” developed by the NSW Council for Intellectual Disability is beyond the defendant’s capacity. Patience and repetition of information will be important to assist the defendant to comply with any order in the doctor’s opinion.

50. Dr Elliott thought that an order of a duration of three years was appropriate.

51. Dr Davis was in broad agreement with the views expressed by Dr Elliott. He administered a number of measures of cognitive functioning and found the defendant to be significantly impaired in those domains which could be measured through an audio-visual conference link, consistent with earlier assessments placing him in the range of moderately intellectually disabled. Dr Davis observed that:

“In addition to his intellectual disability, it is my opinion that Mr. Kennedy has a damaged personality structure that has been complicated by complex childhood trauma and neglect, early onset inhalant use, and chronic substance misuse. It can be difficult to diagnose a personality disorder in someone with a moderate intellectual disability. However, in Mr. Kennedy’s case, the behaviours he has engaged in for approximately two decades are clearly over and above anything that would be expected on the basis of his intellectual disability alone. It is my opinion that his repeated offending, impulsivity, irritability and aggressiveness, recklessness, and irresponsibility meet formal criteria for Antisocial Personality Disorder, although this is not a very discriminative diagnosis in forensic or correctional settings as the criteria are largely based on antisocial behaviour.”

52. It is likely in Dr Davis’ opinion that the defendant also has an Emotionally Unstable Personality Disorder (Impulsive Type), a condition characterised by emotional instability, lack of impulse control, and outbursts of violence or threatening behaviour. His personality disorders are regarded as severe.

53. Noting the drawbacks and limitations inherent in risk assessment tools Dr Davis administered various actuarial tools ^[1] that, generally, placed the defendant in a category for elevated risk. As an example, the result received from the Level of Service / Risk, Need, Responsivity (“LS/RNR”) tool was as follows.

“Mr. Kennedy’s total score on the LS/RNR was in the lower end of the “very high” range of risk and need. Five of the eight areas were considered to be particularly problematic (i.e., a high or very high need). These were the areas of antisocial pattern, criminal history, education/employment, leisure/recreation, and alcohol/drug problem. One further area was currently of medium need (companions). The remaining two areas were of low need: pro-criminal attitude/orientation and family/marital. The latter was deemed to be an area of partial strength (notwithstanding the fact that many of Mr. Kennedy’s family members appear to have criminal records).

Mr. Kennedy’s LS/RNR results indicated that he has a large number of recognised risk factors for general criminal recidivism. It should be noted that much, but certainly not all, of his total score was derived from more static and unchanging areas based on his lengthy criminal history and lack of education or employment; with comparatively fewer difficulties based on his current presentation. Nonetheless, the large total number of risk factors indicates that Mr. Kennedy currently poses a high risk for general criminal recidivism (i.e., considerable higher than that of the average offender), at least until he can demonstrate a reasonable period of hitherto unseen behavioural stability in the community. Moreover, the identified areas of need constitute treatment and management targets that may assist in reducing his risk of all forms of recidivism.”

1. The Violence Risk Appraisal Guide – Revised; the Hare Psychopathy Checklist – Revised; the Level of Service / Risk, Need, Responsivity; the Spousal Assault Risk Assessment Guide; and the Historical and Clinical Risk Management – 20 Violence Risk Assessment Scheme

54. On the basis of all of the relevant data Dr Davis concluded:

“It is my opinion that Mr. Kennedy currently poses a high risk for general violence (i.e., considerably higher than that of the average violent offender). He has an elevated number of risk factors on essentially all risk assessment tools for general offending and violence and committed his most recent violent offence in June of this year. However, determining the most likely scenario for future violence, and the risk for a “serious violence offence” under the Crimes(HighRiskOffenders)Act 2006 is not as straightforward. When one considers Mr. Kennedy’s history of violent convictions, he had four convictions for physically violent offending as a juvenile, two of which arose from incidents in youth detention. As an adult, Mr. Kennedy has committed seven physically violent offences leading to convictions. Three of these involved victimising his step-father (and there was a further offence where he threatened to kill his step-father). Two further violent offences have involved his current partner (once when they were friends and once as a couple). A further offence involved a distant “Aunty” victim and the remaining offence involved a previous intimate partner victim. As an adult, all but the latter offence occurred in the context of some form of intoxication (usually alcohol). However, only the 2019 offence, in which Mr. Kennedy assaulted his step-father with a baseball bat after a considerable period of drinking together, resulted in a conviction for a serious violence offence under the Act. As such, as problematic as it is, his formal criminal history does not suggest a high risk for serious or life-threatening violence. Nonetheless, it is my admittedly conservative opinion that Mr. Kennedy currently poses a moderate risk for a serious violence offence under the Act (i.e., comparable to that of the average violent offender).”

55. He noted that the defendant is primarily aggressive and violent in situations where he feels as if he has not been respected or listened to by someone he knows, causing him to impulsively lash out, sometimes opportunistically using a weapon. Dr Davis viewed the defendant’s offending behaviour as an interaction between his intellectual disability, severe personality disorder, and chronic substance abuse.

Determination

Is the Statutory Test of Unacceptable Risk Met?

56. As Button J observed at [7] in Kennedy Preliminary with respect to the defendant’s situation on release to parole, the question of whether he poses an unacceptable risk of committing an offence of serious violence might be regarded as “finely balanced”. That the defendant poses a risk of the commission of violent crime is, in my opinion, undoubted; the question is the more nuanced one that considers the risk of the commission of an offence of serious violence as contemplated by s 5B(d), and as the defendant has done once in the past.

57. Like Button J, I regard the defendant’s almost immediate reversion to violent conduct upon his release to parole by assaulting his partner as instructive of that question. Even though the defendant has only one conviction for a serious violence offence as defined by the Act, that might be regarded as due more to good fortune than good management. Many of the defendant’s past crimes, including some committed as a child, involve a level of violence, frequently with recourse to a makeshift if nevertheless dangerous weapon, that is deeply troubling. The occasion when the defendant knocked a child from her bicycle and threw a garbage bin at her head; or the incident when he seized a shovel to direct forceful blows to a victim’s head; or the incident in custody involving an improvised weapon utilising a heavy object and a sock to assault an inmate are examples. In those instances, the facts suggest that the victim escaped with lesser injuries than could have been expected to have been occasioned, having regard to the use of a weapon and the level of aggressive force used. That the injuries were not more severe does not appear to have been attributable to any restraint exercised by the defendant.

58. As much of the evidence highlights, the defendant has significant problems in regulating his own conduct, and his response to stress and conflict with others appears to be violence. His cognitive deficits and severe personality disorder have a role to play in his inability to deal with difficulties calmly. Problematic use of alcohol or other substances simply exacerbate the defendant’s dysregulation.

59. That remains the position even in circumstances where, to his credit, the defendant has undertaken a number of relevant behavioural and therapeutic courses. It is perhaps significant against that background that he has not successfully addressed his substance misuse issues. In the community it is inevitable that the defendant will be placed in situations where he is in company with those who typically use alcohol to excess, and will likely be encouraged to participate. Small disputes in such circumstances may predictably lead to significant violence. Without supervision such an outcome is, sadly, almost inevitable. Even with supervision there will be challenges, given the defendant’s impaired cognition and his previous attitude of non-compliance, but supervision will provide a layer of enforced stability not otherwise available to the defendant because of his enduring intellectual and personality impairments.

60. Drs Elliott and Davis are both of the view that the defendant poses a high risk for general violence, and an elevated risk of serious violence, with Dr Elliott concluding the latter risk is high and Dr Davis opining it is moderate. Regardless of its categorisation by the doctors, the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence of violence if not kept under supervision under an ESO.

61. The prospect of the defendant, particularly if intoxicated, becoming involved in an argument in the context of his generally unstable lifestyle, where that argument escalates to a violent attack, perhaps with the added layer of the use of a weapon or an ordinary object wielded as a weapon, is all too real. The defendant has no real capacity to control his aggressive response to disputation, and insufficient cognitive ability or insight to perceive the dangerousness of his conduct and voluntarily desist. The possibility of someone being very seriously injured in such an incident is also a very real one.

62. The defendant submits that the existing CCO taken together with the support available to him through the NDIS is adequate to manage that risk. That would very likely be so, but for one feature: its short duration. The disadvantage of leaving the defendant’s supervisory regime to the current order is its relatively short length. The CCO will expire on 3 October 2024, leaving only a little over ten months for the Corrections authority to work with the defendant to assist him to achieve a state of law-abiding stability. When measured against decades of substance abuse and violent criminality, such a short period is simply inadequate to the task. Bearing in mind the need for time and repetition to assist the defendant to address his substance abuse and behavioural issues, an order of 3 years duration is appropriate.

Should the Court Nevertheless Decline to Impose an Order?

63. Being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order the State seeks, the next question is whether, nevertheless, the Court should exercise its discretion and decline to impose it.

64. The defendant points to the very real prospect that an order will do little more than cause him to fail in his rehabilitation, by requiring him to fulfil obligations he can neither understand nor comply with because of his intellectual disability. Without even sufficient literacy to take in the information surrounding any order the Court makes it is submitted that the defendant has little hope of compliance, leading potentially to the damaging cycle that would commence with a breach of the order, perhaps inadvertently, thereafter being criminally charged with an offence carrying a 5 year maximum penalty as a consequence, and returning to custody to serve a sentence of imprisonment. That possibility must be acknowledged; it does not, however, militate definitively against an order. The primary object of the Act is an important consideration in that regard: s 3.

65. Both Drs Elliott and Davis were conscious of the difficulties the defendant will have in comprehending any ESO and complying with it. Both nevertheless regarded it as a useful means of mitigating risk. Both commented upon the need for sensitivity and patience in the administration of any order. Typically, orders of this nature are drafted in such a way as to allow some flexibility, and the supervising officer has considerable discretion in overseeing any order. Any officer supervising the defendant will have the flexibility – and should appreciate the need – to exercise supervisory powers in a thoughtful manner that takes into account the defendant’s particular limitations. Ideally, the services available to the defendant through the NDIS and other community based support services can be employed to assist him in understanding his obligations, and addressing his behaviour according to them. Steps have already been taken in that regard: Ex. C. Clearly those currently supervising the defendant are conscious of the necessity for additional information to be provided, and repeated, to the defendant, to aid him in understanding his obligations under any ESO.

66. Similarly, should breaches occur, some discretion can and should be exercised in determining how best to address any possible breach. Depending on the seriousness and degree of mistake or intent involved, a criminal charge may not always be the appropriate response. If it is, the sentencing discretion is a wide one and any sentencing court will consider all relevant features of the objective and subjective cases to determine a just penalty. It is by no means inevitable that the only appropriate penalty will be a sentence of imprisonment.

67. It must be accepted that our criminal justice system allows for common sense and human understanding to be brought to bear at every stage.

68. Bearing those matters in mind and noting the serious, even potentially life threatening, consequences that could follow a crime of violence committed by the defendant, I would not decline in the exercise of the Court’s discretion to impose the order the State seeks. In reaching that conclusion I have had regard to the subsidiary object of the Act, to encourage the defendant to undertake rehabilitation. Left to his own devices, or with only short-term mandated participation in appropriate therapy (as under the CCO), I think it is highly unlikely that the defendant will take any meaningful steps towards alcohol abstention, drug rehabilitation, or behaviour management. In my opinion, there is benefit to the defendant in his supervision, as there is to the community.

Which Conditions are Necessary?

69. The remaining issue is that of the conditions to be imposed. The parties have, very helpfully, discussed the disputed conditions and narrowed the scope of the dispute considerably. In the event that an order is to be imposed only proposed conditions 10, 23, 35, 45 or 47 remain controversial.

70. Generally speaking, the conditions should in my conclusion be as few and as simply expressed as is possible.

71. Proposed condition 10 imposes an obligation that, if directed, the defendant would observe a curfew between 9pm and 6am. Although there may be benefit in a curfew, at least insofar as it would prevent the defendant from late night drinking sessions in the homes of others, alcohol abuse can be addressed through other conditions, as can any immediate requirement for a curfew. Proposed condition 3 requires the defendant to follow reasonable directions given to him by his supervisor and proposed condition 20 is akin to an alcohol abstention condition. Those conditions are adequate and can be flexibly employed to address current circumstances.

72. Proposed condition 23 would prevent the defendant from entering licensed premises other than cafes and restaurants without prior approval. Although the basis for the condition is readily identifiable – a need to prevent the defendant from drinking to intoxication or being exposed to others in that situation – proposed condition 3 allows a direction to this effect to be given if necessary. In small regional towns often the places where most social and community activities take place are hotels, and to expect the defendant to have sufficient understanding and forethought to seek permission to attend some event because the event was held in a hotel is likely asking too much. A prohibition on drinking is more readily understood and complied with.

73. Proposed condition 35 requires the defendant to submit to the search of a location or thing. The aspect of the condition in dispute is the requirement to submit “any computer, electronic and communication device” for search on demand. Dr Elliott thought this condition could well be counter-productive. In my view it is unnecessary. The defendant is illiterate and uses only the most basic functions of a mobile telephone. There is no real likelihood that he will have a computer or other digital device. He may be able to use such devices as part of a training or educational programme, but there is no compelling reason to think that any device in the defendant’s possession will be used to facilitate serious offending, or provide evidence of that or a breach of the order. Those words in proposed condition 35 will be deleted.

74. Proposed condition 45 requires the defendant to agree to treatment and service providers and health care practitioners sharing information concerning attendance, treatment and progress with each other and his supervisor. That is appropriate for those practitioners who provide treatment or care under the auspices of the order. For example, any agency assisting the defendant with alcohol rehabilitation, presumably through the intervention of NSWCS or pursuant to a direction to the defendant by a supervising officer, will be broadly aware of the defendant’s supervised status and should share the information with other relevant professionals, and report to the supervising officer. There is no reason why the defendant’s dentist or general practitioner should do so.  The condition will be imposed, but in a modified form.

75. The final condition in dispute is condition 47, which requires the defendant to agree to the disclosure of his criminal history to health professionals who may treat him, to the extent relevant to the risk of reoffending, or rehabilitation. The defendant’s fear is that, if his history is known to treating professionals, some may decline to treat him and, in a small regional area, that could deny him necessary medical or other health care. Although it must be less than likely that a health professional would refuse to provide treatment to an individual with a criminal record, I am not persuaded that this condition is truly necessary.

76. Treatment directed to the defendant’s rehabilitation will be arranged or provided by persons or agencies connected with NSWCS and the defendant’s background will be known. Healthcare professionals providing treatment unconnected with rehabilitation should have no general need to know the defendant’s criminal history. If a practitioner did need such information, presumably the person would ask the defendant, and he can disclose the information, or not, knowing that it is needed for his appropriate treatment. There is no evidence that the defendant has ever behaved aggressively towards or threatened any medical or health practitioner, requiring those persons to be warned in advance about the defendant’s criminal record.

77. The Court does not intend to impose proposed conditions 10, 23 or 47, and a modified version of proposed condition 35 will be imposed. This will necessarily mean that following condition 9, there will be some variation in the numbering of the conditions imposed from the conditions proposed.

orders

78. The Court orders that:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant, Walker Kennedy, is subject to an extended supervision order for a period of three (3) years from the date of the order;

2. Pursuant to s 11 of the Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to these Orders; and

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

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SCHEDULE OF CONDITIONS OF EXTENDED SUPERVISION

OF WALKER KENNEDY

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means Walker Kennedy also known as Thomas Kennedy and Thomas Brian Kennedy, the defendant in these proceedings and the subject of the order.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

"Electronic Device” includes but is not limited to a phone, tablet device, data storage device and computer.

“NSWPF” means NSW Police Force.

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“Search” includes:

1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

2. A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3. The defendant must follow all reasonable directions by his DSO or any other person supervising him.

4. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Part B: Accommodation

1. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

2. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address, but in the exercise of this power, the DSO shall have regard to the rights of the other occupants of the premises to peace and privacy.

3. The defendant must not spend the night anywhere other than his approved address without the prior approval of a DSO.

Part C: Place and travel Restrictions

1. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

2. The defendant must not leave New South Wales without the prior approval of the Commissioner of CSNSW.

3. The defendant must not go to a place if a DSO tells him he cannot go there.

Part D: Drugs and Alcohol

1. The defendant must not possess or use illegal drugs.

2. The defendant must not possess or consume alcohol without the prior approval of a DSO.

3. The defendant must not possess or use prescription medication other than as prescribed to the defendant.

4. The defendant must submit to drug and alcohol testing as directed by a DSO.

5. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge himself from such programs and courses without prior approval of a DSO.

Part E: Non-Association

1. The defendant must not associate with any person or persons specified by a DSO.

2. Without limiting condition 25, the defendant must not:

   a.   Except while at his approved address, or without the prior approval of his DSO, associate with any people who he knows are consuming or are under the influence of alcohol.

   b.   associate with any people who he knows are consuming or under the influence of illegal drugs.

3. The defendant must agree to a DSO disclosing his criminal history to another person known to the defendant if the disclosure is reasonably necessary. Before any disclosure is made, the defendant will first be given the opportunity to make the disclosure himself within a timeframe as reasonably identified by a DSO.

Part F: Weapons

1. The defendant must not possess or use any of the following:

   i.   a firearm or ammunition; or

   ii.   any prohibited weapon.

2. Without limiting or altering condition 29, the defendant must not possess or use any of the following, without a DSO’s prior approval:

   (a)   a knife (except a knife possessed and/or used for domestic purposes only), machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;

   (b)   any other implement made or adapted for use for causing injury to a person;

   (c)   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

Part G: Search and Seizure

1. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, or any storage facility, garage, locker or commercial facility, if the DSO reasonably considers such a search is necessary to confirm the Defendant’s continuing compliance with this order; and to the seizure of any object located during the search.

2. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order.

Part I: Medical intervention and treatment

1. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

2. The defendant must agree to those treatment and service providers and healthcare practitioners who are providing care to him pursuant to a direction to the defendant under the extended supervision order, sharing information including reports on his progress and attendance, with each other and with a DSO.

3. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW where those persons and agencies consider such information to be relevant to his ongoing risk management and rehabilitation.

Endnote

Amendments

27 November 2023 - Typographical amendments to Cover sheet.

Numbering of Conditions in Schedule amended.

Decision last updated: 27 November 2023