State of New South Wales v LC (Preliminary)

[2022] NSWSC 1682

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v LC (Preliminary) [2022] NSWSC 1682

Hearing dates:

28 November 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The Summons is dismissed.

(2) The plaintiff to pay the defendant’s costs.

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – Court not satisfied to a high degree of probability that defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order – application dismissed

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Evidence Act 1995 (NSW)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

Cornwall v Attorney-General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales [2016] NSWCA 57

State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161

State of New South Wales v Elomar (No 2) [2018] NSWSC 1034

State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041

State of New South Wales v Heness (Preliminary) [2019] NSWSC 1710

State of New South Wales v Kamm (Final) [2016] NSWSC 1

State of New South Wales v Manners [2008] NSWSC 1242

State of New South Wales v McGee (Preliminary) [2019] NSWSC 53

State of New South Wales v Pacey (Final) [2015] NSWSC 1983

State of New South Wales v Sancar [2016] NSWSC 867

State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562

State of New South Wales v Strong, Robert [2018] NSWSC 1113

State of New South Wales v Sturgeon [2019] NSWSC 559

Tannous v State of New South Wales [2020] NSWCA 261

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
LC (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
S McGee (Defendant)

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

File Number(s):

2022/00267980

Publication restriction:

The defendant is to be referred to in connection with these proceedings (including in any published court list) by the pseudonym “LC” on the grounds that the order is necessary to prevent prejudice to the proper administration of justice pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), specifically to ensure compliance with the statutory prohibition against publication of, or any information tending to identify the child victim of the November 2007 offence.

Judgment

1. The State of NSW by Summons filed on 5 September 2022 seeks interim and final orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant, LC. The final relief sought by the State comprises an extended supervision order (ESO) of 3 years.

2. The interim orders sought at this preliminary hearing comprise mandating psychiatric and psychological examinations (under s 7(4) of the Act) and that the defendant be made subject to an interim supervision order (ISO) commencing at 12:01am on 17 December 2022 for a period of 28 days.

3. I have been assisted by detailed written and oral submissions from counsel for both parties directed to the issues for determination at this preliminary stage. They are first, whether the statutory test for the imposition of an ISO is met, (i.e. whether the supporting documentation, taken at its highest, would, if proved, satisfy the Court to a high degree of probability that LC poses an unacceptable risk of committing another serious offence if not kept under supervision under the order), second, if it is, whether in the exercise of its discretion the Court should make an ISO, and third, whether the Court should order that the defendant attend examinations under s 7(4) but not impose an ISO at this stage given that the supervision provided by the Community Correction Order (CCO) in place, effectively keeps the risk of LC committing a serious violence offence to below the level of unacceptable, although as I understand the position, that third approach is no longer sought by LC.

4. For the reasons that follow, I am not satisfied that an ISO should be made and the Summons is dismissed, with costs.

Background

5. LC is a 47-year-old Ngunnawal man, currently serving the last three weeks of parole of a sentence for the manslaughter of his former partner’s 13-month-old baby in November 2007 (the index offence). He pleaded guilty to that offence and in August 2010 was sentenced to 14 years imprisonment with a non-parole period of 10 years 6 months.

6. LC had committed that offence whilst he was on parole for an earlier manslaughter that he had committed in 1996 where he shot and killed a stranger in a brothel. That offence was the subject of a plea of guilty to manslaughter on the basis of “diminished responsibility” due to his borderline personality disorder and severe depression. For that offending LC had been sentenced in May 2000 to 12 years imprisonment, with a non-parole period of 7 years and 6 months.

7. At the time of the 1996 offence, LC was abusing alcohol and illicit substances. He was abusing prescription medications at the time of the 2007 index offence. It is common ground that there is no evidence at all that LC is currently abusing either alcohol or drugs.

8. The following family and social background is taken from the report of Dr Parker dated April 2022. Dr Parker is a Senior Psychologist from the Serious Offenders Assessment Unit.

9. LC is the second youngest of eleven siblings. LC described his father as an alcoholic. His parents separated when he was eight. An older brother died in a car accident. LC said that he had good grades at school. One of his brothers was diagnosed with Leukemia when LC was 13 or 14 years old, and he felt bereft to be left with his alcoholic father whilst his mother focused her care on his ill brother.

10. LC moved to Kempsey to live with his sister and her husband. He met a woman called Melissa with whom he fell in love but there were difficulties, including jealousy on his part, and when the relationship ended, he took refuge in drugs and alcohol and engaged in self-mutilation. In this part of his life he committed the first manslaughter.

11. In 2007 while on parole for the first manslaughter, he formed a new relationship with a woman who had a baby belonging to her former partner. LC committed a number of acts of violence towards the baby causing the baby’s death on 8 November 2007.

12. LC told Dr Parker that he used drugs from the time he was about 14 years old. He admitted to abusing numerous substances over the years, but since his last release to parole there have been no incidents of substance abuse.

13. Dr Parker noted that a pattern of self-harm during his teens and early twenties seems to have abated with nothing at all noted in the Offender Information Management System (OIMS) notes referring to self-harm since 2007.

14. LC was convicted in 2021 of an offence in September 2020 where it was alleged that he was hostile and intimidating towards police who were attempting to serve some papers on him. It is alleged that in a heightened emotional state, he made threats to kill a police officer who had attended the previous day. This led to LC’s arrest on 22 September 2020. He was convicted of the charge of intimidate police officer in the execution of duty. He was remanded in custody until he was granted parole on 7 October 2021, having been sentenced on 28 September 2021 to a 3 year Community Correction Order (CCO) for the intimidation offence.

15. Dr Parker stated that since his release LC has continued to comply with parole reporting requirements, although his living situation has been somewhat unstable due to the behaviours of his brother with whom he resides, and LC often spends time staying with another brother.

16. There has been no offences of any kind since 20 September 2020, a period of over two years.

The index offending - 2007 manslaughter of baby

17. The circumstances of the index offence were summarised by the sentencing judge Hidden J as follows:

“The child was killed on the night of 6 November 2007. The offender had been in a relationship with his mother for about 6 months, and they were living in a home unit at Blacktown. However, they had known each other much longer than that. Indeed, the mother had known the offender's family all her life. The child was not the offender's; he was the product of an earlier relationship of the mother's.

There is evidence that the offender had been generally affectionate towards the child, However, not only did he cause the baby's death in a very violent manner, he had also assaulted him on prior occasions. Some explanation for this paradox is to be found in the psychiatric material, to which I shall refer later. I shall deal firstly with those earlier incidents.

Early in June 2007, the baby was crying while the offender was changing his nappy. The offender said "Would you lay still, you little cunt", and slapped him twice across the legs. The mother remonstrated with him, and he promised not to smack the child again. In late July 2007, the offender was teasing the child by putting the bottle near his face and then pulling it away. The mother tried to seize the bottle from the offender but he struck the baby to the back of the head with his open hand, forcing the baby's head to come into contact with the mother's mouth. As a result, she suffered a laceration, and teeth marks and a bruise were observed on the back of the child's head.

On 6 August 2007, the offender picked up the baby when he started to cry. He told him to stop crying, then took hold of his shoulders and shook him roughly, causing his head to move back and forth very quickly. On the following day, he was observed again to be holding the baby, who was screaming, and shaking him back and forth.

The last, and most significant, of these earlier incidents occurred in the evening of 5 November 2007, that is, the night before the killing. The baby was crying. The offender squeezed him around his neck with both hands and shook him for a significant period of time. He also held him around the throat with one hand, choking him, while he punched him forcefully to the face several times. The mother tried to intervene, but the offender seized her by the hair and pusher her hard enough to propel her over a lounge, causing her to hit her head on a staircase. He then pulled out a knife and threatened to stab her. The child lost consciousness but, fortunately, he was able to revive him. He went upstairs but, when the baby resumed crying, he came back down and again choked him with one hand while he punched him to the face with the other.

The manslaughter

I turn, then, to the fatal incident. In the early evening of 6 November 2007, the offender went to a hotel in Blacktown, where he drank and played the poker machines. In the mid evening the mother rang the hotel and asked to speak to the offender. She asked him how long he would be because she wanted to go to bed. It seems that he was in no hurry to leave because he was winning at the poker machines. It was not until after 11pm that he left.

When he arrived home, the mother was in the lounge room and the baby was sleeping on a mattress on the lounge room floor. He was drunk, angry and aggressive. He told her in no uncertain terms that he resented her ringing him at the hotel, shouting at her, "Why can't you just fuckin' leave me alone?"

The baby awoke and started to cry. The offender started to choke him, saying, "Shut the fuck up, you little cunt." He called him offensive names, such as "little black monkey," "black dog," or "black ape."

Again the mother tried to intervene and, again, he produced a knife and threatened to stab her. He lifted the child, holding him around the neck with both hands, and shook him violently while he choked him. As the mother described it, the baby's whole body was shaking "in a floppy motion", and he was having difficulty breathing and making a gurgling noise.

The offender then threw the child back onto the mattress and stomped on his chest. The child lay limp, apparently unconscious. The mother rang 000 and requested an ambulance, while the offender tried to resuscitate the baby. When ambulance officers arrived he was not breathing and had no pulse. He was taken to Blacktown Hospital, where he was admitted in the early hours of 7 November. He was transferred to the Children's Hospital at Westmead, where he was found to be brain dead. Death on that basis was formally declared the following day.

For a time, both the offender and the mother sought to conceal the true cause of the baby's death from authorities. They claimed that he had suddenly gone limp and stopped breathing, and sought to attribute this to an immunisation administered to him the previous day.

His expressions of remorse about his offences vacillate, telling a Parole officer "I took two people's lives that I can never give back", but later telling his supervising officer: "I don't give a fuck about the victim's family, they can all throw themselves of a cliff or be hit by a truck as far as I am concerned".”

18. Hidden J added the following observations regarding subjective features and the opinion of Dr Westmore, Psychiatrist:

“[39] Clearly, this case falls into the more serious category of [manslaughter]. The offender's attack upon the baby ... was brutal... the killing was not an isolated incident but the last of a series of assaults upon the child, escalating in severity ...

….

[41] That said, I accept that the killing was spontaneous, at a time when the offender had lost control of himself ...... He was disinhibited by alcohol but, clearly, his behaviour was largely the product of a propensity to impulsive violence characteristic of his personality disorder. This provides some explanation for the killing and for the earlier acts of violence, particularly in the light of the psychological stress to which he was subject over that period.”

19. Hidden J found that there was no evidence of LC expressing remorse for his offending other than what was inherent in the guilty plea. He noted these specific subjective features present at the time of the offence:

"Not long after his release, his father was diagnosed with cancer. His mother's vision was impaired. He shouldered the burden of family responsibilities, including the care of his brain-damaged brother. His father was later transferred to palliative care at Westmead Hospital ....

.. he tried to deal with the responsibilities as best he could, but thought that everything "got too much in the end". He added that he "tried to block it out", that he was not sleeping and that he was taking Valium and Mersyndol."

20. Hidden J also noted the opinion of Dr Westmore to the effect that LC’s personality difficulties make him vulnerable to stress and that his history of impulsive behaviour appears to have some relevance to this matter.

21. Hidden J commented on LC's prospects of rehabilitation as follows:

"I must be guarded about [LC's] prospects of rehabilitation, but I do not consider that there are none. Prior to the offence he had been at liberty on parole, without conflict with the law, for almost 2 ½ years. Nevertheless, the hope at the time Greg James J sentenced him that, with maturation and abstinence from drugs and alcohol, he would not re-offend has, tragically, been dashed. I cannot be confident that he would not again resort to violence in a stressful situation, but this makes it all the more important that he have the psychological support and the assistance in relation to substance and alcohol abuse recommended by Dr Westmore. The sentence I pass will provide for a lengthy period of parole eligibility, so as to foster his rehabilitation”."

Operation of the Act

22. The Court needs to be satisfied that the statutory pre-conditions s 5C(a) to (d) of the Act are satisfied. These are first, that the defendant is an offender serving a sentence of imprisonment for a serious offence, second, that he is a “detained offender” and third, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious violence offence if not kept under supervision under the order.

23. If so satisfied, the Court must make an order appointing two experts to assess the defendant: s 7(4), and then consider whether, in its discretion it should impose an ISO and if so, then to go on to consider such conditions as are appropriate: s 11.

24. The purpose of the Act is protective, the primary object being to ensure the safety and protection of the community. Another object - obviously enough a secondary one - is to encourage offenders to undertake rehabilitation. I observe that a rehabilitated offender presents less risk to the community, but I must not elevate that concern to one that trumps the need to ensure the safety and protection of the community.

The nature of a preliminary hearing

25. The purpose of and processes entailed in a preliminary hearing can be summarised as follows:

• A purpose of the preliminary hearing is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of independent expert opinion before making a final decision: State of New South Wales v Manners [2008] NSWSC 1242 at [9] per Johnson J.

• The approach is to take the State’s case at its highest to determine if there is merit in the application.

• The Court proceeds on the assumption that the asserted facts are proved, including the expert opinions, and then considers whether, on that assumed basis, the Court is satisfied as to unacceptable risk: State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 at [10] per Fullerton J; State of New South Wales v Sancar [2016] NSWSC 867 at [74] per Garling J.

• In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, in the context of s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (which reads the same as s 10A), Rothman J at [7] rejected a submission that ‘prima facie' proof is required of the “matters alleged” and explained that "matters alleged" in s 27 referred to the facts sought to be established by the State, not the conclusion to be drawn from them. His Honour said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO". This approach was quoted and endorsed by R A Hulme J in State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 and Latham J in State of New South Wales v Strong, Robert [2018] NSWSC 1113 in the context of s 10A.

26. It is clear that at this stage the Court does not assess, weigh, evaluate, accept or reject the expert opinions or material set out in affidavits tendered by the State, but must take them as assessments that have been made at those times of matters relevant to the defendant’s risk, and that evidence of the deponents contained in the affidavits and annexures is all true and correct.

27. In that context it is worth observing that the Court is assessing current risk and so reports that are up to twenty years old may have more limited relevance to that assessment.

The evidence

28. The State tendered two affidavits of Ms Fisher, solicitor, affirmed 5 September 2022 and 31 October 2022 as well as a volume of exhibited material addressing s 9(3) mandatory considerations.

29. An affidavit of Ms Grabham affirmed 24 November 2022 was also tendered. This was supplemented by a further affidavit of Ms Grabham affirmed 2 December 2022 providing further details on the question of supervision under the current CCO and how that would change under the proposed ISO in terms of personnel.

30. LC tendered an affidavit of his solicitor, Ms Macdonald, affirmed 22 November 2022 and an affidavit of LC sworn 22 November 2022.

31. LC provided a further affidavit sworn 5 December 2022 in response to some questions raised during the 28 November 2022 hearing regarding what he has been told as to change of supervising personnel if an ISO is imposed.

28. Objection was taken by counsel for the defendant Ms McGee to the contents of a Police Facts Sheet that contained a summary of what police assert were the circumstances that led to the September 2020 intimidation of police officer charge. Ms McGee submitted that I should reject the tender of that Facts Sheet because it contained nothing but untested allegations made by police. She submitted that although the offence was found to be proved, the Magistrate’s reasons as to what he or she accepted to be the facts and a transcript of the hearing would comprise the proper basis to inform the Court of those matters, but such material has not been made available by the Crown, despite request. Ms McGee submitted that I should exclude the Police Facts Sheet under s 135 of the Evidence Act 1995 (NSW) on the basis that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial or misleading or confusing.

29. Mr Aitken for the State submitted that the Facts Sheet should not be rejected because s 25(3) of the Act provides that documents or reports produced under s 25 of the Act are admissible in proceedings under the Act, despite any Act or law to the contrary and so s 135 of the Evidence Act is not applicable.

30. Mr Aitken cited two authorities. The comments of Garling J in State of NSW v Sturgeon [2019] NSWSC 559 (“Sturgeon”) at [5] to [6] provide some helpful context:

“[5] A preliminary hearing does not require the Court to be satisfied that the matters in the supporting documentation will be proved. The Court is only required to be satisfied that if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely “a high degree of probability”: s 5B and s 5C of the HRO Act.

[6] The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court’s function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney‑General of NSW v Tillman [2007] NSWCA 119 at [98].”

35. In State of NSW v Heness (Preliminary) [2019] NSWSC 1710 (“Heness”) at [28] to [29] Fullerton J set out her views as to what “weighing” means in the context of the evaluative exercise the Court is to undertake at the preliminary hearing stage and so the status of any s 135 Evidence Act-type objection:

“[28] In the hearing, I determined that the evidence relating to the 1997 charges was admissible in that it was capable, even if in a very limited way, of bearing upon the likelihood of the defendant committing a serious sex offence in the future and, in that way, capable of informing the question whether the acceptable risk precondition is satisfied. I also determined that this was not a forum where the discretion in s 135 of the Evidence Act had any meaningful application. Here the Court is engaged in an evaluative exercise (both as the tribunal of fact and the tribunal of law) as to whether a statutory test has been met so as to engage the jurisdiction of the Court to make orders for the extended supervision of the defendant if satisfied of that fact at a prima facie level. Viewed in that way, there is no practical sense in which the risk of the unfair prejudice with which s 135 is concerned has any meaningful operation in deciding that question in a preliminary hearing.

[29] I was, however, unprepared to accede to Mr McGorey’s submission that the evaluative exercise engaged on this application eschews considerations of the weight of the supporting documentation. While it is true that in a preliminary hearing the Court is not to “weigh” the documentation for the purposes of predicting the ultimate outcome of the proceedings, in my view the evaluative exercise in which the Court is engaged in the preliminary hearing necessarily involves an assessment of the “weight” of particular aspects of the evidence, equally as it does the “weight” of the supporting documentation as a whole, when determining whether the State has evidence capable of discharging the burden of establishing that “the unacceptable risk precondition” is met such that interim orders might be made subject to the exercise of discretion.”

36. I agree with the remarks of Garling J in Sturgeon and the conclusions by Fullerton J in Heness. Section 135 of the Evidence Act has no role to play in a preliminary hearing under the Act. The Police Facts Sheet will not be excluded from evidence, however the nature and role of that document must be evaluated and considered in context, that is, that it comprises a summary prepared by a police officer as to what police assert occurred on that day that provided the basis for the charge of intimidate police officer in the execution of his duty. It cannot be any more or any less than that.

Principles for the evaluative task in s 5C(d) of the Act - “unacceptable risk”

37. These principles can be summarised as follows:

• The unacceptable risk test in s 5C(d) is an evaluative task and requires the exercise of a discretionary judgment: Lynn v State of New South Wales [2016] NSWCA 57 (“Lynn”) at [82] per Basten JA. The objects of the Act should be held in mind when undertaking this evaluative task: Lynn per Beazley P at [55].

• Intrusions on a defendant’s right to liberty and privacy by the ordering of a CDO/ESO are not relevant considerations for the first stage analysis: Lynn per Beazley P at [44]; Basten JA at [127].

• A risk is “unacceptable” if it is intolerable or outside society’s parameters of norms, expectations or standards: Lynn per Beazley P at [50] and [51].

• As Basten JA stated at [127] of Lynn: “A finding of unacceptable risk provides the basis for imposing control on the offender” and “the concept of “risk” clearly involves a risk to the community; although the qualifier “unacceptable” could be read in an extended sense as meaning deemed unacceptable by the Court, it is still the composite phrase which must be understood as referring to a risk to the community”.

• The nature of the risk posed by LC is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be considered in the absence of supervision: Lynn per Basten JA at [126] and Beazley P at [51].

• Determining what is an “unacceptable risk” includes a consideration of the type and nature of the offences that have been committed absent supervision. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] Harrison J observed:

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

• Fagan J in State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161 stated at [32], after examining the judgment of Lynn that:

“The determination of whether a risk of future offending by an individual is unacceptable can only be made by reference to a standard. The generality of s 5C(d) necessarily requires the Court to measure the degree of risk that has been established in respect of the defendant against the level that the Court considers the community must accept. Is the likelihood of the defendant re-offending so high and the harm from an offence he is likely to commit so great that the community should not be expected to live with the risk? The judgment is to be made using the Court’s experience of the incidence of violent and sexual crime generally, the range of seriousness of crimes that may be committed and the effects of various forms of offending upon victims and the wider community…”

• The Court may legitimately find a person poses an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of them committing a further serious offence is determined to be low: State of New South Wales v Kamm (Final) [2016] NSWSC 1 per Harrison J at [43]; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 per R A Hulme J at [13].

• There is no requirement when considering whether s 5C(d) is met to consider whether the unacceptable risk would be diminished by the making of an order. That analysis is invoked at the second stage of considering whether a CDO or ESO should be granted: Tannous v State of New South Wales [2020] NSWCA 261 at [59].

• The standard to which the Court must be satisfied that LC poses an unacceptable risk of committing a further serious offence is higher than the civil standard of proof and is “beyond more probably than not”: Cornwall v Attorney-General for New South Wales [2007] NSWCA 374. However, the court does not need to find that LC is more likely than not to commit a serious offence to find he poses an unacceptable risk: s 5D.

Relevant statutory considerations in determining whether to make an ISO: s 9(3) of the Act

38. As noted above, in determining whether to make an ESO under the Act, the safety of the community must be the paramount consideration of the Court: s 17(2). Obviously that mandatory consideration applies equally to interim orders.

39. Section 9(3) sets out the matters to which the Court must have regard when determining whether the defendant presents as an unacceptable risk if not kept under supervision under the order. Those relevant to this preliminary stage are:

9   Determination of application for extended supervision order

…

(3)  In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—

(a) …

(b) …

(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)  the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000  or the Child Protection (Offenders Prohibition Orders) Act 2004,

(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.

…

Evidence in the supporting documentation of the matters required to be considered under s 9(3)

Prior criminal history and pattern of offending: s 9(3)(h)

40. LC was convicted of assault police, 2 counts, resist or hinder arrest and malicious damage in 1996.

41. This was followed by a conviction for shooting a man he did not know in a brothel in December 1996. The agreed facts tendered on sentence state that on 17 December 1996, LC drank alcohol and smoked cannabis. He entered a unit in a brothel carrying a shotgun. Inside the unit were Ms Thomas and Mr Pagett (the victim). Ms Thomas asked LC if she could help him and LC replied that he wanted to see "Nina". Ms Thomas would not let LC see Nina. Mr Pagett asked LC his name and LC pointed the shotgun at Mr Pagett and said "you want to know my name" and shot Mr Pagett in the throat.

42. The September 2020 intimidation of a police officer in the execution of his duty was, it seems, born of rage and frustration. On 18 September 2020, police attended LC's premises to discuss the firearms and weapons prohibition orders served that day. LC became defensive and aggressive and claimed police were harassing him. He screamed at police words to the effect that if the officer who had attended his residence the previous day returned, he would cut his head off and set him on fire. LC was observed to became extremely aggressive and repeated that he was not like other criminals and he would do what he threatened to do. Police feared for the officer’s safety.

Views of the sentencing court: s 9(3)(h1)

43. Greg James J found the shooting in 1996 was impulsive and unpremeditated. His Honour stated at [28]:

"I accept that this is a severely disturbed young man who during that period was affected by the use of various drugs, was violent in an irrational way and who had over the preceding years grown more disturbed and more violent progressively ... "

His Honour found special circumstances because of the need for a longer period of parole for rehabilitation.

44. As noted in the discussion of the index offending, in sentencing LC, Hidden J took the view that the defendant had reduced criminality given the evidence of emotional and physical abuse he suffered during his childhood as well as his underlying personality disorder.

Compliance with parole and supervision obligations: s 9(3)(f)

45. This has been an issue in the past although less so over the last year. The defendant has been non-compliant with requirements of parole on previous releases leading to revocation of parole.

46. Whilst it is true that the defendant did not breach his most recent parole by violent offending, there was on his part intimidation and voluble and graphic threats of violence made towards a police officer doing his job.

Violent offender treatment or rehabilitation programs: s 9(3)(e)

47. LC engaged in the Violent Offenders Therapeutic Program (VOTP) between August 2016 to March 2017 in custody. The VOTP report dated 21 April 2014 authored by Tara Rouse and Gillian Tulloh stated that LC demonstrated remorse for the victim (although not full acceptance of responsibility) and that he demonstrated significant grief for what was done. LC also showed remorse for the victim's family for the first manslaughter, and in particular the victim's children.

48. Pre-treatment, LC scored 49.5% on the Violence Risk Score (VRS) (this is an actuarial tool designed to assess the risk of violent reoffending). Those offenders with the same score were criminally convicted of new violent offences within 5 years of release. This pre-treatment score put him in the high-risk category of violent reoffending with 14 of 20 risk factors rated as high treatment needs. After the program, LC's VRS score was 39.5%. Those offenders with the same score were convicted of a new violent offence within 5 years of release.

49. He also endorsed attitudes supportive of violence and often justified his previous episodes of violence. The report commented on LC's history of "routinely carrying a weapon" during periods of his life. During the course of treatment, LC was able to acknowledge the problems that weapons cause and that he had made advances in this area, identifying the risks of carrying a weapon and minimising his access to weapons.

50. Ms Tulloh and Ms Rouse go on to state in the report that LC developed practical strategies to manage his risk factors and made gains on all of his 19 risk factors during the course of treatment and has achieved as much as reasonably expected with someone with his risk profile over the course of an 8 month treatment program.

51. It was noted that LC had insight into his violent beliefs, and viewed them as protective and useful but engaged in actively re-thinking those beliefs. The report concluded:

“... to his credit LC has been forthright with information pertaining to his expression of [BPD] traits and his emotion management difficulties. Similarly he presented as genuinely motivated to change both the intensity of emotions he experiences as well as the resulting problematic behaviour stemming from such emotions. Much of the individual and group work sessions targeted such risk factors, culminating in LC acknowledging that he has BPD and how his BPD traits express themselves as well as the impact that such behaviours have on his relationships. He engaged in appropriate coping strategies to reduce his heightened emotions such as isolating himself, taking a time out, 'riding the wave' of emotions and breathing techniques. He has also adopted cognitive restructuring skills such as identifying and challenging his cognitive distortions and replacing them with more realistic and helpful thoughts."

52. Recommendations were made to reduce LC’s risks, including VOTP Maintenance (which LC attends and has done for five years), monitoring his distress tolerance techniques, (which is being done through VOTP Maintenance), maintaining quality relationships with family, and non-association with criminal peers.

53. Ms Tulloch and Ms Rouse considered that LC may violently re-offend if he were not managing his risk factors and/or experienced the loss of positive goals. LC may lapse into violent behaviour if he believes someone has behaved in a manner that contradicts his values and required punishment. Alternatively, a high risk scenario would include a relationship break down. The authors considered that management of risk involved LC improving his level of functioning in these risk areas.

54. As at May 2020, LC was participating in VOTP Maintenance and had already completed EQUIPS Domestic Abuse, Getting SMART, SMART Recovery and Managing Emotions and Anger Management programs.

55. An old drug and alcohol report dated 19 January 2005 set out that LC completed the Basic Alternatives to Violence Course as well as Relapse Prevention, AOD Awareness and HIV Health Promotion courses. LC was also receiving one-on-one counselling on a regular basis whilst at St Heliers Correctional Centre. The report writer noted that LC displayed insight into his drug use and associated risks.

56. Dr Parker noted in his April 2022 report that since his release in June 2020, while LC attended all appointments and participated in discussions, others have reported that his engagement in VOTP “appears to be superficial”.

Expert assessments by psychologists or psychiatrists as to the likelihood of LC committing a further serious offence and the results of any statistical or other assessment as to the likelihood of the offender committing a further serious violence offence: s 9(3)(c) and (d)

57. Other than Dr Parker’s April 2022 report and a 2013 review by a psychologist for the purposes of the Serious Offences Review Council, all of these assessments are at least twelve years old, and are focused on examining whether LC had a mental illness or abnormality of mind in 2007 or 1996 such that a partial defence to murder could be established. In that context there was little if anything specifically directed to the likelihood of him committing a further serious violence offence.

58. Five psychiatrists assessed LC in the context of his sentencing hearing in 2000 for the 1996 shooting. Each offered a view on the question of whether the defendant had a mental illness or disorder.

59. Dr Westmore diagnosed borderline personality disorder and severe depression, concluding that LC’s mood disturbance was significant and substantial and arose in part because of his dysfunctional personality. He described LC at that time as a man with few coping skills, particularly in terms of emotional disappointments arising from broken or dysfunctional relationships.

60. Dr Strum also made a diagnosis of borderline personality disorder and severe depression. He concluded that the depression is part of his personality disorder and that alcohol and drugs contributed to the offending, but were not the predominant issue that caused the abnormality of mind.

61. Dr Skinner diagnosed borderline personality disorder characterised by a pervasive pattern of instability of interpersonal relationships and marked impulsivity.

62. Professor Hayes diagnosed borderline personality disorder and severe depression concluding that:

“LC was very agitated when he went to the brothel and his ability to assess the situation in a calm and rational manner was grossly impaired. The confusion and agitation and the inability to cope with his emotional feelings, were a result of severe personality disorder, the substance abuse at the time and his chronic depression. Nevertheless, these tendencies were exacerbated by his deficits in the ability to see alternate solutions to new problems as they presented themselves to LC.”

63. Dr Wilcox took a history that outlined LC’s escalating use of drugs and his self-mutilation and distress leading up to the time of the offences. She diagnosed borderline personality disorder with anti-social traits. She described this as:

“An enduring pattern of inner experience and behaviour that deviates markedly from the expectation of the individual’s culture and is pervasive and inflexible, has an onset in adolescence is stable over time and leads to distress and impairment”.

She concluded that LC’s severe personality disorder can be viewed as an abnormality of mind and because of that, he experienced a substantial impairment in his capacity to resist an impulse. She concluded:

“The appropriate treatment for a Borderline Personality Disorder is psychotherapy. Medication is used to treat symptoms but does not bring about a change in the personality. It is highly unlikely that LC will get the appropriate treatment for his condition in custody however many of the dysfunctional aspects of this type of personality diminish as the individual matures and there has already been some improvement in LC’s behaviour during the time he has spent in custody." (emphasis added).

64. In April 2010 LC was again assessed by Dr Westmore for sentencing proceedings for the 2007 manslaughter of the baby. Dr Westmore concluded:

“His personality difficulties make him vulnerable to stress. He has a history of impulsive behaviour and that appears to have some relevance to the matters now before the court.

Patients with LC’s personality difficulties will often mature and develop with the passage of time. There may be a decrease in his self harming behaviour, but his vulnerability is likely to continue for some years yet.

He requires continuing assistance in relation to his substance and alcohol abuse and he was clearly overusing prescribed medication at the time the current offence arose. Control of those particular difficulties is likely to reduce his risks of reoffending, as will continuing psychological support in relation to his problems with impulse control. It is of course of concern that he reports being in custody now for over two years but has not received any specific support or assistance from mental health professionals. The nature of the current offending behaviour will make his incarceration a difficult experience for him and he should be considered to be a prisoner at risk because of that and because of his personal vulnerabilities.”

65. A “Violent Offender Psychological Report” in September 2013 prepared for the purpose of “identifying risks/needs/responsibility factors to assist in the case management of the offender in custody” by Dr Donna Hillier, Psychologist, concluded that LC’s risk of violent re-offending was within the high range, with risk situations identified as when LC is feeling stressed, angry, overwhelmed or frustrated. She identified that this risk is “further heightened by acute substance intoxication and/or access to weapons”. This assessment was directed to identifying the need for LC to participate in the VOTP (which LC undertook, including five years on the maintenance program) and other recommendations for in custody management, including urine testing for drug use. Given its function and the fact that the report is nine years old, its content needs to be viewed in context in which it was written.

66. In his report dated April 2022, Dr Parker noted that actuarial risk estimates place LC’s risk of reoffending as “moderate” to “high” and that at the time of his assessment LC had been “relatively stable since being released from custody, but in the scheme of things six months is a relatively short period. However it does continue on from an extended period of improved behaviour in custody”.

67. Dr Parker concluded:

“LC had a disrupted childhood that failed to socialise him for normal participation in society. He developed a personality disorder, coupled with substance abuse and a range of antisocial and pro-violence attitudes.

This resulted in a chaotic lifestyle where his dysfunctional behaviours (self-harm, drugs and violence) were seen by him as the best way to deal with unpleasant emotions. These behaviours then resulted in consequences which made his life even more unpleasant, prompting him to escalate these very same behaviours. Throughout this process, he developed thinking patterns which both promoted these behaviours and served to externalise the blame for these behaviours - consequently, these same thinking patterns insulated him from the pressures that usually motivate people to modify their dysfunctional behaviour.

This in turn led to rigid and inflexible patterns of behaviour that satisfied the diagnostic criteria for personality disorders with both borderline and antisocial features. Whilst it is tempting to simply ascribe his behaviour to his diagnosis of Personality Disorder, it is important to understand that that diagnosis hinges, for a large part, on that very same behaviour. Consequently, the danger of circular reasoning is high.”

68. After a short discussion on studies on “Shame” by Nathanson (1992) Dr Parker continued:

“The cessation of self-harm (attack self) and substance abuse (avoidance) suggest that LC has made some progress in resolving his shame issues. His willingness to walk away from disagreements with his brother (avoiding attack other) is also promising in this regard.

Whilst he still appears to continue to hold some antisocial beliefs, particularly a distrust of authority figures and a reluctance to fully engage with therapy, he has seen a reduction in his criminogenic needs that moves his score on the VRS down into the moderate range. Such antisocial tendencies tend to mellow with age, and with exposure to prosocial individuals, so it is likely LC's antisocial thinking patterns will become less problematic the longer he stays out of custody (and a reduced density of antisocial cognition will make it less likely he returns to custody).

Were LC to commit further serious violence offences, it is likely that it will involve some shame-inducing event(s) which disrupt the sense of progress he has made towards an identity which is worthwhile. Such events could include family turmoil which isolates him from his family, or the disintegration (or threatened disintegration) of an intimate relationship. These events would elicit painful emotions and, if he is unable to resolve them in a functional manner, he may then return to substance abuse.

The realisation that he has reverted to such patterns of behaviour are likely to evoke further shame-inducing thoughts, such as being a failure, which then induces even higher states of shame, escalating the likelihood of invoking scripts such as attack-self and attack-other. Combined with substance abuse and implicit theories such as I get out of control, LC could revert to further violence. Any victims of such offences are most likely to be someone in the wrong place at the wrong time, rather than any particular focus on an individual or class of people, or in response to an objective provocation.

However, this would involve a downward spiral from his current state. While it is possible he could commit an act of violence in his current state, it would probably require at least a degree of provocation.

LC is a 47 year old man who has twice been convicted of manslaughter- once against a random stranger and the other against his infant stepson. In both instances he was undergoing a great deal of emotional turmoil and was abusing alcohol and other drugs.

He has been diagnosed with Personality Disorder, with both Borderline and Antisocial features, and with Depression. However, in recent years, his borderline characteristics and depression have substantially receded. He still retains some antisocial features.

Actuarial estimates of his risk of reoffending vary from moderate (VRS) to high risk (VRAG-R). However, I note his VRAG-R score places him in the second highest category of risk.” (emphasis added)

Report from Corrective Services as to management in the community: s 9(3)(d)(1)

69. There are many pages of OIMS notes in the tendered material that deal with the positive behaviour of LC upon release but also refer to some difficulties encountered by Corrective Services staff in managing him on occasion. A potentially troubling feature noted is anger and temporary withdrawal of cooperation if LC perceives he has been treated unfairly.

70. In the Risk Management Report prepared by Mr Saad and Ms Grabham of Community Corrections ESO Team dated May 2022, ongoing risk factors were noted to include (based on Dr Parker’s April 2022 assessment), criminal thinking comprising: normalisation of violence, “I am the law”, “beat or be beaten” and “I get out out of control” as well as substances abuse.

71. Mr Saad and Ms Grabham concluded that response to previous periods of supervision in the community are “underpinned by hostility towards supervision conditions and a generally anti-authority view”. None of this pre-supposes this behaviour is necessarily a precursor to any serious violence offending.

72. The report goes on to set out the usual suite of conditions including electronic monitoring and schedules and why they are required, even though the State is not actually seeking those “usual” conditions. There is a flavour of formulaic approach in the report that is suggestive of a lack of nuanced consideration as to what is actually necessary and appropriate to manage the risk LC presents.

Options available for reducing likelihood of reoffending: s 9(3)(e1)

73. It was submitted by Ms McGee that any risk presented by LC can be managed by the combination of the regimens of orders that apply to him. First is the CCO in place until 27 September 2024:

Standard Conditions

This Community Correction Order is subject to the following standard conditions:

(a)   You must not commit any offences.

(b)   You must appear before the court if you are called on to do so during the term of the order.

This Community Correction Order is subject to the following additional conditions:

You are subject to supervision by a Community Corrections Officer at Blacktown Community Corrections District Office for the period of the Community Correction Order.

Any courses deemed appropriate by Community Correction Office.

Supervision Conditions

You must report to a Community Corrections Officer as soon as practicable but no later than 7 days from the date of this order.

You must report to a Community Corrections Officer at the times and places directed by the officer.

You must comply with all reasonable directions from a Community Corrections Officer about:

(a)   the place where you will live

(b)   participating in programs, treatment, interventions or other related activities

(c)   participating in employment, education, training or other related activities

(d)   not undertaking specified employment, education, training, volunteer, leisure or other activities

(e)   not associating with specified people

(f)   not visiting or frequenting specified places or areas

(g)   ceasing drug use

(h)   ceasing or reducing alcohol use

(i)   drug and alcohol testing

(j)   monitoring your compliance with the order

(k)   giving consent to third parties to provide information to the officer that is relevant to your compliance with the order.

You must comply with any other reasonable directions from a Community Corrections Officer.

You must permit a Community Corrections Officer to visit you at the place where you live at any time, and permit the officer to enter the premises when they visit you.

You must notify a Community Corrections Officer if you change your address, contact details or employment. You must do this before the change occurs if practicable, or within 7 days of the change occurring.

74. The firearms prohibition order makes it an offence for LC to acquire a firearm or firearm part or ammunition, or possess ammunition or a firearm or firearm part or to attend a firearms dealer or shooting range and police are permitted to detain him, enter his premises and search as well as to search LC personally or any vehicle or vessel occupied by him.

75. The weapons prohibition order has the effect that LC must not possess or use a prohibited weapon (as defined). There is a potential maximum penalty if LC does so of 10 years imprisonment. The order provides that any weapon found in or on any premises he is occupying is taken to be his.

76. The framework for supervision under the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”) was set out comprehensively in Ms McGee’s written submissions:

• The CPOR order does not list the particular conditions of that order. The order simply states the application under s. 3F(l) of the CPOR Act is granted. That section provides that the Local Court may order a person to "comply with the reporting obligations of this Act";

• Importantly, the power to impose such an order arises only where the Local Court is satisfied the person "poses a risk to the lives ... of one or more children, or of children generally": s 3F(2). The making of the order is therefore pre-conditioned on a form of risk assessment relevant to that this Court must undertake.

• The extensive reporting obligations that apply under the CPOR order are set out in Part 3 of the CPOR Act. A person is required to report to the Commissioner of Police "relevant personal information", which is identified in ss 9(1), (1A), (1B) and 11(A) to 11(F).

• The scope of mandatory reportable relevant personal information is extensive. It includes:

1. The address of each of the premises at which the person generally resides. Any intended change to this must also be reported at least 14 days before changing the place, with the particular address to be reported, except in emergency or other exceptional circumstances.

2. In relation to any work, the nature of the work, the name of employer, and the address of each of the premise at which the person generally works or the name of each of the localities in which the person generally works.

3. Details of any carriage service used or intended to be used, including phone numbers.

4. Details of any internet service provider or provider of a carriage service used or intended to be used.

5. Details of the type of internet connection used or intended to be used.

6. Details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used.

7. The name and date of birth of each child who generally resides in the same household as that in which the person generally resides.

8. Any physical contact, oral communication or written communication had with a child whom the person has supervised or care for, or visited or stayed in the household where the child is present, or exchanged contact details with, or attempted to befriend.

9. Details of affiliation with any club or organisation that has child membership or child participation.

10. Particulars of any motor vehicle owned, hired or generally driven by the person.

11. Particulars of any intended travel outside of NSW on an average of at least once a month, including the reasons for this, frequency and destinations; as well as any intended travel outside of NSW for 14 or more consecutive days or out of Australia.

• Following an initial report of all relevant personal information, the defendant must report any changes in the information within 7 days of any change occurring, and within 24 hours in the case of a change in the s 9(1)(e) (when children reside in the same household): s 11(1).

• The defendant must additionally report all of his relevant personal information annually: s 10. If the defendant enters into custody for more than 14 days, he must report all information again within 7 days of release: s 11(4).

• Section 16C provides for a means of enforcement and monitoring of the reporting obligations. "One or more police officers may, without prior notice, enter and inspect any residential premises of a registrable person for the purpose of verifying any relevant information reported by the registrable person under s 9": s 16C(1).

• The power to inspect residential premises has been interpreted and applied by police without challenge as encompassing a power to search a person's mobile phone, as reported by the defendant in his evidence.

Division 8 of Part 3 creates two offences, each punishable by 5 years imprisonment, arising from reporting obligations under a CPOR order:

         (a)       Failing to comply with reporting obligations without reasonable excuse: s 17.

(b) Furnishing false or misleading information in purported compliance with Part 3 (Reporting obligations): s 18.

77. Ms McGee submitted that there is evidence of police acting on these obligations and checking in on LC and that LC’s compliance with these obligations has been exemplary. The CPOR order would expire in 2028.

78. Ms McGee submitted that LC’s current risk of committing a violence offence (as opposed to a serious violence offence) was rated as moderate, and that his risk is likely to be able to be managed in the community by the supervision provided by the CCO in place until September 2024 and the requirements of the weapons and firearms prohibition orders and the requirements of the CPORAct in place until 2028.

79. Ms McGee also submitted that the proposed 52 conditions of the ISO add nothing by way of addressing any risk of committing a serious violence offence that is not already covered in those other regimes and requirements, (although the evaluation I need to make at this initial stage is whether, absent an ISO, I am satisfied to a high degree of probability on the evidence tendered that LC poses an unacceptable risk of committing a serious violence offence, rather than assessing how the proposed ISO may ameliorate that risk).

77. Mr Aitken on behalf of the State argued that the purpose of the CCO and the statutory regimes for weapons and firearms prohibition and child protection are very different, that a high risk offender order is specifically directed to risk, and this Court should not be “distracted” by aspects of those other regimes and the CCO that may seem, on their face, to be similar to conditions of the proposed ISO. I am unpersuaded by that argument. A number of the ISO proposed conditions in fact mirror or replicate the CCO and weapons and firearms prohibitions orders, the obligations under the CPOR Act are comprehensive and the statutory regimes of this actively and directly involve the police in a supervisory and investigative role.

Likelihood of compliance with ESO: s 9(3)(e2)

81. This is a slightly complicated issue and has required a careful reading and consideration of all of the material tendered including the more recent OIMS case notes. As demonstrated in the past in the two periods on parole, LC seems to be going well, and then will suddenly career out of control with violence of a most serious kind, (2007), and threats of violence (in September 2020). He has however, to his credit, worked hard at strategies to manage his overwhelming emotions. I am satisfied that he has ceased using alcohol and non-prescribed medications. His cooperation with parole requirements since October 2021, whilst the subject of complaint by him on occasion regarding things he sees as unfair, has been responsive, intelligent and constructive.

Decision - Unacceptable risk - is the statutory test in s 5B(d) satisfied?

82. I have considered all of the material tendered by the State on this application including the historical assessments by well-qualified psychiatrists regarding LC’s personality disorder, the 2013 and 2022 psychological assessments, his very difficult upbringing and his periods of self-abuse, drug and alcohol abuse and distress. He has in my view made very significant strides towards addressing his negative patterns of behaviour and negative thoughts about himself. He has cooperated and learnt from the strategies taught.

83. He has been assessed as in the “moderate” to “high risk” category for violent reoffending, more recently (and so more relevantly) in the “moderate” category, although the significant limitations around the risk assessment tools utilised have been acknowledged by those who use them.

84. None of those tools assess the risk of committing a serious violence offence with which this Act is concerned.

85. LC has borderline personality disorder, but the experts observed that the effects of this disorder on behaviour can, and do, recede with time.

86. He has ceased abusing drugs and alcohol. He has sought out and focused on people - his siblings - and things that matter to him such as reconnecting with country and culture. He is now 48 years old. He has participated in multiple risk reducing programs and therapies over many years that were prescribed to him for the purpose of addressing his criminal thinking and behaviours with good gains and understanding. His last serious violence offence was 15 years ago in a situation of high stress, immaturity and significant drug abuse.

87. The supervision in the community under the CCO and the requirements of the statutory regimes to which he is subject and the orders that prohibit gun and weapon possession and the policing of those matters are also all protective matters.

88. I am not satisfied to a high degree of probability that LC poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order.

89. I am persuaded by Ms McGee’s submissions, as well as by the evidence of LC’s own evolution in understanding and managing his difficulties, his efforts to structure a life where he can manage stresses and avoid violent offending and his obvious and sustained commitment to maintaining abstinence from drugs and alcohol.

Orders:

90. I make the following orders:

1. The Summons is dismissed.

2. The plaintiff to pay the defendant’s costs.

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Amendments

16 December 2022 - [28] line 1 - correction to the surname of Ms Fisher

Decision last updated: 16 December 2022