State of New South Wales v Lynn (Final)

[2020] NSWSC 1584

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Lynn (Final) [2020] NSWSC 1584

Hearing dates:

20 October and 5 November 2020

Decision date:

12 November 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) The defendant is subject to an Extended Supervision Order for a period of 18 months, subject to the attached conditions.

(2) 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.

(3) The defendant is to provide written submissions regarding costs by email to chambers by 5:00pm Thursday 19 November 2020;

(4) The plaintiff to provide written submissions in reply by email to chambers by 5:00pm Thursday 26 November 2020.

Catchwords:

HIGH RISK OFFENDER – final hearing – application for a continuing detention order – offences of violence – completion of the Violent Offenders Treatment Program in custody – whether the defendant poses an unacceptable risk of committing a serious violence offence – extended supervision order granted for 18 months

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Lynn v State of New South Wales [2019] NSWCA 300

State of New South Wales v Lynn (Final) [2019] NSWSC 580

State of New South Wales v Lynn (Preliminary) [2020] NSWSC 1066

State of New South Wales v Lynn [2013] NSWSC 1147

State of New South Wales v Lynn [2015] NSWSC 665

State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Scott David Lynn (Defendant)

Representation:

Counsel:
J Emmett SC; R Sud (Plaintiff)
E Kerkyasharian (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid New South Wales (Defendant)

File Number(s):

2020/200144

Judgment

1. HIS HONOUR: The plaintiff, being the State of New South Wales, commenced proceedings by summons filed on 6 July 2020 against the defendant, Scott Lynn, seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The summons sought interim orders, including orders for the appointment of forensic experts to furnish the Court with reports for a final hearing, and that the defendant be subject to an interim detention order (“IDO”) for a period of 28 days. The application for interim orders was determined by N Adams J in favour of the plaintiff: State of New South Wales v Lynn (Preliminary) [2020] NSWSC 1066 (“the preliminary judgment”).

2. By way of final relief, the summons seeks a continuing detention order (“CDO”) for a period of 3 years and, in the alternative, that the defendant be subject to an extended supervision order (“ESO”) for a period of 5 years. The defendant is presently subject to a CDO that was ordered by me on 17 May 2019 for a period of 15 months: State of New South Wales v Lynn (Final) [2019] NSWSC 580 (“the 2019 judgment”). The CDO expired on 16 August 2020 and the IDO has been subject to ordered extensions, the last of which will expire on 13 November 2020.

The background to the application

3. In reviewing the material and reports as to the defendant’s criminal, personal and mental health history and mental health and risk assessments that have been tendered by the plaintiff on this application, I will at times repeat or paraphrase summaries of the same material from my 2019 judgment.

The defendant’s criminal history prior to the index offence

4. The defendant is aged 44. He has an extensive criminal history dating back to 1991, when he was aged 14. His first matter involving violence was the following year, being assault police.

5. In the 2019 judgment, I referred, at [4], to a violent attack that was dealt with in the Children’s Court when the defendant was aged 17. The police facts were:

“At 11.40pm on Friday 13 August, 1993, Police attended the Court House Hotel in Peel Street, Tamworth in relation to an alleged assault. Upon arrival saw the victim lying in an apparent unconscious state on the floor, near the pool table, being attended to by Ambulance officers. Whilst assisting the ambulance where possible, two male patrons of the hotel approached Police, stating that they had seen the whole incident. Apparently the victim had been leaning over the pool table, executing a shot, when the defendant, who was standing behind him, struck him in the rear of the head with a closed right fist. This caused the victim to fall to the floor, apparently unconscious. Then a friend of the defendant grabbed the defendant by the arms and tried to leave the hotel. The defendant broke free of the hold and went back to where the victim was lying on the floor and stomped on his head with his foot. Then the defendant's friend took hold of him again and they both left the hotel.”

6. The defendant’s first drug offence was for possession of heroin, in 1994 when he was aged 18. His first prison sentence was the same year, for a break, enter and steal.

7. The defendant has an extensive criminal record of violence as an adult. In the preliminary judgment, N Adams J referred to an uncontested summary of the defendant’s offending provided by the plaintiff, which had been compiled from past judgments and the defendant’s criminal record. It began with an event in December 1996, when the defendant was aged 20. Her Honour said:

“31   In December 1996, [the defendant] was visiting his de facto partner at a residential drug and alcohol facility where he fell asleep. On being awakened, he became aggressive and threw a clock at the wall. This happened in the presence of a female staff member. When a male resident intervened and tried to get him outside the premises, [the defendant] kneed him in the groin, punched him in the face and pushed him into the front wall of the premises, causing a hole in the fibro. He was then pushed into a glass pane window, which smashed. People came to the victim's aid and the two men were separated. [The defendant] was seen shortly afterwards threatening other people with a knife. This led to a conviction for common assault, for which he was placed on a bond.

32   In July 1997, [the defendant] was seen stealing clothing from a department store and when a security staff confronted him he responded aggressively and ran from the store. When he was apprehended by another employee, [the defendant] picked up a pair of scissors from a desk and threatened staff with them before leaving.

33   In August 1997, [the defendant] was seen stealing items from a department store and attempted to strike a security officer. He produced a folding knife from his clothing and unfolded the blade. To avoid being stabbed, the officer kicked him in the chest. Other officers came and restrained and handcuffed [the defendant]. That led to his conviction on two counts of common assault.

34   In October 1998, [the defendant] was staying at a hotel at Tamworth. Three police officers entered his room and he assaulted them by pushing one of them into a television set, charging at another, and kicking two of them as he was restrained and handcuffed. He was convicted of assaulting police and sentenced to imprisonment for 16 months, comprising a minimum term of 4 months and an additional term of 12 months.

35   In March 1999, [the defendant] stole items from a clothing store and when two men tried to detain him he assaulted them. He was charged with two counts of common assault.

36   In February 2000, [the defendant] was seen to be stealing items from a department store and, when a security officer approached him, he threatened to stab the officer with a syringe. He was convicted of using an offensive weapon to prevent his lawful apprehension and sentenced to imprisonment for 2 years with a non-parole period of 12 months.

37   In October 2002, [the defendant’s] cell was searched and a metal object described as a ‘shiv’ was found.

38   In June 2002, [the defendant] had an argument with his sister’s partner. He produced a knife and the victim, fearing that he would be stabbed, struck the defendant with a broom handle. The defendant then picked up a tomato stake and struck the victim with it several times, causing lacerations to his chest and arms. He was convicted of assault occasioning actual bodily harm and sentenced to imprisonment for 9 months.

39   In June 2003, [the defendant] threw a bottle at a taxi. When the driver got out of the car to inspect the damage, [the defendant] threatened him with a knife. He also grabbed a bottle and broke it (so that it had jagged edges), and approached the taxi driver, who feared that he was to be stabbed. [The defendant] desisted when another person drove a vehicle towards him, causing him to step back onto the kerb. Soon afterwards, while still carrying a knife, [the defendant] got into an argument with a woman and slapped her across the face. When a man intervened on behalf of the woman, [the defendant] threatened to kill him and another person. He picked up a number of beer bottles and threw them at one of those persons, hitting him on the head and, while wielding a knife, threatened another man who intervened. Police arrived and [the defendant] threw the knife away and ran, but was arrested after a struggle. As a result of this incident, he was convicted of using an offensive weapon with intent to commit an indictable offence, and a number of charges of common assault, a charge of having custody of a knife in a public place. Other related charges were taken into account on a Form 1.

40   In December 2004, [the defendant] had an altercation with his uncle and threatened to kill him. He was charged with common assault.

41   In January 2005, [the defendant] was found to have broken into his grandmother’s home. When his uncle said that he would call the police, [the defendant] threatened to kill him. [The defendant] followed his uncle when he walked outside prompting his grandmother to call out that he had a knife. [The defendant], who was holding ‘an object’ in his hand, confronted his uncle and when the uncle asked him to leave, [the defendant] threatened him, pushed a finger into his nose and spat in his face. [The defendant’s] grandmother and the uncle reported the incident to police and when two officers arrived at the house [the defendant] assaulted one of them and fled. He was arrested three days later and charged with common assault and assaulting police.

42   In September 2005, [the defendant] was found in possession of a knife at Parklea Correctional Centre and was charged with possessing an offensive weapon for which he received a fine.”

The index offence

8. In the 2019 judgment, at [5], I summarised the index offence as follows:

“In 2006, whilst the subject of a good behaviour bond, the defendant killed an adult male following a chance encounter and brief verbal exchange in a Parramatta street. Three or four weeks earlier, they fought each other with fists. Death was occasioned by one stab wound to the deceased’s neck. The deceased was unarmed. Following a hung jury on his trial for murder, the Crown accepted a plea to manslaughter on the basis of excessive self-defence. He was sentenced to seven years with a non-parole period of 4 years and 6 months. The non-parole period expired on 17 February 2011 and the total sentence on 17 August 2013. The learned sentencing judge, Hidden J, stated, at [20], ‘I believe that [the defendant] lacks appropriate insight into his criminality on this occasion, as he does in relation to past offences’: R v Lynn [2008] NSWSC 1122.”

The defendant’s criminal and custodial history since the index offence

9. The non-parole period for the defendant’s manslaughter sentence expired on 17 February 2011, although he was not released to parole until 17 February 2013, which was to a half-way house for prisoners. Six weeks later, he suffered a heroin overdose and in May 2013, methylamphetamine was detected in his blood. His parole was revoked, and he served the balance of his sentence.

10. The plaintiff sought an ISO, which was ordered by this Court two days before the expiration of his total sentence: State of New South Wales v Lynn [2013] NSWSC 1147. The defendant was released on 17 August 2013, conditional upon him residing in a Community Offenders Support Program residence (“COSP”). On 17 December 2013, an ESO was imposed for a period of 3 years, to expire on 16 December 2016: State of New South Wales v Lynn [2015] NSWSC 665. In his judgment, Hidden J reviewed the defendant’s custody disciplinary record, at [24]:

“Throughout his various periods in custody the defendant has been dealt with for fifty-four misconduct charges. Eight of them were for violent conduct, described either as fighting or assaults, and seven of them for aggressive behaviour, described as intimidation, threatening behaviour, or threatening or abusive language. His behaviour in custody included an occasion in 2002 when, resisting an attempt by two officers to move him to another wing, he bit one of the officers on the arm. In October 2006, while he was in custody in respect of the manslaughter, he attempted to strike another prisoner with a sharpened metal object. On 15 February 2013, two days before he was released on parole for the manslaughter, he was involved in a fight with another prisoner.”

11. Thereafter, there were multiple breaches of the ESO by the defendant, which I noted at [10] in the 2019 judgment by reference to an unchallenged summary in the plaintiff’s submissions, as follows:

“1.3. The defendant breached a condition of an interim supervision order (‘ISO’) in place prior to the granting of the ESO, resulting in a s 10 Crimes (Sentencing Procedure) Act 1999 dismissal. Since the imposition of the ESO, the defendant has been dealt with at court for breaching the order at least thirteen times (with ten occasions of charging); the first breach being charged on 7 May 2014 and the most recent proven offences being committed on 26 January 2018 (two counts of fail to comply with condition of ESO and one count of resist or hinder police, which resulted in concurrent sentences of 6 months imprisonment concluding on 25 July 2018). As a consequence he has been sentenced to periods of imprisonment on nine occasions for the breaches and on one other occasion for other offences of affray and assault occasioning actual bodily harm (‘AOABH’), which have had the effect of temporarily suspending the operation of the ESO pursuant to s 10(2) of the Act. This has resulted in a substantially later expiry date for the ESO) (at this point with the current sentence being served, calculated as at 15 April 2019, on approximately 5 August 2020).

1.4. The defendant is currently serving sentences for charges of AOABH and affray, together with one further count of fail to comply with ESO, pursuant to s 12 of the Act, imposed on 4 June 2018. Those charges were laid on 16 April 2017. The sentence imposed at first instance on all counts, concurrent, was a total term of 18 months, with a non-parole period of 12 months, to date from 4 June 2018 and expire on 3 June 2019. The defendant was found not guilty at the same hearing of accompanying charges of resist arrest and damage property.

1.5.   On appeal on 4 January 2019, the sentences were adjusted to commence on 4 March 2018 and expire on 3 September 2019, with the non-parole period to expire on 3 March 2019. The defendant’s release to statutory parole was however revoked by the State Parole Authority (‘SPA’) at a private meeting on 28 February 2019. The matter was listed for a review hearing on 29 March 2019, at which [the] SPA stood the matter over to 26 April 2019 pending a further supplementary pre-release report dealing with accommodation and pending the outcome of these CDO proceedings.

1.6. … Shortly before the application [for a CDO] was filed, the defendant had completed a sentence of four months imprisonment for a further s 12 breach, charged on 29 November 2017, and which on appeal to the District Court on 30 April 2018 had been varied to run from 12 January 2018 to 11 May 2018.”

12. I continued, at [11]-[12] of the 2019 judgment:

“The Assault Occasioning Actual Bodily Harm (AOABH) and affray charges were contested. The affray charge involved the defendant, at the end of a 24-hour period of making so much noise that neighbours were unable to sleep, approaching the victim, who was a neighbour in the same apartment block, whilst armed with a metal pole; a scuffle ensued. The magistrate, in delivering her judgment, said:

‘The evidence of all three civilian witnesses … that [the defendant] was behaving in a manner that caused Mr Adams to have to pick up a bicycle chain to defend himself, Mr Saric to pick up a spirit level to defend himself and Ms Rovira, who is a whole set of balconies away in view of him, to be so fearful that someone was going to be hurt. The noise was going on for a [long] period of time, the evidence was, and I am satisfied that [the defendant] was armed with a pole, he was banging, he was smashing; on his own evidence he had thrown a pot plant over the window. In my view he was using unlawful violence, it was reasonable for a person to fear for their safety and a particularly volatile person on that evening, he was swinging from the monkey bars, he was yelling, he was screaming.’

The AOABH charge involved the defendant fighting the neighbour who had picked up a spirit level with a metal pole and subsequently hitting him over the head, causing the neighbour to drop to the ground, where the defendant then repeatedly assaulted him using his fists and knees.”

The defendant’s background

13. The defendant was born in Tamworth. He has one sibling, a sister, who is two years older than him. His parents separated, apparently in violent circumstances, when he was aged eight. He resided with his mother until he was aged 13, when he moved in with his father. He has given a history of attending three primary schools and five high schools, finally being expelled in Year 9 for fighting. He obtained his Year 10 Certificate through TAFE.

14. When the defendant was aged 18, his father died, according to the defendant, from asbestosis.

15. At the age of 14, the defendant formed a relationship with a 15-year-old girl. They had two boys, born in 1992 and in 1997. They cohabited from when he was aged 16 until his partner’s suicide in 1999, when the defendant was aged about 23. Thereafter, their children were cared for by their maternal grandmother.

The defendant’s history of his use of alcohol and prohibited drugs

16. The defendant has admitted using cannabis and heroin since the age of about 14, and heroin intravenously for the first time when aged about 17. He also used steroids at about that time. He has admitted to amphetamines being a drug of choice in his teenage years. There is evidence from drug tests that he has used amphetamines in recent years, as well. As already noted, his parole was revoked in 2013 following his use of heroin and methamphetamine.

The defendant’s mental state

17. In the 2019 judgment, I referred to the evidence of the defendant’s mental state, as follows:

“16   The earliest report in the plaintiff’s material is a brief psychiatric report by Dr Edward Tan dated 25 August 1994, when the defendant was aged 18. Dr Tan stated:

‘His presenting complaint was one of difficulty in controlling his anger. This problem was present since the age of fourteen when he moved with his father from Sydney to Tamworth. … He did not settle well in Tamworth and ran into trouble with the school authorities and later the law. Entering into a de facto relationship and fathering a son, now aged two, did not appear to help. On the contrary he and [his partner] quarrelled frequently [and] he was recently convicted of assaulting her. They have difficulty managing their son who is hyperactive.

On examination I found him to be suffering from Personality Disorder with explosive tendencies and an associated Reactive Depression.’

17   In recent years, for different purposes, the defendant has been examined by numerous forensic psychologists (Patrick Sheehan, Danielle Matsuo, Anna Robilliard and Drs Emma Collins, Richard Parker and Chris Lemmings) and psychiatrists (Drs Richard Furst, Jeremy O’Dea, Samson Roberts and Professor David Greenberg). Their reports have been tendered by the plaintiff. He has never been diagnosed with a mental illness and does not have an intellectual disability. Rather, he has been diagnosed as having a borderline personality disorder with marked antisocial and aggressive features (Dr Robilliard) and an antisocial personality disorder (Dr Furst, Sheehan) with psychopathic traits, meaning an enduring pattern of behaviour and attitudes that negatively impact his conduct towards others (Dr Collins) and a substance use disorder (Dr Furst, Dr O’Dea).

18   A Risk Assessment Report dated 19 January 2016, prepared by Richard Parker (Senior Psychologist, Serious Offenders Assessment Unit) and Danielle Matsuo, psychologist, contained this observation:

‘While previous reports have found that [the defendant] does not suffer from a mental illness (Greenberg, 11/4/2004; Roberts 3/9/2013, O’Dea 10/9/2013), he nevertheless displays a pattern of communication which is unusual, even among high-risk offenders.

An analysis of case notes reveals he appears to misinterpret comments by others, generally by assuming a hostile interpretation of other people. While a hostile interpretation of the world is fairly common in high-risk violent offenders (Polaschek, Calvert & Gannon, 2009; Ward, 2000), the pattern with [the defendant] seems more extreme, resulting in a very limited ability to absorb information from others, bordering on a psychotic presentation explained in detail below.’

19   The authors then itemise six case notes that relate incidents in which staff had attempted to focus his attention on a particular topic but he would either impose a different agenda or make contradictory statements.

20   A later Risk Assessment Report by Dr Parker, co-authored by psychologist Cherice Cieplucha and dated 11 April 2018, offered this view:

‘[The defendant] is a person with a complex personality structure. He has extremely rigid thinking patterns, which border on psychotic. At the heart of those patterns is an extreme self-centredness, where other people’s views and well-being are consistently ignored in favour of his own interpretation of the world. Coupled with this is a pattern of thinking that perceives the world as a dangerous place, which requires him to adopt an aggressive stance towards the world. As has happened with the index offence, this could involve serious violence.’”

Provisions of the Act

18. The Act relevantly provides as follows:

Part 1A   Supervision and detention of high risk offenders

…

5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b)   the person is a supervised offender (within the meaning of section 5I), and

(c)   an application for the order is made in accordance with section 5I, and

(d)   the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

5C   Making of continuing detention orders—unacceptable risk

The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if:

(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b)   the person is a detained offender or supervised offender (within the meaning of section 13B), and

(c)   an application for the order is made in accordance with section 13B, and

(d)   the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.

…

17   Determination of application for continuing detention order

(1)   The Supreme Court may determine an application under this Part for a continuing detention order:

(a)   by making an extended supervision order, or

(b)   by making a continuing detention order, or

(c)   by dismissing the application.

(2)   In determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

…”

19. A “serious offence” is defined in the Act as follows:

“4   Definitions

(1)   In this Act:

…

serious offence means:

(a)   a serious sex offence, or

(b)   a serious violence offence.

…

serious violence offence—see section 5A.

…

5A   Definition of ‘serious violence offence’

(1)   For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person:

(a)   engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(b)   attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).

(2)   An offence that includes the elements referred to in subsection (1)(a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

(2A)   A reference in subsection (1)(a) to:

(a)   conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and

(b)   conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and

(c)   conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.

(3)   A serious indictable offence is:

(a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or

(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or

(c)   an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act.”

20. Sections 5B(a)–(c) and 5C(a)–(c) of the Act oblige the plaintiff to satisfy certain threshold requirements in their respective applications for an ESO or CDO. I note that in Lynn v State of New South Wales [2019] NSWCA 300, Leeming JA (Basten and White JJA agreeing), at [29], concluded that the offence of manslaughter committed by the defendant in 2006, to which he pleaded guilty, was a “serious violence offence” for the purposes of s 5A(1)(a) of the Act.

21. The defendant does not contest, and I am satisfied, that ss 5C(a), (b) and (c) are established; the defendant has served a sentence of imprisonment for a serious offence in custody, being the index offence of manslaughter, and at the time of the application, he was serving a CDO. The summons was filed six weeks before the CDO was to expire.

22. In relation to an ESO, the term “supervised offender” is defined in s 5I to include an offender who, when the application is made, is in custody pursuant to a CDO: s 5I(2)(b). The defendant does not dispute, and I am satisfied, that he qualifies as a “supervised offender”, by virtue of him being, at the time of the application, in custody pursuant to a CDO: ss 5I(1) and (2)(b).

23. The Act requires that an application for a CDO or ESO is to be accompanied by a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing, in the case of an ESO application, a serious offence (s 6(3)(b)), and in the case of a CDO, a further serious offence (s 14(3)(b)).

24. The Act provides that applications for a CDO or ESO must be supported by documentation that addresses certain matters, set out in s 17(4) and s 9(3) of the Act, respectively. There is considerable overlap between those provisions.

25. The Act stipulates objects and a paramount consideration, when determining an application:

“3   Objects of Act

(1)   The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2)   Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

…

5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

…

17   Determination of application for continuing detention order

(1)   …

(2)   In determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

…”

26. I note that the power to make a CDO in s 5C is discretionary. The Court may make an order for a CDO if the four prerequisites are satisfied. The matters for consideration pursuant to s 17(4) of the Act

Sections 17(4)(b), (c) and (d): forensic reports

27. The determination of a CDO application requires certain material that is identified in s 17(4) of the Act to be taken into account:

“17   Determination of application for continuing detention order

…

(4)   In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

…

(b)   the reports received from the persons appointed under section 15 (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.

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

…

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

Reports also tendered on the 2019 application

28. Sections 17(4)(b)-(e1) and (i) are matters that are the subject of reports that have been tendered by the plaintiff. Some of those reports tendered on this application were also tendered in the 2019 application. These include:

• Two Risk Assessment Reports by forensic psychiatrist, Dr R Parker, dated 19 January 2016 and 11 April 2018;

• A forensic psychiatrist’s report by Dr Richard Furst, dated 12 March 2019; and

• A forensic psychologist’s report by Dr Emma Collins, dated 25 March 2019.

29. In the 2019 judgment, I noted the following in relation to these reports:

“36   In their Risk Assessment Report dated 11 April 2018, Dr Parker and Cherice Cieplucha noted that three risk assessment tools had been utilised previously in relation to the defendant. The Level of Service Inventory-Revised (LSI-R) had been administered on 18 February 2017. The authors considered it ‘a good predictor of general (any) reoffending, but also a modest predictor of violence.’ The defendant’s score of 39 out of a possible 54 yielded an assessment of medium/high risk. Sixty-seven per cent of offenders with this rating reoffended and were returned to prison within two years.

37   The Violence Risk Appraisal Guide – Revised (VRAG-R) assesses static risk factors, to provide a probability of an individual’s risk for violent (including sexually violent) offending. Dr Parker administered the VRAG-R on the defendant in 2015. The defendant scored 94 per cent which placed him in the high-risk category. Seventy-six per cent of violent offenders with a similar score reoffended violently within 5 years, and 87 per cent within 12 years.

38   The Violence Risk Scale (VRS) is specifically designed for forensic individuals, who are being considered for release into the community after treatment. The VRS assesses both static and dynamic factors in order to provide a probability of an individual’s risk for violence, treatment targets and some other considerations. It was administered by Mr Sheehan in 2013. The defendant was classified as high risk, which is similar to a group of offenders with a violence recidivism rate of 49.5 per cent after 4.4 years.

39   The authors then considered the defendant’s suitability for programs addressing his apparent predisposition to violent offending and substance abuse.

40   In relation to violence programs, the authors noted that in the previous five years, the defendant had engaged in individual counselling with psychologists attached to the Violent Offender Therapeutic Program Maintenance (‘VOTP-M’), which is intended to provide maintenance to offenders who had graduated from the Violent Offender Therapeutic Program (‘VOTP’) in custody. The report noted: ‘Consequently, [the VOTP-M] was not designed to facilitate changes in offenders, rather to maintain changes that had already been made’. An exception had been made for the defendant, which sometimes happens for offenders subject to an ESO.

41   Dr Parker considered that community treatment was not feasible:

‘An offer of such treatment was made in the community, by myself, but [the defendant] strongly resisted this offer. It is unlikely that [the defendant] will engage in such treatment without significant and unambiguous consequences for non-participation. Consequently, a key to success will be the ability to make continual offers of treatment, but require concrete tasks from [the defendant], so that he does not divert the agenda onto other issues.’

42   Accordingly, the authors considered the option of the defendant being detained for a sufficient period to complete the VOTP, although he had twice attempted the VOTP whilst in prison. The defendant commenced the VOTP in March 2010 and was removed in July 2010 for fighting. He recommenced in October that year, and was removed in December for poor performance, involving ‘a poverty of content in his self-disclosure and a lack of ownership of his history of violence’. The defendant is recorded as having explained that he took part in the program to satisfy ‘parole’ and that he did not consider he had ever been violent.

43   The authors stated:

‘As a general rule, completion of [the] VOTP would require a custodial sentence of at least 14 months, including time for referral and assessment. However, given [the defendant’s] previous history with VOTP and his lack of cooperation with community supervision, a significantly longer period of time would be required for him to have a reasonable prospect of completing the program. Until, and unless, [the defendant] develops thinking which enables him to follow society’s rules, and feel good about that, he will remain at high risk for future violent offending. He will also continue to be very difficult to manage under supervision and pose a risk to supervising staff.’

44   However, the authors were pessimistic about even this option changing the defendant’s thinking. They stated:

‘In the event that [the defendant] is subject to a Continuing Detention Order, he would be able to complete the VOTP, although he may well refuse to do so. Even if he does complete the VOTP, given the intensity of his criminal thinking, I consider it unlikely that the VOTP will significantly alter that thinking. He would then require ongoing intensive supervision and maintenance treatment to reduce his risk of future reoffending.’

45   Pursuant to orders made by this Court on 23 November 2018, the plaintiff has furnished to the Court forensic reports by Dr Furst, dated 12 March 2019, and Dr Collins, dated 25 March 2019. Although the defendant was directed to attend examinations for the purpose of the preparation of those reports, he declined to do so.

46   Dr Furst assessed the defendant as posing a ‘very high risk of causing serious physical harm to others’. He considered that the defendant’s risk factors were unlikely to change over time, although the use of drugs or access to weapons would elevate the defendant’s risk even further. Dr Furst was of the opinion that the defendant’s risk of violence could not be managed in the community:

47   The available history, case notes, the presence of at least 14 ISO or ESO breaches, a lack of adherence to scheduling and monitoring requirements and a lack of any meaningful engagement with his treating/supervising team, indicate that [the defendant’s] risk of committing a further serious violence offence cannot be managed in the community under an ESO.

48   Dr Furst noted Dr Parker’s view that a CDO of significantly longer than 14 months would be necessary, if the goal was for the defendant to successfully complete the VOTP. Dr Furst considered that a period of ‘at least 2 years’ would be necessary. However, he shared Dr Parker’s pessimistic assessment of the prospects of the VOTP changing the defendant’s thinking even if he did complete the program. Dr Furst concluded in the last analysis, that a CDO for the longest possible period in order to protect the community was the only option.

49   Dr Collins noted the results of the three risk assessment tools in the Risk Assessment Report of Dr Parker and Ms Cieplucha, and applied an additional one, the Historical Clinical Risk Management-20, Version 3 (HCR-20 V3), which is used to assess risk of interpersonal violence across males and females aged 18 and over. There are three scales: the historical scale, the clinical scale and the risk scale.

50   The historical scale assesses the presence of a range of static factors that are problematic for the particular individual. The clinical scale assesses for the presence of dynamic, changeable factors over a specified period of 1 to 6 months. Dr Collins applied these scales to the previous 6 months, prior to her report. The ‘risk scale’ measures future risk and management planning over a specified time frame as well. Dr Collins opted to apply the risk scale for the next 6 months. The defendant scored on a range of violence factors across all three scales.

51   Dr Collins also applied a tool intended to assess positive factors: the Structured Assessment of Protective Factors for Violence Risk (‘SAPROF’), which is used to assess the presence of protective factors over a following period of up to 12 months. She applied it in the context of the defendant’s potential release into the community, should he not receive a CDO. The SAPROF tool is intended to be used together with the HCR-20 V3. The SAPROF identified some protective factors, including functional intelligence, some attachment to childhood caregivers, and some coping skills and that the defendant has demonstrated at times reasonable behaviour towards officers. The defendant also scored positively for potential for professional care.

52   However, when combining both tests, the defendant has a final risk assessment that falls within the high range, meaning that he has high risk factors, including his history of violence and other antisocial behaviour, pro-violence attitudes, poor supervision and treatment compliance, an antisocial personality disorder and some psychopathic traits, and few protective factors.

53   As to risk factors, Dr Collins stated:

‘ln [the defendant’s] case, he has demonstrated an ongoing capacity to threaten and intimidate others, to carry and use weapons, or find a weapon to inflict greater violence and which could cause serious harm and thus represent a serious offence. His history of violent offending suggests that he is quick to react to any perceived provocation, however ambiguous. Further, [the defendant] has continued to use drugs when last in the community, albeit sporadically, and which would amplify the risk of reacting impulsively towards others. His generally hostile attitudes towards others and lack of insight into risk exacerbate the potential for him to behave aggressively and violently across most situations; that is, towards strangers, supervising officers, and possibly intimate partners.’

54   Dr Collins was of the opinion that the defendant’s risk for violence could be managed under an ESO; however, given his history of non-compliance with conditions and past difficult relations with ESO staff, she considered it unlikely that an ESO would be successful in terms of adequate supervision and his compliance. She also noted the defendant’s stated opposition to being subject to an ESO and his complaints about ESO staff.

55   Dr Collins expressed support for a CDO of at least 3 years, with the objective of the defendant successfully completing a VOTP and additional programs such as the addiction and aggression program (EQUIPS).”

The defendant’s participation in a VOTP

30. In November 2019, the defendant indicated his preparedness to participate in the VOTP. He commenced the program on 5 February 2020 and completed it on 13 October 2020. A VOTP treatment report dated 26 October 2020, prepared by psychologist Helen Dimitrios, (“the VOTP Report”) reviewed his performance and made recommendations for future treatment. The report noted mixed results in the defendant’s performance:

“11.   [The defendant] was punctual and attended all group sessions despite significant stressors, specifically legal proceedings in relation to his Continuing Detention Order. [The defendant’s] participation varied over the course of treatment. At times [the defendant] demonstrated an ability to communicate in a prosocial manner and on occasion appeared willing to genuinely consider feedback from psychologists about his thinking style. Despite his reservations in completing some tasks, [the defendant] completed all mandatory treatment tasks, following individual discussions with psychologists. On occasion, he demonstrated the capacity to appropriately provide feedback to other group members. At times, [the defendant] also displayed some ability to compromise and display flexibility, including ceasing training to attend a session with psychologists with minimal warning, despite being provided with the option to reschedule. Moreover, he demonstrated the capacity to intellectually engage in cognitive restructuring of unhelpful thoughts and consequential thinking, which may minimise his likelihood of engaging in violence.

12.   However, most often [the defendant] participated minimally in group sessions (i.e., requiring specific prompting from psychologists) and his contributions were frequently tangential, focusing on his personal stressors and perceived injustices, with significant difficulty refocusing on the task. This resulted in sessions being derailed and demonstrated his continued preoccupation and mental rigidity. [The defendant] completed his written work rapidly and appeared to put sufficient effort into tasks, albeit his ability to take meaning from the program was limited by his capacity (i.e., preoccupation; mental rigidity; poor communication) and willingness to tolerate the content. He most often presented as argumentative and oppositional to session content and generally in his communication style. Furthermore he appeared to have difficulty receiving and incorporating feedback due to becoming defensive, combative and externalising blame. This included demonstrating marginal progress on improving his communication style to avoid passive-aggressive communication. At times, [the defendant] also provided feedback to other group members in an unhelpful manner. [The defendant] frequently presented as incoherent, with some of his remarks bordering on a psychotic or delusional presentation. Throughout the VOTP, [the defendant] displayed an ability to seek out support, often in relation to completing homework or trying to accelerate his program participation, or reassurance seeking regarding legal matters and stressors. However, he also [sought] out psychologists to attempt to influence their behaviour (e.g., to receive a positive report) or with an alternative agenda (e.g., to make anti­authority remarks, to berate psychologists or to vent). It is noted that [the defendant] was limited in his ability to take on board strategies or the support offered by psychologists. [The defendant’s] participation was not often impacted by his peers (i.e., when they were distractible), with the exception of a few occasions where he appeared to take amusement and/or make antisocial remarks for the benefit of his peers, including minimising and justifying their problematic behaviours.

13.   Due to his argumentative stance, passive-aggressive communication style, unwillingness to hear feedback and his minimal participation/derailing due to his preoccupation, [the defendant] was placed on a Support Plan on 28/07/2020 to therapeutically address these therapy interfering behaviours. [The defendant’s] Support Plan was extended for an additional two weeks on 25/08/2020 due to further problematic behaviours, mainly limited observed efforts to address the behaviours (including not generating strategies to improve upon his behaviour, instead focusing on the actions of others). This Support Plan was successfully completed on 08/09/2020 due to marginal improvements in group and individual sessions (i.e., some increase in participation and on occasion responding to containment) and module work. It is noted that there were some improvements in [the defendant’s] conduct in group and individual sessions in the weeks prior to his treatment completion. This included more active participation (without direct prompting from psychologists to participate) and presenting as more jovial and less argumentative. Various VOTP staff members also reported observations of more positive interactions with [the defendant] during this timeframe.

14.   Whilst housed in the VOTP [the defendant’s] conduct in the unit was appropriate, including most often complying with Correctional Centre routine and receiving no institutional misconducts. Although, it is noted that he received some negative case notes regarding being cautioned about not attending muster … [The defendant] was subject to urinalysis testing on three occasions … It is also noted that on occasion [the defendant] attended community activities and appropriately engaged with staff.

Insight and Attitude Towards Offending

15.   Throughout treatment, [the defendant] displayed limited insight into his risk factors, reporting that he does not have risk factors and/or stating that they have been effectively resolved (i.e., substance abuse). At times, [the defendant] appeared to superficially recognise risk factors and to acknowledge risk factors at one point in time whilst denying it at another. [The defendant’s] tendency to rapidly discount evidence to the contrary of his viewpoints, has resulted in a significantly reduced ability to gain further insight during the VOTP (i.e., awareness of thoughts, feelings, behaviours and triggers that precipitate and perpetuate his aggression). At treatment completion, [the defendant] continued to endorse unhelpful attitudes towards authority figures, particularly staff involved in the High Risk Offender teams. Although, it is noted that [the defendant] accepted that he engages in ‘Black and White Thinking,’ recognised an occasion of impulsively engaging in poor communication towards author, has described being mistrustful of authority figures, and demonstrated awareness into his rumination (i.e., ‘…I go back to my cell and believe me I think about everything ... talk to myself, not talk to myself, you know what I mean ... I swear they [surrounding cells/inmates] must hate me’). He also completed a list of risk factors during the completion of his Self-Management Plan (these included; boredom/no obligations, beliefs about ESO, poor communication, ‘Black and White Thinking’, work ethic/unemployment, substance abuse, criminal peers, compliance with supervision, not using community support and being released to high risk situations/unstable accommodation). [The defendant’s] awareness of these risk factors appeared somewhat superficial. For example, when asked how individuals may react when their views are challenged, [the defendant] recognised that they may become argumentative, however denied that he does so.”

31. The three urinalysis tests referred to in par (14) of the passage above were negative. At the completion of treatment, the defendant was assessed using the VRS:

“His score was compared to a group of 918 federally sentenced Canadian inmates who had been rated on the VRS. Of those offenders from this group who obtained a similar score to [the defendant], 49.5% were criminally convicted for a new violent offence in the 5 years following release to the community, which placed him in the high risk category for re-offending.”

32. The report cautioned:

“These estimates do not directly correspond to the recidivism risk of an individual offender. Whether [the defendant] is one of the 49.5% to reoffend or the 50.5% who do not reoffend violently is contingent upon his ability to manage his risk factors in the community.”

33. The report considered risk scenarios and management strategies. If the defendant reoffends, it would most likely be a re-engagement in expressive violence in response to perceived provocation or threat due to his increased sensitivity, whereby he often perceives that he is in danger. He may be likely to revert to substance abuse if engaging in “avoidance coping of emotions”. Secondly, the report identified warning signs, which included him spending increased time at home and/or associating with criminal peers at his accommodation, reduced contact with family or professional supports and reduce time spent engaging in leisure activities. The report warned that early intervention is critical, should those signs be observed. Thirdly, although during treatment the defendant showed, on occasions, an intellectual ability to engage in consequential thinking, cognitive restructuring, assertive communication, problem-solving and compromise, as well as emotion regulation strategies, these skills appeared superficial in nature. The report recommended:

“If the above risk scenarios occur, [the defendant] should be reminded to use the above-mentioned skills, as well as strengthening his peer refusal skills and assisting him to seek out meaningful activities to mitigate some of his high risk situations.”

34. The report concluded that, despite the defendant’s completion of the VOTP, he has criminogenic needs which are likely to affect his risk of reoffending. The report made specific recommendations, some of which were as follows:

• that he be referred to the VOTP Maintenance and Outreach Program;

• that he develop insight into high risk situations and risk factors and practice the utilisation of strategies to mitigate his risk. The report noted:

“[The defendant] would benefit from professional supports in the community to aid in developing his insight and subsequent strategies, including identifying and working through live examples (e.g., conflict or difficulty communicating with Community Corrections staff)”;

• that he be subject to regular urinalysis testing. The report recommended that if the defendant lapsed or expressed difficulty with urges and cravings, it may be useful to refer him to interventions to assist with abstinence. Some specific services were recommended.

Fresh reports tendered on this application

Risk Assessment Report, Dr Parker

35. The preliminary application was accompanied by a Risk Assessment Report by Dr Parker, dated 2 June 2020. The defendant declined to be interviewed for the report. Dr Parker noted the defendant’s LSI-R assessment in 2017, that is referred to at [36] of the 2019 judgment, quoted at [29] above, which is a “medium/high risk or general reoffending”. On 6 May 2020, Dr Parker re-scored the defendant on the VRAG-R for the risk of violent re-offending, and arrived at a slightly lower figure of 91 per cent than he did in 2015, which was 94 per cent: see [37] of the 2019 judgment. The defendant remained at a high risk of violent re-offending. Dr Parker referred to a psychologist, Mr Sheehan, scoring the defendant on the VRS in 2013 as “high risk”, and considered there would likely be a “very similar” score if he was re-assessed: see [38] of the 2019 judgment.

36. At the time of preparing his report, Dr Parker had available to him the defendant’s VOTP progress notes. At that stage, the defendant had not completed the program and Dr Parker was of the opinion that he was unlikely to do so before the CDO expired. Dr Parker stated:

“80   … Even if he does complete the VOTP, given the intensity of his criminal thinking, I consider it unlikely that the VOTP will significantly alter that thinking. He would then require ongoing intensive supervision and maintenance treatment to reduce his risk of future offending.

81   If another ESO is imposed, he would then receive intensive supervision and case management by [Corrective Services New South Wales] – albeit with the restrictions noted earlier. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and attending programs to address his criminogenic needs. Based on his history, it is considered unlikely that he would comply with such supervision, and concerns for staff safety will limit the ability to contain risk. Unless he is coerced into participating in effective treatment, the risk of further violence is likely to continue into the foreseeable future.”

Risk Management Report, Shantelle Hodgkinson

37. Shantelle Hodgkinson, who is a Community Corrections Officer with the ESO Team, prepared a Risk Management Report dated 25 June 2020. In her report, Ms Hodgkinson reviewed the defendant’s criminal history and poor past compliance with conditional liberty and noted that he had been moved to the Long Bay Correctional Centre to facilitate him participating in the VOTP. She stated:

“It is positive to note that since being housed in Long Bay Correctional Centre [the defendant] has not incurred any institutional misconduct charges. [The defendant] prior to this has incurred institutional charges for fighting, damaging property and possession of a prohibitive drug.

[The defendant] was interviewed by author on 19 and 23 June 2020 where it is noted he engaged and presented in an appropriate manner. Whilst [the defendant] spoke over Author during the interview he did not behave in an aggressive or intimidating manner. Accommodation options were canvassed with [the defendant] to which he agreed to sign the terms and conditions of Nunyara COSP. [The defendant] advised Author that he would not be a behavioural issue at the COSP despite his previous refusals to be housed there.”

38. A COSP provides supervised accommodation for prisoners who are released to the community. The Nunyara COSP is located in the grounds of Long Bay Correctional Centre. Ms Hodgkinson continued:

“Community Corrections will continue to canvas appropriate and suitable post-release accommodation for [the defendant] should his referral not be accepted to the COSP however it is noted that this will be difficult given his history of aggressive behaviour, refusal to reside outside the inner Sydney city area and his refusal to participate in a residential rehabilitation facility. Contact with Housing NSW has indicated that [the defendant] has been classified as ineligible for all housing products, so he unable to access Temporary Accommodation (TA), a Bond Loan or any other Rent start Products. Contact with Glebe House and Rainbow Lodge indicates that they have both refused to accept a referral for [the defendant] due to his previous aggressive behaviour with [their] service and concerns for staff safety.”

39. The report detailed the risk management plan that the defendant would be subject to, if he is released back into the community subject to an ESO. The plan includes weekly face-to-face interviews at his residence, focused on developing a comprehensive case plan which would include strategies that are relevant to his identified risks. Interviews would focus on monitoring his attitudes, particularly towards his offending behaviour and challenging those attitudes where appropriate to do so. Motivational interviewing techniques would also be applied to encourage him to engage in pro-social community activities and to challenge any criminalised thoughts that he may have, and to encourage him to obtain and maintain a law-abiding lifestyle. There would be scheduled and unannounced home visits, field visits and surveillance at least once per month. Weekly contact would be maintained with third parties involved in his case management and contact would also be established with any person he may commence a relationship with or an employer, should he obtain any form of paid or unpaid employment. The defendant would be referred to the VOTP Program in the community in order to continue maintenance sessions. Contact would be maintained with his treating therapist to confirm his attendance at intervention sessions and to discuss his progress. The defendant would be subject to random and regular drug and alcohol testing to ensure that abstinence is maintained and would be obliged to engage with a treatment provider in order to maintain abstinence from drugs and alcohol, if required, in the community. The risk management plan would be reviewed every two months and updated to reflect any significant changes to the defendant’s circumstances.

40. Consequent to orders made by N Adams J in the preliminary judgment, reports have been prepared for the final hearing, pursuant to s 15(4) of the Act, by Dr Katie Seidler, a clinical and forensic psychologist, and Dr Andrew Ellis, psychiatrist. Both reports were written before the defendant completed the VOTP. In a marked change from earlier such commissioned reports, the defendant chose to co-operate with the forensic experts. These reports are now considered.

Forensic psychologist, Dr Katie Seidler

41. Dr Seidler’s first report on this application is dated 21 September 2020. It also pre-dated the defendant’s completion of the VOTP. The defendant cooperated with Dr Seidler’s assessment. She assessed the defendant by Audio-Visual Link (AVL) on 15 September 2020 for a period of two and a quarter hours.

42. Dr Seidler noted that during her interview, the defendant demonstrated a number of concerns related to possible neurocognitive problems. These included tangential responding, perseveration, difficulties regulating his thought and responding to limit-setting or structure. She stated:

“This may go some way to explaining for the Court [the defendant’s] non-compliance with supervision, in addition to assisting the Court in making recommendations in this case that [the defendant] can work with and which would reduce or assist him in managing his dynamic risks for offending.”

43. Dr Seidler reported that the defendant offered that he intended to source individual substance abuse therapy, if released to an ESO, as a means of assisting him to avoid relapsing into drug use and to cope with the harsh restrictions of an ESO. Having established some stability and routine, he said that he would then focus on sourcing employment and gaining his driver licence.

44. Dr Seidler assessed the defendant utilising the VRS, concluding that 39.5 per cent of the Canadian normative sample would have scored similarly to him, yielding a level of risk at the upper end of the medium range, which I note is significantly lower than the VRS assessment reported in the VOTP report. Dr Seidler added:

“… it is of concern that according to my rating on the instrument, [the defendant] is considered to be largely at the Pre-Contemplation stage of change despite extensive specialist intervention in recent years.”

45. Dr Seidler also applied the HCR-20 v3, which suggested that the defendant poses a high risk of future violence. Dr Seidler noted that this result accorded with previous assessments utilising the same instrument by Dr Collins and Dr Furst. She also assessed the defendant with the LS/CMI, which indicated a high risk of future violence. Dr Seidler assessed the defendant’s protective factors with the SAPROF and concluded that he had few protective benefits.

46. Dr Seidler concluded, as to the defendant’s risk of offending:

“Taking into account the aforementioned assessments of risk, it is my opinion that [the defendant] poses a Moderate to High risk of future violent offending, in addition to a high risk of future antisocial conduct generally. Further to this, he presents with few protective factors that are currently present and which may inoculate against risk with any significant effect.”

47. Dr Seidler agreed with earlier diagnoses of Antisocial Personality Disorder and Substance Abuse and Dependence. As to the likely circumstances of future violent offending, she stated:

“In general, it is my opinion that [the defendant’s] risk for violence will be largely actualised within particular circumstances. Specifically, those in which he feels targeted, threatened or somehow judged or mistreated. In this sense, [the defendant’s] violence will be likely reactive in nature, rather than planned and organised.”

48. Dr Seidler commented on whether the risk posed by the defendant of committing a further serious offence could be managed in the community under an ESO:

“The history in this case would suggest that the supervision conditions under an ESO, which are the most stringent available in this State, have not been sufficient to prevent [the defendant] from reoffending to date. Unfortunately, nothing that has occurred since [the defendant] was reincarcerated, including engaging in offence focussed treatment, is likely to alter this. Even when [the defendant] has completed the VOTP, it does not appear that he will have gained sufficiently to make his risk more easily managed in the community, especially as he is likely to continue to be non-compliant with supervision. Although perhaps contrary to the views of others in the past, I am of the view that [the defendant’s] non-compliance may, at least in part, be a function of neurocognitive limitations or deficits.”

49. Dr Seidler was of the view that a CDO could only offer the defendant the opportunity to continue to engage in the VOTP:

“… it will offer little, if anything, in relation to further preparation for release or skills building for [the defendant]. Therefore, it is suggested that a continued CDO is appropriate for however long it takes [the defendant] to complete the VOTP.”

50. As to appropriate conditions for release pursuant to an ESO, Dr Seidler cautioned against conditions being too rigid:

“The most effective strategies for [the defendant] will be around structuring his routine, associations, activities and movements. These conditions will, however, be more effective if there is some room for flexibility, given [the defendant’s] past problems with being breached over minor matters, in addition to which, these conditions imposed should reflect his positive life goals, which will, no doubt, increase his compliance.”

51. Dr Seidler also expressed reservations about the need for disclosure to be made to others about the defendant’s criminal history, noting that there is no evidence that such disclosures are relevant to risk management in any tangible way and that they can be traumatic, stressful and distressing for lay people, “as they do not have the skills or training to understand the import of such information nor cope with such disclosures”.

52. Dr Seidler prepared a supplementary report dated 28 October 2020, in light of the defendant’s completion of the VOTP. She reviewed it and concluded:

“On the basis of my reading of [the defendant’s] post-treatment discharge report from the VOTP, there is nothing I would change with respect to my formulation, risk assessment or recommendations for [the defendant]. [If] anything, the aforementioned report confirms that [the defendant] has made little gain from specialist treatment, that his risk remains high and that he has limited capacity to manage his risk safely in the community without ongoing external control. This affirms that [the defendant] is unlikely to profit from offence-focussed or mental health interventions. It also adds to my concern about [the defendant’s] thinking processes and neurocognitive functioning.”

Forensic psychiatrist, Dr Andrew Ellis

53. Dr Ellis’ first report on this application is dated 30 September 2020. He diagnosed the defendant as having an antisocial and avoidant personality disorder and a substance use disorder, particularly for opioids and stimulants. As to the defendant’s likelihood of violent reoffending, Dr Ellis stated:

“… [the defendant] would fall into a group of persons with a risk for violent offending … that is statistically high in frequency with potential for serious consequence in his specific case, and more than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.”

54. Dr Ellis elaborated on such specific treatment, stating:

“Working synergistically with medical treatment, psychosocial treatment for addictions is also recommended. This can take the form of individual psychotherapy (usually based on a cognitive behavioural model), or group therapy … Any approach will require modification to account for his personality function …

He would benefit from psychotherapy targeted at personality function (mentalisation based therapy or dialectal behaviour therapy) … This therapy should be undertaken after cognitive evaluation to gauge how it is pitched. This type of therapy would initially be of greater benefit than general violence focussed therapy, as assisting him change [in] relating to others will allow greater meaningful participation in violence focussed programs. This may assist in relating to supervising authorities.”

55. Dr Ellis was of the opinion that programs that are run by trained mental health professionals and which adhere to cognitive behavioural principles are more likely to show positive changes than VOTP-type programs. He concluded that further detention in custody to complete a program is not likely to alter the defendant’s risk profile.

56. Dr Ellis elaborated on why, in his opinion, a community-based program for the defendant was likely to yield better outcomes that continued custody-based programs:

“In this case with the significant monitoring that can be in place with an extended supervision order, including restrictions on accommodation such as residing in a COSP and restrictions on associating with antisocial groups the theoretical benefits of further incarceration in order to gain a theoretical benefit of psychological treatment would be outweighed by the potential greater gains in risk reduction in a structured community setting. Monitoring has detected early engagement in at risk behaviour (such as substance use) during his previous periods of release.

There is some evidence at this review from his own expression and from some entries in his OIMS notes that his attitudes to supervision and cooperation with this have softened from previous periods of release. This indicates that at least on initial release cooperation with supervision could be achieved.”

57. Dr Ellis was of the view that a neurological physical examination and neuropsychological examination were appropriate. He said:

“It would be of benefit first to conduct a neurological physical examination, and a magnetic resonance imaging brain scan to exclude any physical or chemical trauma to the brain. Neuropsychological measures would be useful to guide a therapist with his cognitive strengths and weaknesses, and would be best conducted as part of his therapeutic framework, rather than in the midst of an adversarial hearing as they can be influenced by stress.”

58. Dr Ellis wrote a supplementary report dated 30 October 2020, in response to the VOTP report. He concluded:

“This new information does not substantially alter any opinion in my report. [The defendant’s] ability to complete a psychological program indicates an ability to work with treating and supervising staff in the future. This may allay some concerns regarding his ability to participate in supervision and treatment if released on an ESO in the community. As noted in my previous report the effect of prison-based group cognitive behavioural interventions on violent recidivism is limited. The VOTP has been shown to reduce general offending but have no significant effect on violent offending. Therefore there is no change to my assessment of his risk of committing a future serious violent offence by the fact he has completed the program. I agree with the suggestions for future intervention suggested by the program staff.”

59. Other matters required to be considered pursuant to s 17(4) are as follows:

“17   Determination of application for continuing detention order

…

(4)   In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

…

(e2)   whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order,

…

(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 …”

60. In relation to s 17(4)(e2), the plaintiff relied upon the reports already considered, in particular, the defendant’s record of poor past compliance with the conditions of an ESO. As to s 17(4)(h), the defendant’s criminal history was canvassed earlier in this judgment. In relation to s 17(4)(h1), I have noted some of the observations of Hidden J, who was the sentencing judge: R v Lynn [2008] NSWSC 1122.

The parties’ submissions

61. The plaintiff submitted that the VOTP Report found the defendant’s participation in the VOTP to be “significantly lacking”. When the report is considered together with the supplementary reports of Drs Seidler and Ellis, there was no basis beyond what was available before the VOTP report was written for the Court to conclude that the defendant has addressed his risk factors so as to justify release into the community. The plaintiff submitted that in Dr Seidler’s supplementary report, she mistakenly refers to the plaintiff’s application being for an ESO.

62. The plaintiff acknowledged Dr Ellis preference for an ESO but submitted that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept in detention or under supervision, and that the appropriate order is for a CDO of 3 years’ duration.

63. The defendant opposes an order for a CDO but would accede to an order for an ESO, if it was of relatively brief duration of “no more than 3 years duration”, so as to provide an incentive to comply with the inevitably tough conditions that would be attached to it.

Consideration

64. In considering the plaintiff’s application, I am conscious of ss 3, 5D and 17(2) of the Act.

65. I am also conscious that, in spite of the amendments to the Act in 2017, which removed an express requirement that, before the Court could make a CDO, it had to be satisfied that adequate supervision would not be provided by an ESO, a consideration of whether an offender could be safely placed in the community subject to an ESO remains a general consideration, pursuant to s 17(4)(e1) and (e2).

66. I accept the evidence to the effect that the progress that has been made by the defendant whilst in custody consequent to the previous CDO is limited. As Dr Seidler opined, the defendant is still at the “pre-contemplation stage of change”: see [44] above. However, when that modest progress is considered in the context of the defendant’s history, it is encouraging. There are significant improvements in the degree of the defendant’s co-operation and participation in programs in recent months compared to the lead-up to the 2019 application.

67. The defendant co-operated with Drs Ellis and Seidler in the preparation of their reports and interacted well with the VOTP staff. I note Dr Ellis’ observation that, in light of the defendant’s improved interactions with Corrective Services staff, if he is released back into the community subject to an ESO, more positive interactions with supervising staff could be expected, at least in the important initial period.

68. The defendant participated in, and completed, the VOTP which, for this particular offender, I regard as a significant achievement. Moreover, for the duration of the program, he did not return any negative urine test samples or incur disciplinary matters.

69. From the perspective of the defendant’s level of risk of committing a further serious offence, there is clearly a long way to go. However, I accept the opinion of Dr Ellis, that at this stage of the defendant’s treatment, further progress is best achieved by the defendant returning to the community, subject to appropriate conditions to protect the community, and with the benefit of the type of therapy and assessments that have been recommended by both him and Dr Seidler.

Conclusion

70. For these reasons, pursuant to s 5C(d) of the Act, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept in detention. Pursuant to s 5B(d) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Accordingly, I will make an order for an ESO.

71. The appropriate duration of the ESO is 18 months. This provides an incentive for the defendant to quickly engage in a positive fashion with the assessments and therapy that will be provided to him. Equally, it allows the plaintiff a reasonable period of time in which to gauge the defendant’s progress, so as to make a judgement as to whether a further ESO should be sought after that time.

Conditions of the ESO

72. The parties have sensibly negotiated proposed conditions to an ESO, in the event that I determine to make such an order. I approve the changes that they have agreed, and have made determinations to those which remained the subject of dispute.

Recommendations

73. In my opinion, it is in the interests of the safety of the community that the defendant receives the precise types of treatment and assessment when he is released back into the community recommended by Drs Ellis and Seidler. The terms of the conditions under Part M of the conditions (“Medical intervention and treatment”) are sufficiently wide for the defendant to receive cognitive behavioural therapy as recommended by Dr Ellis, and a physical and neuropsychological assessment of the types recommended by both Drs Ellis and Seidler. In my view, it is critical that these services be provided, and equally, that the defendant be obligated to comply with them, on pain of being returned to custody.

74. The defendant’s case is one where there is a close coincidence of needs between the safety of the community and the rehabilitation of the defendant. The expert evidence that has been tendered on the application is to the effect that, if the defendant is to make progress with the reduction of his level of risk of committing a serious offence, it will be by him receiving appropriate one-on-one treatment in the community, subject to an ESO. It is appropriate, indeed necessary, for the defendant’s DSOs to read [42], [53], [54], [55] and [57] of this judgment and, ideally, the full reports of Drs Ellis and Seidler, so as to appreciate why their proposals for assessment and treatment are central to the reduction of the risk of the defendant committing a further serious offence.

Orders

75. I make orders as follows:

1. The defendant is subject to an Extended Supervision Order for a period of 18 months, subject to the attached conditions.

2. 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.

3. The defendant is to provide written submissions regarding costs by email to chambers by 5:00pm Thursday 19 November 2020;

4. The plaintiff is to provide written submissions in reply by email to chambers by 5:00pm Thursday 26 November 2020.

**********

Schedule of Conditions of Supervision LYNN (95355, pdf)

Decision last updated: 12 November 2020