State of New South Wales v Lynn (Final)

[2019] NSWSC 580

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Lynn (Final) [2019] NSWSC 580
Hearing dates:	15 and 17 April 2019
Decision date:	17 May 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	(1) Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be the subject of a high risk offender continuing detention order for a period of fifteen months.
Catchwords:	HIGH RISK OFFENDERS – application for a continuing detention order – final hearing – serious violent offender – whether Court satisfied to high degree of probability defendant poses unacceptable risk of committing another serious offence if not kept in detention – history of non-compliance with supervision – significant history of violence – antisocial personality disorder – expert evidence of high risk of re-offending – continuing detention order imposed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Lynn v State of New South Wales [2016] NSWCA 57 R v Lynn [2008] NSWSC 1122 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 State of NSW v Donovan [2015] NSWCA 280
Texts Cited:	“The effect of the Violent Offender Treatment Program (VOTP) on offender outcomes”, Crime and Justice Bulletin BOCSAR, No 216, August 2018
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Scott David Lynn (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) M Avenell (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/00160408

Judgment

1. HIS HONOUR: The State of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 22 May 2018, amended on 8 June 2018, against the defendant, Scott David Lynn, seeking final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), being a two-year continuing detention order (“CDO”). The defendant is presently serving a total sentence of eighteen months following convictions in the Local Court to relatively minor charges. That sentence does not expire until 3 September 2019. The non-parole period of 12 months expired on 3 March 2019, but the State Parole Authority has revoked his release to statutory parole. I understand that a review hearing of that decision has been adjourned, pending the outcome of this application. For this reason, this judgment, of necessity, does not canvass all aspects of the evidence in as much detail as more time would allow.

2. Unusually for an application for a CDO, the plaintiff is not seeking an alternative order for an extended supervision order (“ESO”). This is because the defendant is already subject to an ESO that will not expire until August 2020.

Background to the application

3. The defendant is aged 42. He has an extensive criminal history dating back to 1991 for an offence of break, enter and steal, when he was aged 14. His first offence involving violence was the following year, of assault police. The defendant’s first drug offence was in 1994 when aged 18, of possess heroin. His first prison sentence was the same year, for a break, enter and steal. Thereafter his record was replete with multiple property, drug and violence offences, many involving him threatening others with a knife or similar implement that he was carrying on him, in the course of assaults.

4. An example of an early violent attack perpetrated by the defendant is one that was dealt with in the Children’s Court when he was aged 17. The police facts are as follows:

“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.

…

At 1.30am on Saturday 14 August, Police attended the Tamworth Hospital and spoke to the victim, who was in a dazed state. He stated that he couldn't remember anything other than he was having a shot during a game of pool. The next thing he remembered was waking up at the hospital.”

5. 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.

6. The defendant was released to parole on 17 February 2013 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. The defendant’s parole was revoked and he served the balance of his sentence.

7. Subsequently an interim supervision order (“ISO”) was sought and obtained: State of New South Wales v Lynn [2013] NSWSC 1147. When released on 17 August 2013, the defendant resided in a Community Offenders Support Program residence (“COSP”). He was arrested on 12 September 2013 for breaching the conditions of the ISO.

8. 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 to date. His Honour noted, 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. I have referred to his conviction in September 2005 for being in possession of a gaol made knife. I should add that in October 2000, during a search of his cell, another metal object described as a ‘shiv’ was found.”

9. In 2015, the defendant sought leave to appeal the order out of time. The Court of Appeal granted leave and dismissed the appeal: Lynn v State of New South Wales [2016] NSWCA 57.

10. The defendant’s history of breaches of the ISO and ESO is succinctly summarised in the plaintiff’s written submissions. The summary is not the subject of challenge.

“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.”

11. 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 Mr Lynn 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 Mr Lynn 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.”

12. 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’s background, as gleaned from forensic and court reports, is to the following effect. He is the younger of two siblings, the other being a sister, two years older than him. He was born in Tamworth. His parents separated when he was aged eight and he and his mother moved to Sydney. It appears that there was some verbal and physical violence in the context of the break-up. When aged 13, he started living with his father. His lifestyle was itinerant; he claimed to have attended three different primary schools and five different High schools, leaving in Year 9, apparently expelled for fighting. He obtained his Year 10 Certificate through TAFE. His father died of natural causes in 1997.

14. When aged 14, he formed a relationship with a girl who was a year older, and moved out with her about two years later. The defendant and his partner had two children, born in 1992 and in 1997. He lived with her until her suicide in 1999. Thereafter, their children were cared for by their maternal grandmother.

15. He 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 teen years. There is evidence from drug tests that he has used amphetamines in recent years, as well.

The defendant’s mental state

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 Mr Lynn 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 Mr Lynn 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:

“Mr Lynn 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.”

The relevant legislative provisions

21. There are certain preliminary statutory requirements for an application for a CDO. Section 5C states:

“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.”

22. A “serious offence” is defined in s 4 to include “a serious violence offence”, which is defined in s 5A(1)(a) to include a serious indictable offence that is constituted by a person engaging in conduct that causes the death of another person. A “serious indictable offence” is defined in s 5A(3) to have the meaning in the Crimes Act 1900 (NSW) at the relevant time, which, pursuant to s 4, was “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”, thus including the offence of manslaughter. Accordingly, s 5C(a) is made out.

23. In relation to s 5C(b) and (c), a supervised offender is defined at s 13B to include an offender who, at the time of the application, was either in lawful custody or under supervision under an ESO and whose obligations under the ESO have been suspended. At the time the application was made, which was the filing of the original summons on 22 May 2018, the defendant was bail refused on the charges laid on 16 April 2017 and 26 January 2018. Section 10(2) of the Act provides that an offender’s obligations under an ESO are suspended while he or she is in lawful custody. Accordingly, he was a supervised offender as defined in s 13B(4)(b), namely, he was an offender “whose obligations under an extended supervision order … have been suspended”. Accordingly, s 5C(b) and subs (c) are satisfied.

24. Section 14 provides that an application for a CDO must be supported by documentation that addresses each of the matters set out in s 17(4) of the Act. This includes a report prepared by Corrective Services NSW (commonly known as a Risk Management Report) that considers “the extent to which the offender can reasonably and practically be managed in the community”: s 17(4)(d1). The application must also include a forensic report assessing the likelihood of the offender committing a “further serious offence” (known as a Risk Assessment Report): s 14(3)(b).

25. This leaves the key provision of s 5C(d) for consideration, namely, whether the 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. Section 5D provides that the 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.

22. The definition of “serious” offence” in s 4 means a serious sex offence or a serious violence offence. The plaintiff does not suggest that there is an unacceptable risk of the defendant committing a serious sex offence, not surprisingly, given that none of his 120 offences committed up to August 2013 (when the defendant was first placed under supervision pursuant to an ISO) was for a sex offence. Accordingly, the issue is whether there is an unacceptable risk of him committing a serious violence offence, which is defined at s 5A of the Act:

“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.”

27. As noted above, the definition of a “serious indictable offence” in the Crimes Act is “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more” pursuant to s 4.

28. At first blush, s 5A of the Act appears to set a high bar for the plaintiff in order to establish an unacceptable risk of a “serious violence offence”, but as drafted, it encompasses a range of criminal behaviour that would or could result in death or grievous bodily harm. This extends from an intent to kill at one extreme to for example, an intent to punch at the other, where only a minor injury is anticipated as a possible consequence. As Button J pointed out in State of New South Wales v Lynn [2013] NSWSC 1147, at [16]:

“At its lowest, on analysis a serious violence offence could be an offence that features an act causing grievous bodily harm done with foresight of the possibility that actual bodily harm could occur. An example that springs to mind is punching someone to the face whilst realising that it is possible that the victim will receive a split lip and the victim, as a result of the punch, falling back and hits his or her head on concrete and suffering a very large laceration to his or her head. Clearly, the concept of a serious violence offence is not confined to offences of homicide, or even the intentional infliction of serious violence.”

29. The plaintiff concedes that the fact that the manslaughter offence is the only “serious violence offence”, as defined, on the defendant’s extensive criminal record is a relevant matter. See, for example, State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754, where Johnson J stated at [107]:

“The fact that only one of his offences falls within the demanding criteria for a ‘serious violence offence’ in s.5A(1) is a relevant but not determinative factor on the application.”

30. The Act was amended in 2017. As to the degree and nature of risk that may qualify under s 5C(d), I note that in Lynn v State of New South Wales at [142], Basten JA approved a passage from State of New South Wales v Lynn [2015] NSWSC 665 in which Hidden J observed, at [68], referring to the pre-amendment counterparts to the current provisions at s 5C(d) and s 5D:

“In my view, the relationship between the two subsections is explained by the authorities to which Davies J referred in Richardson [State of New South Wales v Richardson (No 2) (2010) 210 A Crim R 220; [2011] NSWSC 276], particularly in the passage from the judgment of RA Hulme J in Thomas [State of New South Wales v Thomas [2011] NSWSC 118] at [15]-[20] set out above. Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence. As RA Hulme J put it, that risk may be less than likely but still be unacceptable. What subs (2) requires is that I be satisfied to a high degree of probability that there is a risk of that kind.”

31. Section 17(2) provides that: “In determining whether or not to make an CDO, the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “to ensure the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

32. The amendments to the Act 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, which was interpreted to mean the particular ESO that was proposed as an alternative to the CDO: State of NSW v Donovan [2015] NSWCA 280 at [24]. Nevertheless, a consideration of whether an offender could be safely placed in the community under the auspices of an ESO generically remains a consideration. An application of s 17(2), that is, the safety of the community being the paramount consideration of the court, is an exercise that requires the court to contemplate the alternative to the imposition of a CDO, which inevitably is release back into the community. The terms of s 5C(d) also require the court to advert to the alternative of release into the community which, as a matter of common sense, is with the benefit of available constraints and resources. As well, s 17(4) was amended to include the following matters that the court must take into account in determining whether to make a CDO or ESO:

“(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,

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

33. In this case, where there is an existing ESO, the consideration by the court of these matters is in the context of that default order continuing to apply as the logical alternative to what is sought in the summons before the court.

34. 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 plaintiff’s case

35. The plaintiff’s written submissions advanced the essence of their case in these terms:

“2.21.   In the present proceedings, the plaintiff submits that the nature of the defendant's offending, notably (i) the persistent possession and threatened and actual use of weapons capable of inflicting serious harm, particularly knives, (ii) the unpredictable, sometimes explosive and generally aggressive nature of his confrontations (apparently driven by his personality issues and perception of hostility from others), and (iii) the abuse of substances at times in conjunction with the offending, bears on the risk of committing a further serious offence.

2.22.   Further, the fact that the defendant has violently offended and not addressed his underlying issues, despite the supervision, monitoring and treatment under an ESO, similarly bears on an assessment of risk.”

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 Mr Lynn strongly resisted this offer. It is unlikely that Mr Lynn 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 Mr Lynn, 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 Mr Lynn’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, Mr Lynn 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 Mr Lynn 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 Mr Lynn’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 Mr. Lynn’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, Mr. Lynn 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).

56. A Risk Management Report, dated 11 April 2018, was prepared by Amanda Carden, who is a member of the Metropolitan ESO team. She noted that the first contact by Community Corrections (“CSNSW”) with the defendant was in 1995 when he received a 14 hour Community Service Order. Ms Carden summarised their involvement with the defendant since then as follows:

“Mr Lynn’s response to supervision by Corrective Services New South Wales (CSNSW) can be described as marred by re-offence and non-compliance. It is noted that the offender ‘committed the majority of his violent offences whilst subject to various forms of supervision (bail, bond, parole),’ (Sheehan 2013, p. 22). Historically, case management strategies were focused upon assisting the offender in sourcing stable and appropriate accommodation and engaging in intervention to assist him in addressing his substance abuse and aggression issues. It is noted that Mr Lynn has an established history of claiming that he does not have substance abuse issues (Poole 2008, p. 2) and he has purported on numerous occasions that he is not a violent person (Roberts 2013, p. 11).”

57. Ms Carden’s report reviews forensic reports on the defendant’s efforts to adjust to a community-based lifestyle. In spite of offers of assisted housing in the suburbs, the defendant would opt instead for inner city accommodation which CSNSW regarded as unsuitable, in which his “days were occupied with aimless wanderings around the CBD of Sydney, attending free food outlets”. In spite of attending SMART recovery meetings (alcohol and drug intervention groups) since July 2017, the defendant has tested positive for methylamphetamine since that time.

57. The defendant’s interactions with CSNSW staff often involved him engaging in abusive, intimidating and threatening behaviour towards supervising officers, as well as outbursts of physically destructive acts, such as throwing a chair or smashing a cup of coffee against a wall. Consequently, steps had been taken to avoid one on one contact, such as contact by telephone or when attended by others, for security.

58. Electronic monitoring had been tried. The expectation is that the recipient progresses to a point where it is no longer required, but the defendant did not progress beyond the first stage, due to continued breaches and repeated failures by him to maintain the equipment, as required.

59. There are limited options for accommodation for the defendant when he is released. He is banned from numerous locations because of his past aggressive, violent and destructive behaviour. He refuses to be accommodated in COSP centres, partly because of an abhorrence of sex offenders, with whom he would have difficulty in co-habitation.

60. Ms Carden advanced a “Risk Management Plan”, in the event that a CDO is not imposed. It involves regular contact with CSNSW staff if it is safe for the staff involved, attempts to motivate the defendant to engage in pro-social activities, such as seeking employment and abstaining from drugs and alcohol, partaking in counselling and avoiding boredom by planning movement schedules.

61. There would be both scheduled and unannounced home visits, during which searches would be conducted for illicit substances, weapons or other concerning material. There would also be field visits whilst the defendant is in public places.

62. Ms Carden outlined the limitations of each aspect of the strategy which were considerable, given the issues she had earlier described in the defendant’s past performance with CSNSW.

The defendant’s case

64. The defendant has indicated to CSNSW staff as recently as December 2018 that his preference is that he be released back into the community. He wishes to live in a particular cheap hotel ($180 per week) in Chinatown, in the Sydney CBD. In the same interaction, the defendant said that he did not want to participate in the VOTP “for a crime he didn’t commit”; referring to the manslaughter on his record and his explanation that it was committed in self-defence.

65. The defendant submitted that a key consideration is that the manslaughter is the only serious violence offence that he has committed, which was 13 years ago, and his criminal offending since then has been significantly less serious.

66. A closer examination of the defendant’s period in the community following his release on parole in February 2013, reveals significant progress away from criminal behaviour generally and an absence of serious offences. His lapses are explained in part by the poor quality of service sometimes provided to him by the relevant CSNSW staff. While his interactions with them are sometimes concerning, there have been no acts of actual violence, in terms of physical contact. On the occasions that he has expressed exasperation by a display of anger, for example by throwing something, it has not been at staff, but rather in their presence. This is evidence of real progress on the part of the defendant in anger management.

67. To the extent that the objective of a CDO would be to require the defendant to actively engage in programs addressing his violent behaviour, the defendant submitted that publicly-available research does not demonstrate that these are effective. Counsel for the defendant, Ms Avenell, relied on an assessment of the VOTP program published in August 2018 by the NSW Bureau of Crime, Statistics and Research (“BOCSAR”), which is the first assessment of post-release offending behaviour of prisoners who have participated in the VOTP whilst in custody. It concluded that:

“We find no significant associations between starting or completing [the] VOTP and the probability of violent re-offending at 24 months free time post release.”

68. The defendant contended that his ESO breaches are, by and large, either not in themselves criminal or at least not seriously so. An example is the matters for which he is presently incarcerated, being the AOABH and affray.

The hearing

69. There was evidence from CSNSW personnel. Amanda Carden was the defendant’s Departmental Supervising Officer (DSO) whilst he was in custody, following his breaches of ESO conditions. She was cross-examined as to the quality of support she gave the Defendant in that period. Annette Caffery is the manager of the CSNSW ESO team. She was cross-examined on the same issue. The effect of their evidence is that, when the defendant was returned to custody in January 2018, there was in my opinion insufficient contact with his DSO to enable him to make the best use of his time back in custody and to prepare him for when he next comes back into the community.

70. The defendant also challenged some of the content and conclusions in the reports of Ms Carden and Ms Cieplucha, and the content of an affidavit by Ms Caffery concerning some staff interactions and accommodation options for the defendant.

71. As well, there was evidence from three forensic witnesses given together and in each other’s presence: Dr Furst, Dr Collins and Ms Cieplucha. One line of cross-examination of these witnesses concerned their reliance on CSNSW case-work reports generated whilst the defendant was in the community, subject to an ESO. It was suggested to each of them that in formulating their opinions about future dangerousness, and the ability of the defendant to live in the community in a law-abiding way, they had paid insufficient regard to the many neutral reports, and taken the negative reports at face value. Accordingly, their opinions should be revised as to whether the defendant’s degree of risk of committing a serious offence of violence.

72. I consider that, to the extent that cross-examination exposed a degree of disregard for the many neutral and some positive case notes, there was an undue degree of pessimism in Dr Furst’s opinion of the defendant’s capacity for change. However, I am of the opinion that the ultimate conclusions of each of these three witnesses was not significantly affected by the cross-examination.

Consideration

73. On one view, the defendant’s criminal record, although lengthy, does not comprise offences of serious violence, other than the conviction for manslaughter, thirteen years ago.

74. However, a consideration of his record and ESO performance in the light of the various forensic examinations of the defendant is concerning. In particular, concern arises from the combination of the frequent occurrence of, if not a predisposition to, aggressive responses to stressful situations; a history of carrying items that can be deployed for stabbing or cutting and resorting to such devices when stressed in order to threaten; and on-going occasional lapses into the use of violence-related drugs such as methylamphetamine, in spite of attendance in drug treatment programs.

75. When coupled with the defendant’s long-standing absence of insight into his issues of violence and drug abuse, his past failures in properly participating in programs that address these issues and the past absence of good working relationships with CSNSW caseworkers, the range of options to improve the defendant’s prognosis for a crime-free life in the community narrow considerably.

76. The submission that the defendant poses a lower level of risk because the index offence was thirteen years ago and that most other offences which involved threatening others with a knife are even older, loses traction when it is not accompanied by evidence that he has gained insight into his behaviour and also by virtue of the fact that for most of the intervening period he has been in custody. In that sense, the passage of time is less relevant.

77. There remains potential for a relatively minor episode of violence by the defendant to quickly escalate. The incident that gave rise to his recent convictions for AOABH and affray is a good example. On one level, it was a minor fracas between neighbours with, apparently, no lasting injuries. In the context of the forensic profile of the defendant, however, felling the victim by hitting him over the head with a pole from behind and then punching him as he lay on the ground has disturbing echoes of his behaviour in the assault at the hotel 25 years ago, when he was aged 17.

78. The remarks by the magistrate in relation to that incident illustrate how the defendant’s aggressive or violent behaviour, which included throwing a pot over a balcony, before it degenerated further into violence against a person, instilled fear in bystanders to a degree that a woman some distance away feared for her safety and two men picked up objects at hand to defend themselves. In other words, simply acting with aggression can prompt others to react. It is not fanciful to contemplate a situation where such behaviour could provoke an incident with a less benign outcome.

79. For these reasons, I am satisfied that there are no feasible community-based options for the defendant at this stage that engender reasonable confidence that his potential for violent behaviour can be suitably curtailed in a community setting.

80. In relation to a CDO, although Drs Parker and Furst are pessimistic as to whether the defendant would actively participate in a VOTP program and, if he did, that it would modify his behaviour, it seems to me that it is a worthy goal. In relation to the BOCSAR report’s conclusion that VOTP does not demonstrably lower a probability for violent re-offending, I also note that there was some evidence, albeit qualified, of significant decreases in new offences generally by violent offenders, as follows:

“The results suggest that VOTP is associated with a significant decrease in the likelihood that a violent offender will commit a new offence or return to custody within 24 months of release from prison. OLS models estimate that an offender who commences VOTP is on average, between 7 and 9 percentage points less likely to re-offend or return to custody within 24 months free time after release. We find similar results when comparing those who completed VOTP with those who did not complete the program. VOTP completion is associated with reductions in the risk of general re-offending and general re-offending or returning to custody. However, we cannot be certain that these effects are causal as no significant estimates were obtained using the more robust 2SLS which more adequately deals with problems of endogeneity.”

81. This suggests that there is value in the VOTP, even if it is not to the extent that it is made out to be. Having regard to the forensic material, the critical issue for the defendant’s progress is to change his thinking. It appears that the defendant actively participating in the VOTP program is the best available option to achieve that.

82. Ms Cieplucha gave evidence that the length of the VOTP program is 8 to 10 months, but that because there is a long waiting list for offenders wanting to participate and assessments to be done, it can be many months before an offender gains entry to VOTP. However, she also said that if a relatively short CDO is made for the purpose of an offender participating in VOTP, the application process can be fast-tracked to fit into a 12 month CDO timeframe.

83. The term of the CDO sought by the applicant is a period of two years. It seems to me that the defendant will have an incentive to actively participate in a VOTP if there is a prospect of him being accepted into the program at the earliest opportunity and a likelihood of release back into the community when it is completed, provided he participates in a fully co-operative and active fashion. However, there are conflicting opinions as to how long that minimum period should be. Dr Parker thought that 14 months was the minimum time for that to occur, whereas Dr Furst thought at least 2 years and Dr Collins thought 3 years.

84. A further complication is that, as noted at the outset of this judgment, the defendant’s current sentence expires on 3 September 2019. The non-parole period of 12 months expired on 3 March 2019, and the State Parole Authority has revoked his release to statutory parole. I understand that a review hearing of that decision has been adjourned, pending the outcome of this application.

85. I am of the opinion that there should be a CDO for a period of 15 months. Although I do not intend to encroach onto the jurisdiction of the State Parole Authority, an outcome that delivers a further period of custody from today of about 15 months would be, in my opinion, appropriate for the stated objective of enabling the defendant an opportunity to partake in and finish the VOTP program.

86. The material before me also establishes a need for further participation by the defendant in drug programs. A CDO will enable the defendant to participate in further such programs, as well.

87. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention.

Orders

88. I make the following order:

(1) Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be the subject of a high risk offender continuing detention order for a period of fifteen months.

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Decision last updated: 17 May 2019