State of New South Wales v Mackey (No 2)

[2015] NSWSC 1153

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Mackey (No 2) [2015] NSWSC 1153
Hearing dates:	31 July 2015
Date of orders:	17 August 2015
Decision date:	17 August 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	1. Pursuant to s 5F and s 17(1)(a) of the Crimes (High Risk Offenders) Act that the defendant be subject to an extended supervision order for a period of 3 years from the date of the order and pursuant to s 11 of the Act direct that the defendant comply with the conditions set out in Schedule A. 2.   The reports of Dr Ellis and Dr Roberts be provided to Corrective Services New South Wales, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) or health care practitioner(s).
Catchwords:	CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – whether final supervision order should be made – unacceptable risk of committing a serious violence offence established – disputed conditions – extended supervision order for 3 years – conditions imposed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Attorney General of New South Wales v McGuire [2015] NSWSC 152 R v Fernando (1992) 76 A Crim R 58 SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2014) 86 NSWLR 367 State of New South Wales v Ali [2010] NSWSC 1045 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v Mackey [2015] NSWSC 514 State of New South Wales v Richardson [No 2] [2011] NSWSC 276; (2011) 210 A Crim R 220 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 State of New South Wales v Thomas (Final) [2011] NSWSC 308
Category:	Principal judgment
Parties:	The State of New South Wales (Plaintiff) Ryan Mackey (Defendant)
Representation:	Counsel: Ms G Mahony (Plaintiff) Mr M Johnston (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2015/83652
Publication restriction:	Nil

Judgment

1. On 5 May 2015 after a preliminary hearing under s 7(3) of the Crimes (High Risk Offenders) Act 2006 (NSW), Button J made a contested interim supervision order under s 10B of the Act and other orders, including appointing two psychiatrists to examine Mr Mackey (see State of New South Wales v Mackey [2015] NSWSC 514). Mr Mackey has been examined by Dr Roberts and Dr Ellis and the State now seeks a final 3 year supervision order under s 5E of the Crimes (High Risk Offenders) Act. Mr Mackey opposes a final order being made. There are also issues between the parties as to the conditions of any such order, if it is made.

2. Hidden and Beech-Jones JJ extended the operation of the interim supervision order, before Mr Mackey was arrested on 13 June 2015 on a charge of aggravated break and enter with intent to steal under s 113 Crimes Act 1900 (NSW), which he is alleged to have committed in 2014, after his release on parole in relation to the index offence. On his arrest the interim supervision order was suspended (see s 10(1A)(b) of the Act).

3. Mr Mackey now remains in custody, bail refused. He has not yet entered a plea to the break and enter offence, which is next due in the Local Court in September, but does not deny the acts which have become the subject of the charge.

Should a final Supervision order be made?

4. In resolving the issues lying between the parties, the objects of the Act specified in s 3 need to be borne in mind. They are:

“(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.”

5. A final supervision order can only be made under the Crimes (High Risk Offenders) Act in the case of a violent offender, if the Court “is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision” (s 5E(2)).

6. It was common ground that that the State’s application was made within time, with the required supporting documentation (see s 6). It was also common ground that at the time the application was made, Mr Mackey was a “violent offender”, as defined in s 4 of the Act.

7. The index offence for which Mr Mackey was then in custody, was a serious indictable offence, malicious wounding with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act, which is a “serious violence offence” as defined in s 5A of the Crimes (High Risk Offenders) Act, carrying a maximum penalty of 25 years imprisonment. Button J described this offence at [9] of his judgment (see State of New South Wales v Mackey [2015] NSWSC 514):

“… the defendant was drinking in a hotel in the inner west of Sydney that was seemingly open around the clock or close to it. By 5 AM, he had been drinking for six hours or so. A dispute developed between the defendant and another drinker (the victim) about something as trivial as some beer that was accidentally spilt. An argument developed, the defendant came close to the victim, and he pushed the defendant to the chest. The defendant responded by driving a beer glass that he was holding into the face of the victim. The glass shattered in the vicinity of one of his eyes. The result was that the victim suffered severe lacerations that required 40 stitches to his face. He also suffered permanent and prominent scarring.”

8. Button J concluded that the State had established that the statutory threshold under s 5E for the making of an interim supervision order had been met, for reasons given at [34] - [44]. It was common ground that, even so, Mr Mackey was entitled to put that conclusion in issue again, on the application for final orders, notwithstanding his Honour’s reasons.

9. It was also common ground that while only one of Mr Mackey’s offences, the index offence, fell within the statutory definition of a “serious violence offence”, that was sufficient to engage the provisions of the Crimes (High Risk Offenders) Act (see State of New South Wales v Richardson [No 2] [2011] NSWSC 276).

The parties’ cases

10. The State’s case rested on the affidavit evidence of Ms Murray, a Crown solicitor, Ms Nowrot, Mr Mackey’s Departmental Supervision Officer (“DSO”), Mr Yeomans, the Department of Justice, Corrective Service (NSW) Senior Electric Monitoring Officer of the External and Electronic Monitoring Group, as well as the reports of Dr Ellis and Dr Roberts, who had both examined Mr Mackey in 2015, before his return to custody. None of them were required for cross-examination. Mr Mackey himself neither gave nor called any evidence.

11. Mr Mackey submitted that s 5E of the Crimes (High Risk Offenders) Act required consideration to be given to whether he posed “an unacceptable risk of committing a serious violence offence”. He opposed the final order, submitting that the State had not established an evidentiary basis for the conclusion that he is such an offender, despite the evidence as to his history and what psychiatric examination by Dr Ellis and Dr Roberts and other risk assessment reports in evidence suggested.

12. His other offences, including offences of violence such as manslaughter, assault and assault occasioning actual bodily harm, which did not fall within the definition of “serious violence offence”, were submitted not to be relevant to the assessment which the Court had to undertake. The fact that Mr Mackey had been charged with a break and enter offence while on parole for the index offence, was also submitted to be not of significance in determining whether the statutory threshold had been met, it not being a serious violence offence and not having involved violence.

13. Mr Mackey argued that accordingly, the State’s application had to be dismissed in accordance with s 9(1)(b) of the Act.

14. Mr Mackey acknowledged that his case had not been accepted by Button J. He also accepted that he, like other offenders, posed a theoretical risk of further serious violent offending, but argued that the statutory “threshold of required satisfaction” under s 5E, could not be met by the theoretical risk which the evidence established that he posed.

15. On Mr Mackey’s approach, the fact that he had only ever committed one serious violence offence was a powerful reason for concluding that the statutory threshold had not been met. He also pressed the same submissions which he had advanced before Button J, which his Honour recorded at [27] - [32] of his judgment:

“27   First, it may be accepted that the defendant has a personal problem that is criminogenic. But it is a long-standing problem with prohibited drugs and alcohol. It is not a problem with violence. And if I found to the contrary that there is or has been some sort of issue with violence, it certainly does not manifest itself by repeated acts of serious violence. So much may be seen from his criminal record, and from his recent record of infringements against prison discipline.

28   Secondly, throughout the past many years he has been able to behave well in custody. Indeed, he has been spoken of highly as a worker, including one who has worked outside the prison walls and in contact with members of the community.

29    Thirdly, whilst it is true that his release to parole in 2014 failed, in the sense of the defendant returning to prohibited drugs and thereafter being returned to custody, it is noteworthy that there is no suggestion of him committing an act of violence during the many months whilst he was on parole last year.

30    Fourthly, the three manslaughter offences, whilst resulting in the unlawful deaths of three fellow human beings, were not serious violence offences as defined in the Act. That is because, whilst it is true that other formulations of manslaughter may feature, as an element, an intention to cause death, grievous bodily harm or actual bodily harm, or recklessness with regard to any of those three consequences, this manslaughter did not. So much is clear, he submitted, from the remarks on sentence of Dunford J.

31   Fifthly, the “glassing” was an explosion of drunken anger that was concluded in a matter of seconds. Regrettably, such crimes are not uncommon in the hotels of this State. And yet it cannot be the law that every person who commits such an act is liable, at the conclusion of the head sentence imposed for such an offence, to be incarcerated further, or to have his or her liberty markedly curtailed in the community thereafter.

32    Sixthly, the various risk assessment reports do not strongly support the proposition that there is a real possibility that the defendant will commit a serious offence of violence if released unconditionally. If anything, the reports are nuanced, cautious and guardedly optimistic about the defendant refraining from doing so.

33    Seventhly and finally, one should be cautious about placing too much reliance on the self-reported acts of violence that have been revealed in a therapeutic setting by a prisoner. Apart from anything else, one does not know the full context of such matters, including whether some or all of them were done in self-defence, or were otherwise somehow legally or morally justified.”

16. Mr Mackey also argued that it was relevant to consider that he had been released on parole on 17 April 2014 and had lived in the community until 24 December, without commission of a serious violent offence. He had not completed a violent offenders program while he was in custody, in part because it was not available while he was on protection and then he was found suitable for residential rehabilitation in the community. He had completed other relevant courses, such as the Getting Smart and Smart Recovery, Controlling Anger and Learning to manage it, Managing Emotions, Anger Management, Alcoholics Anonymous and Narcotic Anonymous courses.

17. It was also submitted that in 2014 he was assessed by Ms Haddad as suitable for parole, because a gradual reintegration with strict supervision and monitoring was considered to be equally important to his participation in the VOTP.

18. Pre release he had also regularly participated in community projects. Ms Merhi’s pre-release report had noted that his performance had been excellent. After release he lived with family members and in private boarding. There had then been no violent reoffending, despite significant stressors, including his father’s death. He had then pursued weekly counselling for substance abuse and psychological issues and pursued a TAFE course.

19. It was also submitted to be relevant that on release, Mr Mackey had required intensive drug rehabilitation in residential rehabilitation. Before revocation of his parole, he had sought such a program, as Ms Nowrot deposed, but he had not been assessed to be suitable, as Dr Roberts observed. In custody he was being treated with a suboxone maintenance program, as well as counselling. Dr Roberts supported pursuit of that treatment at a specialist treatment facility on his release.

The statutory requirements

20. Section 5E(2) permits a final supervision order to be made only if the “Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision”.

21. In resolving the issues lying between the parties, it is also necessary to bear in mind that s 5E provides that:

“(3)     The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence”

22. Davies J considered in Richardson (No. 2) at [90], that the higher standard of proof imposed by the words “a high degree of probability” used in s 5E, must be given effect when the evidence is assessed. Further, that the phrase "unacceptable risk" involves a balancing exercise between, on the one hand, the commission, in this case of a serious violence offence, and the likelihood of that risk coming to fruition, and on the other, the serious consequences for the defendant, either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order.

23. R A Hulme J took a somewhat different approach to the construction of the statutory term in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [20], to which he adhered in State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]. He considered that the words “unacceptable risk” had to be given their meaning in the context of the objects of the Act, concluding that he “would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made” (see Thomas (Preliminary) at [20]).

24. Hoeben CJ at CL discussed the two approaches in Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [41] - [44], preferring that of R A Hulme J.

25. The State submitted that R A Hulme J’s approach, which Button J had followed in this case, represented the correct construction of the phrase. Mr Mackey agreed.

26. I, too, agree with Hoeben CJ at CL that R A Hulme J’s approach to the construction of the phrase is correct, according in my view as it does with the approach to statutory construction discussed by the Chief Justice in SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2014) 86 NSWLR 367 at [58].

27. That means that the evidence must be assessed in order to determine whether an “unacceptable risk” is established to a “high degree of probability”, without reference to the impact on Mr Mackey of a conclusion as to the nature of that risk.

28. In determining whether or not to make an extended supervision order, if the statutory threshold is satisfied, s 9(3) requires the Court to have regard to the following matters, in addition to any other matter it considers relevant:

“(a)     the safety of the community,

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

(c)     the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant 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 relevant offence,

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

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

(f)    the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

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

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

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

(i)    any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).

The evidence establishes that Mr Mackey poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision

29. The following evidence, I am satisfied, establishes to the necessary high degree of probability that Mr Mackey poses an unacceptable risk of committing another serious violence offence if he is not kept under supervision on release, notwithstanding that thus far, he has only committed one such offence.

30. Mr Mackey was born in 1977 and is now aged 38. He grew up in Glebe with his parents and three siblings. He attained his School Certificate in 1993 and commenced, but did not complete, Year 11. Since he became an adult he has spent most of his life in custody.

31. As Button J found, the evidence well established that Mr Mackey has a problem with drugs, which has bedevilled him for over twenty years. He also has a serious problem with alcohol. They have led him not only to the pursuit of crimes to fund his drug taking, but offences of very considerable violence, long periods of resulting incarceration and finally, this application.

32. Mr Mackey was released on parole for the index offence in April 2014, but in September was detected to have taken amphetamines and methylamphetamine (ice). In November he underwent detox at Nepean Hospital, but later that month resumed heroin use, shortly before commencing treatment with suboxone. By the end of November he was using heroin daily and, it is not disputed, offending by stealing a truck from the Fish Markets and attempting to break and enter Woolworths at Southpoint Shopping Centre.

29. Late in November, Mr Mackey was found in a car with tools in a backpack, including a crow bar, torch, gloves and a screwdriver. He was arrested on driving offences in December, with power tools found in the car which were seized as having been unlawfully obtained. He then told police that “My brain’s fucked from all the drugs”. His parole was revoked. After he was released under the interim supervision order which Button J made, he was arrested and charged with the 2014 offences, in respect of which he is now bail refused.

30. That offending reflected a continuation of Mr Mackey’s long pattern of drug abuse and offending to support that abuse, which has continued since his adolescence. Over that time, not even the deprivation of his liberty and treatment for drug abuse in custody has stopped Mr Mackey from his pursuit of drugs. Nor did the conditions of supervision on which he was released when given parole in 2014, which required him to abstain from drug and alcohol abuse, as well as offending.

31. That long record of offending commenced in August 1993, when Mr Mackey was charged with unlicensed driving and stealing a vehicle. He had lost control of that vehicle and was, as result, hospitalised with head injuries, lacerations and an injured hand. In 1994 and 1995 he was convicted of a number of stealing and break and enter and steal offences. These involved breaches of supervision and parole orders. In 1995 two assault offences were found proven, but they were dismissed under s 556A.

32. It was in 1995 that Mr Mackey committed the most serious of his offences, for which he was charged with murder, but finally convicted of three manslaughter offences. This was the result of a dispute over a phone, which resulted in a fight, in which he used a paling fence as a weapon and threatened to kill his assailants and to burn down their house. Later he threatened to petrol bomb their house.

33. The following day he was told by another offender that she also intended to burn down the house. Mr Mackey agreed with the plan and encouraged her. They and others walked to the house. The other offenders gained entry to the house. One of them started a fire at the back and front of the house, which engulfed the property, resulting in the death of a victim and her two young children. Mr Mackey later admitted his involvement to police. He was charged with murder and later pleaded guilty to 3 counts of manslaughter and to malicious damage. An appeal on sentence was dismissed in 1999.

34. As was common ground between the parties and Button J found, the three manslaughter offences were not “serious violence offences” as defined, they having been found to be the result of an unlawful and dangerous act. They were, however, each very serious offences, relevant to what here falls to be decided, given not only the circumstances in which they were committed, of drug abuse and after other violence, but involving as they each did the death of an innocent victim. They are, as a result, a relevant part of the factual matrix against which a conclusion has to be reached, as to whether Mr Mackey now poses an unacceptable risk of committing a serious violence offence.

35. On sentencing Mr Mackey for that offence, Dunford J observed that burning down the house had not only received his immediate and enthusiastic encouragement, but also involved his willing participation, on a day when he had spent the afternoon smoking marijuana.

36. While in custody for those offences, Mr Mackey was involved in various institutional misconducts, including for violence and illicit drug use.

37. Mr Mackey was released on parole in November 2003. He later admitted being in breach of parole by his use of marijuana and ecstasy. In July 2004 he also committed a break and enter offence, of which he was convicted in 2006. In July 2004, he committed the index offence, for which he was arrested in September. He was convicted of that offence by a jury and his sentence appeal was dismissed in 2006.

38. In sentencing him for the index offence, Marien DCJ observed it to have been a “cowardly, brutal and unprovoked attack”, involving an unreasonable response after Mr Mackey had drunk steadily for some six hours. There was then evidence of a history of illicit drug use and that his domestic relationship was then also problematic, because of alcohol abuse. On sentencing, Mr Mackey gave evidence that he was an alcoholic; that there was a direct link between his drug and alcohol use and his offending behaviour; and that he had a problem with violent responses, for which he recognised he needed help.

39. Mr Mackey undertook a number of programs while in custody, but in an April 2013 psychological report, Ms Haddad considered that they had been insufficient to address his risk of violence. He was offered, but declined to participate in the Violent Offenders Therapeutic Program, on the last occasion in April 2014. He became eligible for parole in March 2013, but it was repeatedly refused, because of his inconsistent engagement with certain other programs.

40. In her assessment, Ms Haddad came to the view that Mr Mackey’s responses to testing reflected an exaggerated attempt to disguise underlying antisocial attitudes and that with intoxication, he was unable to regulate his true beliefs and attitudes. She found that his recent institutional conduct had been positive, without physical and verbal aggression, consistent with abstinence from drugs and alcohol. On the Violence Risk Scale, she came to the view that drinking led to impulsive acts of violence and that drugs and alcohol had an impact on his ability to control his emotions, consistent with violence charges in custody, in proximity to failed or refused urine testing. Triggers for re-offending identified were negative peer influences, minimisation and justification of violent behaviour, alcohol abuse and use of illicit substances, with resulting deterioration of emotional regulation and subsequent disinhibition.

41. In a January 2015 risk assessment report, a psychologist, Ms O’Neill, observed that Mr Mackey had disclosed other violence for which he has never been charged, including hitting a man with an iron bar and pub fights. In September 2012 he had been assessed as falling in the low to moderate range of risk of re-offending generally or violently within 12 months of release. That was revised to in May 2014 to high risk.

42. Ms O’Neill observed that Mr Mackey’s ability to cope was impaired when intoxicated; that he had cognitive distortions from experiences of having been bullied, from which he had learned that violence could have positive outcomes; that use of substances affected his emotional regulation skills; he tended to responded more strongly to perceived threats in the presence of peers; and that he had a record of willingness to use a weapon, when he felt disadvantaged. She considered that the manslaughter offences reflected impulsively being involved in offending when influenced by antisocial peers, with drug use playing a factor. When intoxicated he was likely to react with violence without thinking of consequences. She considered his risk of violent offending in relation to adult male violent offenders to fall into the moderate-high risk category.

43. Ms O’ Neill observed that it was “unclear” whether his future violence would meet the definition of a serious violence offence. His past history was consistent with a capacity to engage in such an offence, but his recent behaviours indicated the potential to manage himself, without resort to violence.

44. Ms O’Neill’s views were taken into account in the risk management report prepared by Ms Nowrot, a member of the Department of Police and Justice Extended Supervision Orders Team.

45. In custody in February 2015 Mr Mackey failed a urinalysis test for buprenorphine and mirtazapine. He failed another test in March.

46. While released under the interim supervision order, it appears that Mr Mackey may have abstained from drug and alcohol abuse, although it is relevant that Ms Nowrot’s June 2015 affidavit indicated that he had not been subject to urinalysis to that point. He again commenced supervised suboxene therapy to control his craving for heroin during that time.

47. Dr Ellis saw Mr Mackey on 18 May 2015 after his release from custody. Mr Mackey identified having had problems with depression, with which he was first diagnosed 10 years ago, as well as with drugs and alcohol. He described feeling angry with himself and the world and having used drugs throughout his life, in order to improve his ability to interact in social settings. He said that his alcohol abuse by age 26 had escalated to the point where he was drinking most nights of the week, to the point of experiencing alcoholic blackouts, but he had only attended a few meetings of alcoholics anonymous in 2003 and 2004.

48. Mr Mackey also described a very significant level of escalating drug abuse over time. He began smoking heroin at age 14 and marijuana at age 15. His heroin use escalated to 2 or 3 grams every day. By 16 or 17 he was smoking 3 grams of marijuana every day, to which he developed a tolerance and became irritable when it was not available to him, but he denied experiencing paranoia. By 16 he was also using half a gram of methamphetamine (speed) every week, as well as ecstasy on a weekly basis. He had also tried LSD and occasionally used cocaine, as well as prescription benzodiazepines and opioids bought from street dealers, which he used to help him come down off other drugs.

49. Mr Mackey said that he continued using heroin even when in custody. He experienced tolerance and withdrawal from heroin, which he had last used in December 2014. After his release from custody in 2014, he had also used crystal methamphetamine (ice).

50. Mr Mackey developed a bowel problem secondary to the use of heroin. His father and paternal uncle had a problematic use of alcohol.

51. The criminal history which Mr Mackey gave Dr Ellis was that as a juvenile he had not been convicted of drug or violence offences, having been found guilty, but not convicted of two assaults in 1995. He was convicted of manslaughter in 1997 and grievous bodily harm in 2005. Early in custody he fought to protect his own reputation and to protect a smaller man. Later he fought over differences of opinion. He had been involved in at least six fights, had four institutional charges for fighting or assault, as well as other charges for drugs, disobedience and intimidation.

52. Mr Mackey said that he came from a loving family background, which was marred by alcohol abuse and domestic violence. He is the oldest of four children and there are four step children with whom he has no contact. His parents had a graphic design business. He was cheeky at school and not academically bright.

53. Mr Mackey also told Dr Ellis that the victims of his manslaughter offence were neighbours. He had had an argument with the son about stolen goods. He said that he talked his co-offender, who was drunk, into setting the fire and then he walked away, without considering the consequences. He learned of the deaths he had caused the following day and felt that he was a monster.

54. Mr Mackey was 26 when released. He then lived with his partner, the mother of his daughter and worked as a labourer. He was back in custody within 10 months because he committed the index offence. He described having been drinking all night and being off his face, when he smashed a glass into a guy’s face. He said that he had felt afraid when he bumped into the man and had been offended, by how he spoke to him.

55. Mr Mackey said that when he was released in 2014, he wanted to find rehabilitation, but could not secure a place.

56. Mr Mackey also explained his attitude to the supervision order to be that he did not think that it was warranted, but he was prepared to take advantage of the support it offered him, including dental care. He did not wish to drink or use drugs, but identified being vulnerable both to their use and being violent with alcohol.

57. Dr Ellis considered that Mr Mackey met the criteria for mixed personality disorder with anti-social and narcissistic features, as well as substance use disorder. He had displayed constant rule breaking behaviour, poor interpersonal relationships, irresponsibility, poor impulse and anger control, resulting in physical assaults over his lifespan. He had limited capacity for empathy, held some attitudes of exaggerated talent and a heightened sense of entitlement.

58. Dr Ellis concluded that his substance use disorder was in partial remission in a controlled environment with replacement therapy, but with recent relapse during supervision. He also had a history of depression, which was in remission, which could be an independent disorder, or a substance induced mood disorder.

59. Dr Ellis did not consider that Mr Mackey had any intellectual disability, but demonstrated some minor cognitive problems on testing, possibly as the result of heavy alcohol and drug use. There was no evidence of serious neurocognitive dysfunction.

60. Dr Ellis explained that current risk assessment techniques did not make it possible to determine whether an individual would reoffended with a violent offence, but that risk factors can be identified. He explained the actuarial measures which assisted clinical evaluation and the particular tool he had used, HCR-20 V3, which had a strong correlation to tools used by Ms O’Neill and Ms Haddad.

61. Dr Ellis concluded on Mr Mackey’s history, that he had a high loading of historical risk factors associated with violence; that he displayed limited insight into his propensity for violence, but a better understanding of his need for treatment; that while he did not endorse specific violent intent or plans, his long term attitudes to violence as a means of solving problems, are yet to be consistently tested; that he showed some minor cognitive problems and instability adjusting to community settings; and that his use of substances in respect to mood instability, contrary to supervision requirements, indicated a moderate loading of modifiable risk factors, that render internal control of his baseline historical risk problematic.

62. Dr Ellis identified future problems associated with violence which indicated that Mr Mackey had a high need for professional services and plans to contain his potential for violence. They included the limited personal supports which Mr Mackey could access; accommodation where he is exposed to criminal associates; and problems engaging in treatment and supervision, indicated by his recent substance use.

63. Dr Ellis considered that the 1995 manslaughter charge to be an unlikely model for any future violence by Mr Mackay. His history of fighting in custodial settings as a reaction to a perceived need to demonstrate toughness was reflected in the index offence in a public bar, which had been magnified by intoxication. He concluded that when intoxicated, Mr Mackey’s aggression could include use of makeshift weapons or prolonged attacks where physical injury is likely.

64. Dr Ellis concluded that Mr Mackey falls into a group of persons with a risk for serious violent offending that is statistically moderate to high risk and in his case, greater than a theoretical average offender, but that specific treatment and supervision would reduce that risk. Given his long period of institutionalisation, no employment skills, historical association with antisocial groups and history of marginal accommodation, Dr Ellis identified various areas where stability needed to be achieved, by supervision. He considered a period of 3 years’ supervision to be reasonable for Mr Mackey, in order to improve his functioning in the community and to refine the appraisal of his risk.

65. Dr Ellis also considered that Mr Mackey required 12 months in a residential facility, as an initial step to community reintegration, given his current mental state, chronic personality disorder and current attitudes. Long term medical treatment for his chronic substance use, associated with violent offending, was also required, such treatment having a strong association with reductions in criminal and violent behaviour. Psychiatric and psychosocial treatment were also recommended.

66. After examining Mr Mackey on 22 May, Dr Roberts concluded that he had suffered a major depressive disorder, which had responded to treatment and was in remission. He also diagnosed Mr Mackey as having a substance use disorder, which he considered was also in remission, but had an uncertain prognosis, given his history. He considered that regular attendance at a Drug and Alcohol Clinic would provide him with a degree of protection.

67. It must be observed that Dr Roberts’ report suggests that Mr Mackey’s account of relevant matters was not complete or accurate, including, for example, as to his background, his use of illicit substances while on parole in 2014 and in custody, or the extent of his past alcohol abuse. Dr Roberts’ views, including as to Mr Mackey’s prognosis and the risks which he poses are, on the evidence, overoptimistic.

68. The account given to Dr Roberts also suggests that he was not entirely frank with Dr Ellis, to whom he did not reveal, for example, having experienced paranoia as the result of his cannabis use.

69. Mr Mackey told Dr Roberts of his rapidly escalating use of cannabis and heroin from age 14, to daily use, with opiates and cannabis remaining his drugs of choice, but use also of amphetamines, cocaine, ecstasy, benzodiazepines and methamphetamines. He described cannabis as having lost its appeal, however, because of associated mild paranoia.

70. Dr Roberts understood that methamphetamine and amphetamine use had been the cause of the breach of Mr Mackey’s parole in 2014. At that time Mr Mackey had also resumed using heroin and was being treated daily with suboxone, but he told Dr Roberts that he had never then been treated for his substance use issues with pharmacological therapy. It was also early in November 2014 that he had undergone 3 days’ detox at Nepean Hospital, not the 3 to 4 weeks Dr Roberts understood.

71. When Mr Mackey saw Dr Roberts in May he told him that he had commenced suboxene treatment only two weeks prior to the assessment and that the 8mg daily dosage which he was receiving was sufficient, obviating his desire for heroin. Notes in evidence show, however, that on 15 July he told Ms Murray that this level was not holding him and that he wanted to increase his dose.

72. Mr Mackey also told Dr Roberts that he had no past issues with alcohol, that when on parole in 2003 and 2004 he had not used heroin, but that he had been binge drinking on weekends, which, he described, had caused him to be a “a nasty arsehole”. He also said that he was scared of the potential impact of the resumption of alcohol use.

73. In Dunford J’s sentencing remarks in 1997, his Honour noted at p 10 that Mr Mackey was not then a regular drinker and not affected by alcohol on the night of the fire, in 2005 Marien DCJ referred to the evidence which Mr Mackey gave on sentencing, that his alcohol use was a problem; that he could not control the amount he was consuming; or his actions when intoxicated; that it had caused problems with his relationship; it had also resulted in he and his partner becoming involved in an incident in which they had both been stabbed and hospitalised; and on two other occasions; had resulted in police attending his home to deal with domestic disturbances. In a probation report, Mr Mackey had acknowledged his problematic use of alcohol and need to address it, but had attended only one alcoholic anonymous meeting, even though while in custody on the manslaughter charge he had undertaken drug and alcohol courses and seen a psychologist. In cross-examination he admitted he saw himself as being an alcoholic and having a problem with violent responses, for which he needed help.

74. Dr Roberts also noted the failed attempts to obtain residential rehabilitation for Mr Mackey when on parole in 2014, resulting in his rearrest in December, during, what Dr Roberts described to have been “a chaotic, disorganised episode”.

29. Mr Mackey told Dr Roberts that amphetamine use made him quiet and withdrawn, on opiates he was normal and that alcohol was a dangerous substance for him. The manslaughter offences had occurred when he was effected by heavy drinking and 10 to 12 bongs of cannabis, over 5 to 6 hours. Dr Roberts understood from documents that Mr Mackey had adopted and encouraged the lighting of the fires, but was not the instigator and did not actually light the fire. He told Dr Roberts that he did not appreciate the risk and that after learning of the death the following morning, spent three weeks in a cannabis induced intoxication. He also explained his regret at his behaviour. The account which Mr Mackey gave Dr Ellis, clearly acknowledged more culpability for what occurred, than what he told Dr Roberts about.

30. Dr Roberts noted the circumstances of the 2004 glassing offence, and other violent offences. He considered the glassing to have represented a dramatically aggressive escalation, in response to an accidental bump. Mr Mackey also told Dr Roberts about his internal gaol charges for fighting and drug related matters, including numerous breaches of discipline for failing to provide urine samples.

31. Mr Mackey told Dr Roberts that he considered the supervision order unfair, its terms intrusive and embarrassing, but spoke positively of his supervisor, Ms Nowrot and said that he was abiding by its terms.

32. Contrary to the account which he gave Dr Ellis of his family background, Mr Mackey described to Dr Roberts a childhood characterised by poverty, drugs and alcohol and having been bullied at school. Dr Roberts noted Mr Mackey’s history of depression and observed that he had given a frank and articulate account of his circumstances and had expressed regret for his past conduct, which seemed sincere.

33. As was his right, Mr Mackey did not give evidence and so the accounts which he has given those who have examined him have not been tested. It is relevant, in that context, to note that what he told Dr Roberts about his family background and other matters, does not appear to have been accurate. Not only was the account which he gave Dr Ellis to very different effect, both when sentenced by Dunford J and Marien DCJ, the evidence was also quite different.

34. Dunford J observed (at 10) that his mother was probably part Aboriginal, but that unlike his co-offender, Mr Mackey had suffered none of the deprivations or disadvantages referred to in R v Fernando (1992) 76 A Crim R 58 and that he had come from a stable, close supportive family, his parents both being hardworking and respected. His Honour found that with their support and his acknowledgment of his wrongdoing, his prospects for rehabilitation were strong. In 2005, Marien DCJ’s also referred at p 6 of his sentencing remarks to what Mr Mackey had told a probation officer, about his “close knit and supportive family”.

35. Dr Roberts noted doubts having been expressed in earlier reports as to the extent to which future violence which Mr Mackey might commit would constitute “a serious violence offence” and a degree of optimism as to his more recent ability to contain his propensity for aggression. He also noted the view that his history of substance abuse and lengthy periods of incarceration had been identified as potentially compromising factors; and that his risk of general reoffending had been estimated to fall into the high range and his risk of violent reoffending, falling into the moderate to high range. He also noted that no VOTP program had been available to Mr Mackey, because that required him to sign off from protection in custody, about which he had genuine concerns.

36. Dr Roberts took the view that Mr Mackey’s internal gaol charges suggested that if not for his protracted incarceration, his substance use would have endured at a greater level than it has. He observed that intoxication had featured in both the manslaughter and index offences. The efforts pursued to deal with his substance abuse had not prevented his 2014 relapse, but he had demonstrated insight into the propensity of such abuse to bring him into conflict with the law, which was a positive factor, as were the programs he had pursued in custody. His history of abuse since his early teens was a negative prognostic indicator, as was his substance use in custody;

37. Dr Roberts noted that Mr Mackey had been assessed as falling into the moderate to high range of risk of committing another serious violence offence, but he took the view that his overall risk of future criminal behaviour fell within the moderate range, given his record of offending even during periods of supervision in the community. He considered Mr Mackey’s risk of engaging in a serious violence offence to be low, while he remained abstinent from substances, he having been identified as someone who was able to control his emotions and regulate anger.

38. Dr Roberts considered that Mr Mackey’s risk would escalate dramatically, however, if he were to relapse to substance abuse, explaining that “[h]is history of having become involved in explosive, highly aggressive an extremely dangerous act, in response to innocuous circumstances, reflects the potential for an escalation of risk to the moderate to high range in the presence of intoxication”. He also considered that his history of depressive illness was a factor which also predisposed him to a relapse of substance use.

39. Dr Roberts considered ongoing treatment with suboxene at the Langton Centre to be a crucial aspect of treatment expected to offer the most predictable protective influence Mr Mackey against reoffending.

40. It must be observed, however, that in 2014 suboxene treatment did not prevent Mr Mackey’s resumption of heroin use, nor the conduct which led him to be arrested and charged with the offences for which he is now held in custody. That, it appears, was the result of the resumption of a pattern of offending Mr Mackey has pursued throughout his adulthood, in order to fund his drug abuse. When he returned to custody, he again failed urinalysis because of ongoing substance abuse. This was the very kind of behaviour identified by Dr Roberts as dramatically escalating the risk which Mr Mackey poses of committing a serious violence offence.

41. Dr Roberts noted the problem Mr Mackey faces, a residential rehabilitation program being of real potential benefit to him, but strict criteria for entry to such programs precluding him, because of his history of significant aggression. Despite his views as to the level of risk which Mr Mackey posed, Dr Roberts, too, concluded that his successful reintegration into the community required structure and support over a period of up to 3 years.

Conclusion

92. As Button J concluded, Mr Mackey has not repeatedly demonstrated a tendency to commit crimes of great violence. Nevertheless, on the evidence led at the final hearing, I am satisfied, to a high degree of probability, that he still poses an unacceptable risk of committing a serious violence offence, if he is not kept under supervision on his release from custody, as the State seeks.

93. While Mr Mackey’s three manslaughter offences were not serious violence offences as defined by the Act, they are relevant to what here falls to be decided. As Button J found, it was antisocial and dangerous for Mr Mackey to provide his enthusiastic support and encouragement, as he did, for the setting of the fire which killed his three victims. That occurred at a time when he was disinhibited by his drug abuse and alcohol, after a violent confrontation involving his use of a makeshift weapon.

94. The index offence which he committed years later, was a serious violence offence, involving significant violence which caused great injury to his victim, by use of another makeshift weapon. That violence arose over a triviality, when Mr Mackey was also disinhibited, on this occasion by his alcohol abuse. The other acts of violence reported by Mr Mackey and considered by those who have examined him, are consistent with he having ongoing problems with managing his anger and being prone to react with violence, even when not intoxicated.

95. Unquestionably, Mr Mackey has to deal with his problems with substance abuse, anger management and violence, if the unacceptable risk that he will commit further serious violence offences, is to be addressed. That will not only be of benefit to the community, but also unarguably of considerable benefit to him.

96. The evidence establishes that at present, Mr Mackey’s release to completely unconditional liberty is likely to result in him again quickly resuming his abuse of prohibited drugs and alcohol. Given his problems with anger management and record of past disinhibited and highly antisocial behaviour when so affected, the risk that he will commit further serious violence offences, is simply unacceptable.

97. Like Button J, I consider that the evidence that on his release on parole in 2014, Mr Mackey abused not only speed and heroin, but also ice, well known to be a powerful stimulant that can cause people to act aggressively, is highly relevant to the conclusion which the evidence compels. That conclusion was supported by his report to Dr Roberts, that marijuana use had caused him to experience paranoia and by the evidence of his further drug abuse in custody, even in 2015, when he said about his failed urinalysis in March: “What did they expect - I have a drug problem”.

98. The evidence establishes that Mr Mackey is a man of normal intelligence, well capable of understanding the consequences of the choices which he makes. On the expert evidence, he lacks insight into his behaviour and his own responsibility for his choices, as his repeated refusal to undertake the VOTP programs he has been offered in custody, revealed. On the evidence, it is not only treatment for his addictions which would be of benefit to him.

99. It is Mr Mackey’s ongoing drug problems, when considered with his unaddressed problems with anger management, alcohol abuse and the disinhibited, antisocial and violent behaviour which he is prone to engage in, when under the influence of such substances, which establishes that Mr Mackey does pose an unacceptable risk of committing further serious violence offences, if not supervised on his release as the State proposes.

100. Until his release under the interim supervision orders made by Button J, Mr Mackey has not been able to comply with conditions imposed upon him on release from custody, which required him to abstain from drug and alcohol abuse and offending. He failed urinalysis in custody in March and was not subjected to such testing before he returned to custody after his release on the interim supervision order. It is a continuation of such abuse which creates the very significant risk that all who have examined him have identified, namely, the commission of another serious violence offence, when Mr Mackey reacts out of proportion to events which confront him, including by putting to use a makeshift weapon which comes to his hand. On the evidence that risk is simply unacceptable.

Should the disputed conditions be imposed?

101. As discussed in State of New South Wales v Green (Final) [2013] NSWSC 1003 by R A Hulme J at [36] - [38], any conditions attaching to the final order which is made, ought to specifically address issues relevant to currently identified risk factors in relation to Mr Mackey’s future offending; they should be limited to addressing conduct relating to the risk of future serious violence offences which he poses, as opposed to criminal offending generally, although, of course, it is obvious that a condition directed at what the evidence discloses about the risk of future serious violence offences, is also likely to have a resulting impact on the risk of other criminal offending. The conditions may encourage Mr Mackey to undertake rehabilitation, but ought not be unjustifiably onerous, or simply punitive.

102. It is also relevant to bear in mind that the effect of the imposition of any such condition is to expose Mr Mackey to criminal sanction, if they are breached. Accordingly, there must be a proper basis for their imposition (see State of New South Wales v Ali [2010] NSWSC 1045 at [88]).

103. Ms Nowrot was Mr Mackey’s supervisor during the interim supervision order. In her affidavits, she explained the role of the team of which she was a member, the management plan devised for Mr Mackey and how it was implemented and he was supervised, including by use of various assessment tools.

104. Ms Nowrot explained Mr Mackey’s progress while on supervision, including admission to the Nunyara COSP; referral to the Justice Health Connections Project, for his drug use and opiate replacement treatment at Royal Prince Alfred Hospital; referral to a psychiatrist; interaction with family and friends; and satisfactory response to supervision.

105. Ms Nowrot also explained the reasons for various of the conditions of supervision sought in the final order.

Condition 5 electronic monitoring and conditions 6 - 9 Schedule of movement

106. Mr Mackey objected to conditions 5 to 9 which provide:

“Electronic Monitoring

5.   The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements

6.   If he is asked to, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

7.   If the defendant wants to change anything in his schedule of movements after he has given it to his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period

8.   The defendant must not deviate from his schedule of movements except in an emergency.

9.   The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.”

107. He relied on Ms Merhi’s pre-release report of March 2013, which referred to a high level of supervision with regular reporting and home visits. This of course, predated his release on parole in 2014 and his relapse to the drug abuse identified by both Dr Ellis and Dr Roberts as a critical aspect of the risk which he poses of committing further serous violence offences, which the evidence establishes is an unacceptable one.

108. In his report Dr Roberts observed that “[f]rom a purely psychiatric perspective, the necessity of Mr Mackey to wear tracking technology is potentially negative in its impact on self-esteem, the development of which is expected to be important for his successful progress towards integration into the community. The relevance of GPS tracking in mitigating his risk of exposing himself to circumstances with potential to elevate risk is beyond the scope of my expertise in psychiatry.

109. Mr Yeoman described the new tracker anklet which Mr Mackey would have to wear, if required by his DSO, to be slim fitting, made of grey plastic and protruding no more than 2cm at the point of the tag. It is water resistant and can be worn even when swimming. If force is used to tamper with the tracker, it alerts monitoring staff. The tracker emits data which allows movement to be monitored using GPS technology, radio frequency monitoring, global system for mobile communications and the programming of exclusion zones. It has to be charged for two hours per day, by use of a plug and docking station, which contains a rechargeable battery and can be attacked to the tracker.

110. Ms Nowrot explained that electric monitoring was an important risk management tool while Mr Mackey was moving in the community, intended to be implemented at the discretion of a DSO like her and with flexibility. She envisaged that it would be managed in light of Mr Mackey’s adherence to the conditions relating to his schedule of movement, including as to curfews imposed on him.

111. The disputed conditions are designed not only to manage Mr Mackey’s movements, but to deter him from not complying with the conditions imposed upon him and from re-offending. They also enable random visual surveillance and checks to be undertaken, as to his adherence to his case plan. If an alert arises, telephone contact can be made and if necessary, officers despatched to ascertain the situation, or for police to be alerted.

112. These conditions were all opposed as being unnecessarily intrusive, given the nature of the risk which Mr Mackey posed and the fact that, as the chronology marked MFI 3 had disclosed, there were other means available to detect and deal with any breaches of his other conditions, including, for example, urinalysis which had in 2014 detected that his drug taking had relapsed.

113. Electronic monitoring was also observed as providing a possible impediment to Mr Mackey’s acceptance into a residential rehabilitation program, at Odyssey House in March 2015. Under the proposed condition, however, the requirement for electronic monitoring could be relaxed by the DSO, during admission to such a program. The exercise of the discretion would no doubt depend on whether the program was accepted as being a suitable one for Mr Mackey.

114. It was also accepted by both parties that it was open to the Court to amend the proposed conditions, by, for example, not permitting electronic monitoring in the first instance, unless Mr Mackey breached any other of his conditions of supervision, described as involving a carrot, rather than a stick. Two alternatives to condition 5 were later proposed, which appear at schedule B. The first envisaging removal of the monitoring equipment if certain conditions are met. The second envisaging monitoring equipment not initially being required and the condition being triggered by breach of other conditions.

115. I have considered whether it would be appropriate either to refuse these conditions at all, or to alter the conditions of reporting by amending condition 5, in light of what the parties proposed. On the evidence, I have concluded, however, that the State has established an evidentiary basis for the condition initially sought. In reaching that conclusion it was highly relevant that the index offence was committed while Mr Mackey was on parole, at a time when he then ought not to have been abusing either drugs or alcohol as he was; that he breached a number of conditions while on parole in 2014 and failed urinalysis as recently as March 2015, when in custody.

116. The evidence establishes that even during the highest level of supervision, which involved deprivation of his liberty while in custody, Mr Mackey has not abstained, but has pursued and obtained access to illicit drugs. While at liberty on parole, the supervision he was subjected to was significantly less, with the result that he not only reverted to abuse of heroin, other drugs and alcohol, but also used ice. In so far as he appears to have been able to abstain, it was while he was subject to the interim supervision order, which included the disputed conditions. Whether he did abstain is uncertain, given that there was no urinalysis before he returned to custody.

117. In all of those circumstances, I am satisfied that the evidence establishes a proper basis for the imposition of the conditions sought. They give an officer like Ms Nowrot, who, on the evidence has Mr Mackey’s regard, the discretion to relax, when appropriate, the extent of his supervision once released. That will depend on him.

118. On all of the evidence, I am satisfied that the disputed conditions properly further both the objects of safety and protection of the community and that of achieving Mr Mackey’s rehabilitation.

Association with others

119. Condition 31 provides:

“The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service”

120. This condition, too, was submitted to be too onerous, given other conditions which require Mr Mackey not to associate with person his DSO tells him not to (condition 28), or those who are consuming or are under the influence of illegal drugs or alcohol (condition 29), or to go to a place his DSO tells him he cannot go (condition 17).

120. It was submitted that these other conditions adequately addressed the concerns Ms Nowrot identified in her affidavit, and that condition 31, particularly as it concerned internet use or mobile phone based social networking, was unnecessary.

121. In her affidavit, Ms Nowrot referred to the evidence of association with pro-criminal peers to be an acute risk factor for Mr Mackey, particularly in the presence of substance abuse and that his 2014 release appeared to have coincided with his return to the Glebe area and his association there with criminal and substance abusing peers.

122. I am also satisfied that an evidentiary basis has been established for this condition. The example used in oral submissions, Facebook, was submitted as having no link to offending conduct.

123. There was no evidence that Mr Mackey used Facebook, but the possibility explains why the condition is an appropriate one, given the evidence as to the risk which association with substance abusing peers poses for him. As was submitted for the State, the condition would also apply to membership of a gym known, for example, to be a location where there was a lot of drug use.

124. On the evidence as to the nature of the risk which Mr Mackey poses and its potential triggers, I am satisfied that the condition is an appropriate one.

Access to the Internet

126. The same conclusions must be reached in relation to conditions 33 and 34 which provide:

“Access to the Internet & Telecommunications Devices

33.   The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names used by the defendant and the nature and details of the internet connection, as directed.

34.   The defendant must obey any reasonable directions by his DSO about the use of phones, computers and other devices, including any reasonable directions relating to his access to the internet.”

127. Use of phones and other devices which can be used to access the internet to order drugs, is a very obvious risk in Mr Mackey’s case. On the evidence, while released under the interim order, Mr Mackey had already been reluctant to provide the names of people he had been communicating with.

128. That he had a desire for privacy and a wish not to expose his friends and family to the surveillance he is subjected to, is understandable, but given the unacceptable risk which relapse into drug abuse poses for him committing further serious violence offences, the intrusion which this condition imposes is, I am satisfied, a necessary one.

Access to Violent and Classified Material

129. Condition 41 provided:

“Access Violent and Classified Material

41.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, R18+ (for reason of violence), or any other material as directed by the DSO.”

130. It was submitted that there was no evidence that Mr Mackey’s history of violence had been influenced by any form of entertainment. In oral submissions it was explained that Mr Mackey wished to play a certain video game, Grand Theft Auto.

131. It emerged that the operation of the condition was intended to be discretionary, providing a DSO with the discretion to refuse permission of particular games. I suggested that it was ambiguous. It was redrafted, but the objection was pressed.

132. The condition finally pressed was:

“Access Violent and Classified Material

41.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to:

a.   material classified or material that would be classified as Refused Classification;

b.    material classified as R18+ (for reason of violence) unless permitted by the DSO; or

c.    other material as directed by the DSO.”

133. The condition was still opposed, but Mr Mackey accepted this form of wording to be preferable, if a condition was to be imposed.

134. Given the nature of the risk which Mr Mackey poses, of reacting with great violence over a triviality, access to video games which may normalise such behaviour, is I am satisfied, not appropriate, particularly for someone who acts with such disinhibition, when affected by substance abuse. In the result, I am satisfied that the condition pressed should be imposed on him.

Orders

135. For the reasons given, I order:

1.   Pursuant to s 5F and s 17(1)(a) of the Crimes (High Risk Offenders) Act that the defendant be subject to an extended supervision order for a period of 3 years from the date of the order and pursuant to s 11 of the Act direct that the defendant comply with the conditions set out in Schedule A.

2.   The reports of Dr Ellis and Dr Roberts be provided to Corrective Services New South Wales, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) or health care practitioner(s).

SCHEDULE A

EXTENDED SUPERVISON ORDER

RYAN MACKEY

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

Monitoring and Reporting

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

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

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

4.   The defendant must attend the police station nearest to his approved accommodation within 3 days of this order and provide a copy of this order.

Electronic Monitoring

5.   The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements

6.   If he is asked to, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

7.   If the defendant wants to change anything in his schedule of movements after he has given it to his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period

8.   The defendant must not deviate from his schedule of movements except in an emergency.

9.   The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Accommodation

10.   The defendant must live at an address approved by his DSO.

11.   The defendant must be at his approved address between 10pm to 6am unless other arrangements are approved by his DSO.

12.   The defendant must allow his DSO or any other person supervising him to visit him at his approved address at anytime.

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

14.   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Restrictions on movements

15.   The defendant must not leave New South Wales without the approval of CSNSW.

16.   The defendant must surrender any passports held by the defendant to the Commissioner.

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

18.   The defendant must not attend any place:

a.   where the defendant suspects or knows alcohol is illegally sold or supplied for consumption (other than where prior permission is given by the DSO to attend that place), or

b.   where the defendant suspects or knows illicit drugs are sold or available for consumption, or

c.   where the defendant suspects or knows prescription drugs are illegally sold or available for consumption other than in accordance with a prescription.

Employment Education & Finance

19.   If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

20.   The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

21.   The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO.

22.   Not pressed

23.   Not pressed

Drugs and Alcohol

24.   The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

25.   The defendant must submit to testing for drugs and alcohol as directed by his DSO.

26.   The defendant must not enter any licensed premises without the approval of his DSO.

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

Associations with others

28.   The defendant must not associate with people that his DSO tells him not to.

29.   The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol.

30.   If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

31.   The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Weapons

32.   The defendant must not carry on his person, at anytime he has left his residence, any knife, syringe, other cutting instrument, baseball bat, bike chain, spanner, or other metal tool, unless with the approval of his Departmental supervising officer.

Access to the Internet & Telecommunications Devices

33.   The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names used by the defendant and the nature and details of the internet connection, as directed.

34.   The defendant must obey any reasonable directions by his DSO about the use of phones, computers and other devices, including any reasonable directions relating to his access to the internet.

35.   The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

Search and Seizure

36.   If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:

a.   for the safety and welfare of residents or staff or persons present at the defendant's approved address;

b.   to monitor the defendant's compliance with this order; or

c.   because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit to:

d.   search and inspection of any part of, or any thing in, the defendant's approved address;

e.   search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;

f.   search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

g.   search and examination of his person.

37.   For the purposes of the above condition:

a.   a search of the defendant means a garment search or a pat-down search.

b.    to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched.

38.   During a search carried out pursuant to condition 36 above, the defendant must allow the DSO to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

a.   the safety of residents or of staff at the defendant's approved address;

b.   the welfare or safety of any member of the public or any other person; or

c.   the defendant's compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

39.   The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

40.   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 36 to 39 above.

Access Violent and Classified Material

41.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to:

a.   material classified or material that would be classified as Refused Classification;

b.    material classified as R18+ (for reason of violence) unless permitted by the DSO; or

c.    other material as directed by the DSO.

Personal Details and Appearance

42.   The defendant must not change his name from Ryan Mackey or use any other name without the approval of his DSO.

43.   The defendant must not change his appearance without the approval of his DSO.

44.   The defendant must let CSNSW photograph him.

45.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Medical Intervention & Disclosure

46.   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

47.   The defendant must attend all psychological and psychiatric assessments and treatment that his DSO tells him to attend.

48.   The defendant must take all medications that are prescribed to him with his consent, by his healthcare practitioners.

49.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

50.   The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

51.   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

SCHEDULE B

FIRST ALTERNATIVE CONDITION

Electronic Monitoring

5.1   The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

5.2   Upon the initial commencement of electronic monitoring under the ESO, if the defendant meets the following conditions for a period of 90 consecutive days, the defendant is no longer required to wear the electronic monitoring equipment:

a.   Satisfactory compliance with condition 5.1 of the ESO;

b.   Satisfactory compliance with conditions 6, 8 and 9 of the ESO;

c.   Compliance with condition 11 of the ESO;

d.   The defendant not testing positive to drug and / or alcohol use;

e.   Compliance with condition 27 of the ESO;

f.   Compliance with conditions 28 and 29 of the ESO;

g.   Compliance with condition 47 of the ESO

5.3   If, upon electronic monitoring being removed, the defendant fails to comply with any of the conditions (b) to (g) above, the DSO or any other person supervising the defendant is at liberty to reapply condition 5.1. In such circumstances, condition 5.2 does not apply.

SECOND ALTERNATIVE CONDITION

Electronic Monitoring

5.   The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him upon one or more of the following conditions not being met:

a.   Satisfactory compliance with conditions 6, 8 and 9 of the ESO;

b.   Compliance with condition 11 of the ESO;

c.   The defendant not testing positive to drug and / or alcohol use;

d.   Compliance with condition 27 of the ESO;

e.   Compliance with conditions 28 and 29 of the ESO;

f.   Compliance with condition 47 of the ESO

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Decision last updated: 17 August 2015