State of New South Wales v McGee

[2019] NSWSC 109

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v McGee [2019] NSWSC 109
Hearing dates:	13 February 2019
Date of orders:	20 February 2019
Decision date:	20 February 2019
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 an extended supervision order is imposed upon the defendant for a period of 2 years from 29 March 2019. 2. The defendant must comply with the conditions annexed to this judgment for the period of the extended supervision order. 3. Access to the Court’s file in this proceeding is restricted. Access is only permitted to a non-party with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. 4. Liberty to apply to restore the matter to the list before me on 48 hours notice to my Associate.
Catchwords:	HIGH RISK VIOLENT OFFENDER – civil law – Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order – index offence of recklessly causing grievous bodily harm - question as to duration of order and appropriate conditions – order made for a period of two years
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5B(a)-(d), 5I Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 Criminal Procedure Act 1985 (NSW), Div 7 of Pt 3, Ch 3
Cases Cited:	Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 State of NSW v Keith Farringdon [2018] NSWSC 874 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Category:	Principal judgment
Parties:	State of New South Wales Charlie McGee
Representation:	Counsel: Ms D New (ib Ms E Fitzgerald) (Plaintiff) Ms S Goodwin (ib Ms R Clayton) (Defendant)   Solicitors: Crown Solicitor’s Office (NSW) (Plaintiff) Legal Aid (NSW) (Defendant)
File Number(s):	2018/00340127
Publication restriction:	None

Judgment

1. HER HONOUR: By Amended Summons filed in Court with leave on 13 February 2019 the State of New South Wales (“the State”) seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) subjecting Charlie McGee to an Extended Supervision Order (“ESO”) for a period of 3 years, and directing him to comply with specified conditions for that period.

2. The application came before Fullerton J on 6 December 2018 at a preliminary stage of the proceedings. Her Honour made orders on that date requiring the defendant to submit to examinations conducted separately by two qualified experts, who were to report to the Court on the results of the examinations: State of New South Wales v McGee (Preliminary) [2019] NSWSC 53. No Interim Supervision Order was or could be made because the defendant was then in custody serving a sentence, with no real possibility that the sentence would expire prior to the final determination of the State’s application.

3. The sentence that the defendant continues to serve is one of 4 years and 3 months imprisonment imposed upon him on 15 November 2011 (as corrected on 18 November 2011) for an offence of recklessly causing grievous bodily harm (“the index offence”). It was one of a number of sentences imposed that day, with the overall sentence being one of 9 years imprisonment.

4. The application for the remaining and final prayers of the Summons was heard on 13 February 2019. Judgement was reserved until today.

5. There is no dispute that the defendant is a person who meets the statutory criteria set out in s 5A, s 5I, and s 5B(a) – (c) of the Act, and nor is there any dispute that the evidence is capable of meeting the test set out in s 5B(d), that is, whether

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

6. The focus of the dispute between the parties was on the conditions to be imposed by the order and its duration. The disputed conditions are proposed conditions 10, 13, 17, and 19.

The Defendant’s Criminal Background

7. On 16 June 2010 the defendant was involved in a violent carjacking, during which he struck the driver of a utility to the head with a hammer, causing a serious fracture of the man’s eye socket and related injuries. The defendant took the car and drove off with it. There followed in quick succession a large number of other offences, including another instance of recklessly causing grievous bodily harm, and another carjacking.

8. After a late plea of guilty the defendant was ultimately sentenced in the District Court by his Honour Judge Sides QC for ten counts on indictment, taking into account seven further offences on two Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Another 4 offences were dealt with as related matters pursuant to Division 7 of Part 3, Chapter 3 of the Criminal Procedure Act 1985 (NSW). The offences on indictment included aggravated carjacking, attempted aggravated carjacking (2 counts), carjacking, and using an offensive weapon with intent to commit an indictable offence (4 counts). Two of the victims of the crimes were children.

9. These crimes arose out of a series of attempts to steal cars from the drivers, with violence or threats of violence, and instances when the defendant drove the car he had stolen at other persons, injuring them or causing property damage. The victim of the second offence of recklessly causing grievous bodily harm (the index offence) was injured when the defendant, having asked for the victim’s help with some purported problem with the stolen utility, accelerated the car and drove at the man, causing broken bones and a torn ligament, with permanent disability. The children who were injured were run down by the defendant as he fled a police pursuit. He did not stop to assist them. Fortunately, their physical injuries were neither major nor permanent. The defendant was arrested after he crashed the second car he had stolen into a ditch, but only after he had lashed out at and struggled against the police.

10. In sentencing the defendant, Sides QC DCJ concluded that the first of the offences of recklessly causing grievous bodily harm, which involved a single blow with a hammer to a vulnerable part of the body, struck without provocation or warning, fell at “the lower end of the range”. The second of the two offences was regarded by his Honour as the most serious offence before the sentencing court and, but for the defendant’s reduced moral culpability due to his mental illness, it would have been assessed as falling into the upper range of gravity. The sentencing judge observed that the defendant had manipulated the victim, a person unknown to him, into a position of vulnerability, and then deliberately accelerated the stolen car, using it to strike the victim, when aware of the possibility that the victim could be injured. The disability occasioned to the victim was permanent.

11. The sentencing judge concluded that each of the defendant’s victims in this course of criminal conduct, whether physically injured or not, would have been terrified, and likely suffered long-term emotional problems.

12. Referring to the defendant’s substance abuse and mental illness, the sentencing judge observed that the likelihood of him posing a danger to the community was very real. His Honour concluded that only abstinence from drugs and compliance with medical treatment could mitigate the risk. Despite that, Sides QC DCJ concluded that the defendant had reasonable prospects of rehabilitation.

13. The overall sentence was one of 9 years imprisonment with a non-parole period of 5 years and 9 months specified. The defendant’s response when sentence was imposed was to tell his Honour, “That’s fucking bullshit [not able to be transcribed] mate”. Although the overall non-parole period expired on 28 December 2015 (special circumstances having been found to exist), the defendant remains incarcerated, serving the additional term. The overall sentence expires on 28 March 2019.

14. These offences are but the most recent – and most serious - in a criminal history that began in 1997, when the defendant was 11 years old, with an entry against him for common assault. That offence, dealt with in the Children’s Court, attracted a sentence of probation for 3 months.

15. There followed in that jurisdiction entries for damaging property, common assault, being carried in a conveyance, and robbery in company, all in 1997; break enter and steal, being carried in a conveyance, and common assault, from 1999; and shoplifting and larceny from the following year. Two counts of break enter and steal and one of damaging property date from the defendant’s 17th year.

16. Once the defendant had attained his 18th year, his offending conduct was dealt with in the adult jurisdictions. He has there been convicted of multiple counts of common assault, break enter and steal, and affray; together with offences of armed robbery, having custody of an offensive implement, possessing prohibited drugs, aggravated break enter and steal, driving whilst disqualified, and larceny, among others.

17. Within the custodial system the defendant has been penalised for various institutional offences, most commonly, fighting.

The Expert Reports

18. In compliance with the orders made last year by Fullerton J the defendant has been recently assessed by two clinical professionals, Dr Kerry Eagle, forensic psychiatrist; and Ms Jenny Howell, psychologist. The reports of each are before the Court, dated, respectively, 30 January 2019 and 5 February 2019.

The Report of Dr Eagle

19. Dr Kerri Eagle conducted a psychiatric assessment of the defendant on 11 January 2019.

20. In making her recommendations, Dr Eagle relied on an estimated 2-hour interview, conducted face-to-face with the defendant at the Metropolitan Reception and Remand Centre. Dr Eagle also had all relevant documentary material.

21. The defendant, at the time of the psychiatric assessment, was 33 years old and had been in custody for 8 and a half years. He was cooperative during the interview, and there was no sign of any delusions, referential ideation or perceptual disturbances, or symptoms of depression. The defendant accepted his past experience of psychotic symptoms and illness but denied ongoing symptoms. He indicated his willingness to comply with necessary medical treatment in the community.

22. Dr Eagle took a history from the defendant. She recorded that his parents separated when he was an infant, with the defendant’s father being “completely absent” from his life after allegedly sexually assaulting him and his brother during their childhood. His stepfather joined the family when the defendant was 5 years old.

23. The defendant regularly attended school, but was bullied “from about year 2”. He began fighting at school, and later began truanting, going instead to Blacktown to shoplift. The defendant also began running away from home at a young age.

24. Dr Eagle’s review of prior background reports revealed that the defendant became the focus of institutional care in 1995 due to “truanting, running away from home, hanging around local stations and mixing with older boys.” In 1997 the defendant was missing for over two weeks. His mother lodged an application for an irretrievable breakdown order, and the defendant was found and placed in an intensive school support program.

25. By the age of 11 years, the defendant became a ward of the State, spending time at Garribee Road hostel. After running away, the defendant specified that he was sent to the Minali Receiving and Assessment Centre (“Minali”) where he claimed to be badly treated; facing violence and sexual abuse. The defendant constantly ran away from Minali as a result.

26. The defendant told Dr Eagle that he started smoking cannabis at 13 years old and then started “‘going off the tracks’” when he was 14 or 15 years old. He used speed and ecstasy over the years. The defendant never undertook rehabilitation in the community to address his substance abuse.

27. Although the defendant missed a great deal of schooling, he obtained his year 10 certificate, before going to Wyndham College in year 11. At Wyndham College, the defendant began socialising with peers, “truanting and smoking cannabis”. He left school and obtained unskilled work. He boarded with his mother.

28. The defendant’s mother was diagnosed with lung cancer when he was in his teens, and she died in 2006 when he was in gaol serving a sentence for robbery.

29. The defendant referred to 3 significant intimate relationships over his youth and adulthood; he has 2 children to the partner with whom he was involved immediately prior to his arrest in 2010. The defendant claimed to have no close friends.

30. The defendant told Dr Eagle that he had worked until just before his arrest in 2010 and, since being in custody, he worked at a bakery for about 5 years and obtained a trade certificate as a baker. His intention is to find a bakery job upon release.

31. The doctor noted the defendant’s clinical history between 1998 and 2011. In 1998 the defendant attended weekly psychological sessions and was prescribed antidepressants for a range of issues. Another psychiatric assessment in the same year found low self-esteem and dysthymia. By 1999 the severity of his condition had moderated, and he was living at home with his family.

32. In 2008 a diagnosis of bipolar disorder was made during a period when the defendant was in custody.

33. In 2010 the defendant started smoking methamphetamines, about two months prior to the June offences. At this time, he was living in a friend’s garage and did not have contact with his children. The defendant explained that he was living an unhealthy lifestyle and was experiencing increased paranoia, convinced that people were “‘trying to set [him] up’” and “‘kill [him]’”.

34. Upon entering custody, the defendant was prescribed Quetiapine, Olanzapine and Miratazapine by his clinician, Dr Michael Allnutt. Dr Allnutt noted that the defendant’s psychosis was consistent with “either an amphetamine induced psychosis or schizophrenia”. Symptoms had largely resolved by 2011, and Dr Allnutt concluded that it was likely that the defendant had an underlying paranoid schizophrenia that was exacerbated by substance abuse.

35. The defendant told Dr Eagle that he was prescribed antipsychotic medications until 2016. Since this time, he has not experienced symptoms that suggest psychosis. He did, however, admit to have generalised paranoia.

36. Relevantly, the defendant did not participate in the Violent Offender Treatment Program (“VOTP”) and the Explore, Question, Understand, Investigate, Practice, Succeed Aggression (“EQUIPS”) programs in custody and had a “negative correctional record”. There were reports that the defendant remained violent and defiant in gaol – stealing milk and possessing two gaol-made weapons [something he disputes]. However, positively, Corrective Services NSW records note that the defendant “demonstrated insight into the lasting impact of his offending behaviour” and had identified his children as victims. His refusal to participate in the VOTP and other programmes was explained by the defendant to Dr Eagle, the doctor recording, “‘[…] programmes will not help him or anyone – if he wants to change he will do this on his own accord’”.

37. Dr Eagle was provided with earlier risk assessments carried out relevant to the defendant. Her assessment was that the defendant has a high loading of historical and risk management factors associated with future violence and a moderate loading of clinical risk factors in his current correctional environment.

38. Dr Eagle concluded that the defendant has a psychotic illness, which has presented in the context of stimulant use, in particular, methamphetamines. She offered the opinion that the defendant suffered from a chronic psychotic illness such as schizophrenia, as opposed to drug-induced psychosis, due to the length of time that the defendant had ongoing psychosis symptoms. She noted his “biological predisposition to schizophrenia”.

39. Dr Eagle also proffered that the defendant’s history, behaviour and presentation is consistent with antisocial personality disorder; failing to conform to social norms, aggression, impulsivity, reckless disregard for the safety of others and consistent irresponsibility. Dr Eagle suggested that the defendant’s behaviour cannot entirely be explained by his mental illness.

40. Referring to the improvement in insight into substance misuse, offending behaviour and mental health demonstrated by the defendant, Dr Eagle suggested that a relapse or deterioration of the defendant’s mental state could occur on reintegration into society, in particular, if he experiences a relapse into substance abuse. She thought that the defendant seemed overly optimistic regarding his ability to successfully reintegrate into the community without adequate support and treatment. Dr Eagle concluded that his reintegration into the community needs to be tested under supervision, “given the de-stabilising factors and barriers that are likely to arise.”

41. The defendant told Dr Eagle that he would welcome being released into supported accommodation and was prepared to adhere to conditions of release. He also stated that he was willing to engage with mental health services, drug and alcohol services, and any behavioural intervention necessary. He intended to avoid Blacktown and contact with antisocial peers. The defendant told Dr Eagle, “‘I want to get on with life’”.

42. Dr Eagle emphasised that professional and personal support will be necessary for the defendant to avoid problems with stress or inability to cope. Dr Eagle also recommended supported accommodation upon release, together with ongoing psychiatric follow up and intensive drug and alcohol rehabilitation support in the community.

43. As to the proposed conditions of the order sought by the State, in combination with adequate support, Dr Eagle regarded them generally as likely to “achieve a reasonable balance between maintaining adequate external restrictions and monitoring with sufficient autonomy”. She did not regard conditions for a curfew and supervised access to financial means as necessary.

44. Dr Eagle recommended a supervised period of at least 12 months of successful integration, followed by “gradual lessening of restrictions” to allow for autonomy and a prosocial lifestyle without constraints. She thought that this would take at least 2 to 3 years, dependent upon the defendant’s attitude to supervision and progress.

The Report of Ms Howell

45. Ms Howell saw the defendant in a semi-structured interview conducted over two and a half hours, on 25 January 2019, at Silverwater Gaol. She had been fully briefed with the material exhibited before Fullerton J, and other relevant documentation. A formal risk assessment tool was used, the Violence Risk Scale 2nd edition (“VRS-2”).

46. Ms Howell considered the defendant to present as polite, respectful, and quietly spoken in her interview with him. She thought he was of average intelligence with good social skills, and appropriate thought content and affect. He was stressed by his present circumstances, but not otherwise disordered.

47. The defendant gave Ms Howell a history of having been born in Sydney, growing up in the Blacktown area. He has older twin brothers, but has very little contact with them. His parents separated before he was born, and a step-father provided a father figure during his childhood years. Since his mother died in 2006 he has had limited contact with his step-father.

48. The defendant completed very little formal schooling. He found school difficult and truanted frequently during his primary school years. He also ran away from home repeatedly. When he was about 10 years of age his mother sought help with his behaviour through the then Department of Community Services, and the defendant was placed in an institution, Minali, where he remained for several years.

45. He did some study at the children’s home, completing Year 10 in Vocational Education.

46. The defendant was returned to his mother’s care at about age 15 or 16, but she could not cope with him and asked him to leave. He was discharged from State care in 1998.

47. He had some unskilled employment for a few years, until about 2004.

48. The defendant told Ms Howell that he had been able to form normal friendships until he was sexually assaulted by a friend of one of his brothers, and later by a staff member at the children’s home. Although he does not really remember it, he believes that his natural father also sexually abused him when he was young.

49. He regards himself as having truly “‘go[ne] downhill’” when a relatively stable relationship he entered in 2006 began to break down, and then ended, in 2010. There are 2 children of this relationship; a boy aged 10 and a girl of 9 years. The defendant has been in custody for much of his children’s lives, and he has been unable to form any meaningful relationship with them. He hopes to see them on release, after an eight year absence.

50. Although the defendant did not know of any diagnosed mental illness, when he was sentenced for the index offence the sentencing judge was satisfied that he had paranoid schizophrenia, aggravated by substance abuse. There is also evidence of a diagnosis of depression in 2007, after his mother’s death in 2006. It seems that the defendant was prescribed an antipsychotic for some years, ending in 2013 or 2014. In custody, he has been prescribed antipsychotic medications often used for the treatment of schizophrenia.

51. The index offence may have occurred in the context of a drug-induced psychosis. The defendant began using drugs as a teenager, initially taking cannabis and ecstasy, and later amphetamine and methylamphetamine. He was using the latter drug when charged with the index and other offences, offences that he told Ms Howell had occurred for “‘no reason’”. The defendant has completed the “Getting Smart” programme in custody, but has declined a referral to the Intensive Drug and Alcohol Therapeutic Programme. He has also refused to undertake the VOTP, prioritising custodial employment and vocational training over therapy.

52. On assessment using the VRS-2 Ms Howell found that the defendant fell within the medium-high risk range for reoffending, although there are noted qualifications to such a result, it being a somewhat blunt tool in the assessment of an individual’s more unique characteristics.

53. Despite the risk assessment, Ms Howell thought that the defendant did not have a “criminal personality”, and did not endorse criminal attitudes or thinking. She regarded him as oriented towards a conventional lifestyle when released to the community, and he has expressed an intention to gain employment and support his children.

54. Whilst Ms Howell noted “some evidence of a recurring theme of physical violence”, including domestic violence, she considered Mr McGee to be insightful about his violent behaviour and capable of emotional control. He was remorseful about past offending and reportedly understood the harm done by him to his victims. She thought violence in the past was likely to be associated with mental illness and drug use.

55. As to the risk for the future Ms Howell observed that, currently, the defendant is stable and insightful. He is medicated for his mental illness, and his substance abuse problems have “diminished considerably”. He is not impulsive, angry, or frustrated. However, risk factors could be elevated should the defendant cease to take appropriate medication, or return to the use of illicit drugs. He has little in the way of community based support, and this may lead to stress. Ms Howell noted that,

56. Risk is dynamic and prone to fluctuation in response to personal and environmental factors. Mr McGee’s risk may continue to abate over time as he ages and maintains a stable community life. Alternatively, his risk may escalate in the event that he is unable to obtain full time employment and/or returns to the use of illicit substances.

57. Because of the dynamic nature of risk, actuarial risk assessment tools cannot predict what an individual will do in the future, as they are “insensitive to change over time”. On that basis Ms Howell considered that the medium-high risk rating returned by reference to the VRS-2 relevant to the defendant should be viewed with caution.

58. Of the conditions of any ESO as sought by the State, Ms Howell regarded those in Parts A, B, and C of the Schedule as potentially problematic, in that they would restrict the defendant to such an extent that positive progress could be impeded. She did not express an opinion as to the optimal duration of any order made.

Evidence in the State’s Case

63. The State read three affidavits from Tram Nguyen dated respectively 6 November 2018, 23 November 2018, and 5 December 2018, which annexed a large volume of documentary evidence, including Ex. TN-1. Additionally, the affidavits of Janelle Farroway of 23 November 2018, Eliza Fitzgerald of 1 February 2019, and Annette Cafferey of 12 February 2019, were read.

Risk Assessment and Risk Management Reports

64. Amongst the material annexed to the first affidavit of Tram Nguyen were a number of reports and affidavits directed to matters of risk assessment and risk management, such material being amongst that which it is mandatory for the Court to consider, pursuant to s 9(3) of the Act.

65. On 31 July 2018 Gillian Tulloh, a psychologist working within the Corrections system, prepared such a report requested from her for the purposes of these proceedings. She interviewed the defendant on three occasions in July 2018 via audio-visual link, a process with which he fully cooperated.

66. Ms Tulloh noted that the defendant presented well and had no apparent cognitive distortions or other issues. He communicated well and demonstrated insight into his mental illness and violent history. He gave Ms Tulloh a history that was broadly consistent with that given to Ms Howell.

67. Mr McGee said that he struggled with school, although he did complete some study after being taken into State care. Whilst in care he experienced multiple placements in foster homes, refuges, and institutions, and was on occasion homeless as a teenager. He was sexually assaulted as a child.

68. The defendant maintained unskilled employment after leaving school, until going into custody. Whilst in prison, he completed an apprenticeship as a baker, and now holds the necessary trade qualifications to work in that capacity. He held employment in custody as a baker for 5 years, but was dismissed in 2018 for stealing a carton of milk. His employment as at July 2018 was as a sweeper.

69. Ms Tulloh observed that the defendant did not undertake all therapeutic courses recommended for him, instead choosing to give priority to gaining vocational qualifications and employment. His work ethic and history is generally positive.

70. The defendant’s history of mental illness and substance abuse was noted.

71. As to risk, Ms Tulloh administered herself, or had access to the results of the administration of three separate actuarial risk assessment tools. The Level of Service Inventory – Revised (“LSI-R”) was administered in 2012, returning a medium-high level of reoffending risk. In 2016 an assessment using the Violence Risk Scale (“VRS”) placed the defendant at high risk of reoffending. The same test administered in July 2018 by Ms Tulloh produced a similar result. The Violence Risk Appraisal Guide – Revised (“VRAG-R”), also administered in July 2018 by Ms Tulloh, suggested a strong statistical likelihood that the defendant would reoffend within a five to twelve year period.

72. Risk factors were identified as distorted thinking around violence, with the defendant justifying its use in some circumstances; his limited capacity for emotional regulation; the possibility that the defendant would use weapons; his mental illness and the possibility that his condition could destabilise; the prospect that the defendant would return to the use of drugs; a lack of support in the community; and the prospect of unstable relationships.

73. Ms Tulloh observed, at [128] of her report,

Mr McGee consistently presents positively and appears to have insight into causes of the index offences. Unfortunately, he has previously demonstrated that he loses that insight rapidly with the onset of mental illness. He tends to externalise blame for his aggressive behaviour and normalises his antisocial / criminal beliefs.

74. She concluded that the defendant would likely benefit from intensive supervision.

75. A risk management report of 3 September 2018 from Erin Kirkwood, endorsed by Janelle Farroway, was also part of the material before the Court. Ms Kirkwood and Ms Farroway are both part of the ESO Team.

76. Ms Kirkwood interviewed the defendant, and reviewed relevant documentation. She noted the earlier assessments that had placed the defendant at high risk of reoffending, and the factors that contributed to the risk. She considered available strategies for the management of those risk factors in the community, and any limitations that applied.

77. In brief, the proposed strategies to manage the risk posed by the defendant, and to facilitate his reintegration into the community, include:

Regular interviews with the defendant, at his home and other places, planned and unannounced;

Field surveillance;

Searches of the defendant’s person, home, or computer and other communications devices;

Contact with third parties involved with the defendant, such as an employer;

Electronic monitoring;

Schedules of movement;

Place and person restrictions;

Referral to necessary services, such as drug rehabilitation and psychiatric services; and

Drug and alcohol testing.

78. All of these strategies have potential limitations, including the defendant’s willingness to cooperate with them, but Ms Kirkwood considered each of these mechanisms necessary to manage risk, subject to ongoing review of their utility.

79. The necessity of the proposed conditions of any ESO is further addressed in her affidavit of 23 November 2018 by Ms Farroway. She there provided evidence as to the nature and purpose of conditions that may attach to an ESO, and the efficacy of such conditions in managing a supervised offender. Much of that information is generic, rather than specific to Mr McGee. That relating to the defendant personally was derived from document review; Ms Farroway has not met the defendant.

80. According to Ms Farroway, all offenders subject to an ESO are case-managed, with a case plan formulated for the management of the individual at the commencement of the order, and regularly reviewed thereafter. Supervised offenders are spoken with personally on a weekly basis by ESO staff, and there are regular “field visits”, both scheduled and unannounced. Support and guidance is provided to the offender, as is assistance in accessing necessary services, such as counselling or drug rehabilitation.

81. From the documents, Ms Farroway deposed that the defendant has been assessed in the past (in 2012 and 2014) with the use of actuarial risk assessment tools, and placed as posing a medium-high risk of general reoffending. She considered the conditions proposed by the State (in the Summons, rather than the Amended Summons) as appropriate in managing that risk.

82. With respect to those proposed conditions that are in dispute Ms Farroway provided information as to the rationale behind them, and the purpose each is intended to serve.

83. Proposed condition 10 imposes a curfew between 9pm and 6am. Ms Farroway said that this condition provides structure and stability for the defendant, and minimises the opportunity for him to involve himself with illicit drugs. Proposed condition 13 imposes restrictions on other persons staying overnight with the defendant at his home, enabling ESO staff to monitor and regulate those with whom the defendant socialises, and minimise contact with antisocial persons.

84. Proposed condition 17 provides a power for those supervising the defendant to require him to undertake employment or training and, Ms Farroway said, is important in allowing staff to direct the defendant to appropriate work or training, and in assisting him to give structure and purpose to his activities.

85. Proposed condition 19 requires the defendant to provide his supervisor with information concerning his financial affairs if directed to do so. In practice, Ms Farroway deposes that this condition would only be used if there was a basis for concern about drug use, a concern that might be suggested or confirmed by an unexplained lack of money.

86. Annette Caffery, the Manager of the ESO Team within Corrective Services NSW, gave some further information about the purpose and implementation of the disputed conditions 10 and 17 of the proposed schedule of conditions. In her affidavit of 12 February 2019 Ms Caffery deposed that the ability to impose a curfew on a supervised offender was important, as it gave structure and stability to persons such as the defendant who have spent many years in an institutional environment. It is also useful in regulating access to drugs and alcohol.

87. Ms Caffery noted that the curfew condition (condition 10) is approached by supervising staff with flexibility, so that positive activities, such as employment, family gatherings, or counselling meetings, were not precluded. “Approval beyond curfew” can always be given in appropriate circumstances.

88. Condition 17, the employment condition, is also implemented flexibly, and is intended to permit supervising staff to promote the defendant’s engagement in positive vocational activities, to give purpose and structure to his life. The condition is not used to compel supervised offenders to undertake training or work that is not appropriate to the individual’s goals and circumstances.

Other Corrections Reports

89. A volume of material from the Department of Corrective Services or its staff was before the Court, including reports to the Parole Authority. The most recent of these are two reports of 18 September 2018, prepared for a parole hearing on 2 November 2018.

90. In her report, Ebony Becquet gave the defendant’s security classification as “B medium”. She noted that the defendant had regular telephone contact with his children, who reside interstate. The defendant is said to have “developing insight” into his offending past, and understood the link between drug use and aggressive conduct. He also showed insight into the impact of his criminal conduct, both on those directly involved as victims of it, and on others, such as his children.

91. The defendant’s behaviour in custody was reported as problematic, with a number of institutional offences laid against him, and negative entries in his case notes for things such as aggression and theft. He had, however, maintained employment and was compliant with a prescribed medication regime. The defendant’s refusal to undertake the VOTP was noted, as was the lack of support and accommodation available to him on release. He was assessed as requiring a medium – high level of intervention from Corrections on release.

92. In his short report annexed to that of Ms Becquet, Grant Connelly opined that the defendant posed an unacceptable risk to community safety if released at that time, due to his failure to undertake recommended therapy and continued offending in custody, and having regard to the lack of any suitable accommodation for him in the community.

93. Parole was subsequently refused to the defendant.

94. Parole reports over time reveal that the defendant, although unwilling to undertake therapeutic programmes suggested to him, generally did very well in vocational courses and in employment, prioritising work-related activity as something more likely to be of real benefit to him in establishing a law abiding life in the community, than group therapy in gaol.

95. The denial of parole over the years has been linked to lack of suitable accommodation for the defendant to go to on release from custody, and his refusal to undertake the VOTP and other identified programmes.

The Defendant’s Case

96. The defendant read his own affidavit of 8 February 2019, together with the affidavit of Ruth Layton of 28 November 2018.

97. In his affidavit, Mr McGee acknowledged the seriousness of the offences he committed in 2010, referring to them with regret. He sought to place the offences in context, by noting that he was mentally ill at the time.

98. He said that he was distressed by the prospect of an ESO impeding his reintegration to the community, and stated,

99. I am committed to living a law abiding life in the future in the community, to seeing a psychologist, and a psychiatrist, to taking any prescribed medications, and to engaging in programs. I am absolutely committed to proving that I will never again break the law and that I am no longer a risk to the community.

100. The defendant deposed that he had reduced his use of prescribed methadone over time and, under medical supervision in custody, was able to cease using it at all. His wish upon release is not to use methadone, as he fears the return to associating with drug users that attendance at a methadone clinic would necessitate. He explained a gaol infraction for possessing drugs as an offence that he acknowledged but did not in fact commit, the drugs not being his. He explained the prison offences of fighting recorded against him as an unfortunate but unavoidable part of life in a gaol. He disputes other matters recorded in his Corrective Services NSW file, such as that he was dismissed from his employment as a baker for stealing, or possessing improvised weapons.

101. As to the recorded refusals to undertake the VOTP, the defendant said that he had prioritised employment over therapy, but that there was a further reason for his reluctance to undertake the course, and finish another, being that both involved group therapy in which the Fact Sheet relevant to the 2010 offences would be made available to all members of the group. In that two of the offences involved injuries occasioned to children, the defendant explained that the release of this information would place his life in danger within the prison system.

102. The defendant deposed that he has a good relationship with the mother of his children and, with her support, it is his intention to build a relationship with his children upon release. The defendant has a modest sum of money standing to his credit, and intends to use those funds to secure accommodation and furnish it, and to buy a car and obtain his driver’s licence. He believes that his trade qualifications as a baker will stand him in good stead in making a positive future for himself, and expressed his determination to do so.

Consideration

103. In her affidavit, Ms Layton deposed that she had made inquiries with the defendant’s parole officer, who confirmed that, as at early December 2018, accommodation was available for Mr McGee at an appropriate service in Newcastle. Although the service, managed by the Samaritans, is now not an “approved service” for the purposes of offenders on parole, it is likely to be able to accommodate Mr McGee upon his release. The service offers a range of measures and supports to assist men released from custody to establish themselves in the community.

The Law

104. The Act and its proper application is now the subject of a great deal of jurisprudence. It is not intended to add to it here. The principles can be found in (amongst other decisions of the Court of Appeal and of this Court) State of New South Wales v Green (Final) [2013] NSWSC 1003; State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280; Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57; State of NSW v Keith Farringdon [2018] NSWSC 874; and State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754.

104. The defendant does not dispute that the evidence before the Court supports a state of satisfaction to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision under the order the State seeks. The concession is a significant one.

105. Although the defendant has a long history of violent offending stretching back to only just above the age of criminal responsibility, it is for the most part a history of the commission of summary offences, or offences capable of being dealt with summarily. The risk that he might return to the commission of serious criminal offences, as defined by s 5A of the Act, rather than crime more generally, is not necessarily immediately apparent. The Court is, however, entitled to have regard to the defendant’s concession when considering whether the test at s 5B is made out.

106. On balance, the concession is properly made. Whilst the defendant has some factors in his favour, notably his good work record in custody and his persistence and hard work in securing a trade qualification, there are, as identified in the evidence, serious risks that attach to his unsupervised liberty. Those risks arise from his abiding (if currently stable) mental illness, and his long years of substance abuse. In the community, with limited support and many challenges to meet, there is a significant risk that the defendant would cease to take prescribed medication, turn to illicit drug use, and spiral down into the sort of out of control conduct displayed by him in 2010. The community would thereby be endangered.

107. Even were he to be released immediately, with a month or so of supervision from the parole authority, the risk would remain. More is required to protect others, and to assist the defendant to achieve the positive life he desires.

108. I am satisfied that it is proper to make the order sought by the State.

109. The real questions are the conditions of the order, and its duration. The State seeks an order for 3 years with the conditions it proposes in the Schedule to the Amended Summons; Mr McGee argues that a period of about 18 months is appropriate, with fewer conditions than the State asks be imposed.

110. As to duration, an order for two years (bearing in mind the capacity to seek an extension if necessary) is in my view sufficient to achieve the objects of the Act. I am satisfied that the defendant does have some insight into and understanding of the importance of continuing to treat his mental illness, and remain abstinent from illicit drug use. It is after all, the combined impact of untreated mental illness and drug abuse that has led to the defendant’s lengthy incarceration, and his separation from his two children. I accept that Mr McGee appreciates that, and is motivated to address the issues on an ongoing basis. As his counsel submitted, the significant concession made by him that the Court could make an ESO for his supervision in the community is a clear indicator of the insight and understanding he has achieved.

111. Because of the vocational skills he worked hard to acquire in custody, he has a better chance than many of living a positive and worthwhile life. He has the skills to gain meaningful employment and the structured life and income that go with regular work. His skills will allow him to support his children.

112. Dr Eagle suggested a 2 to 3 year order, and I am persuaded that the duration of the order should be at the lesser end of that range.

113. As to the disputed conditions, 10, 13, 17, and 19, when viewed in the overall context of the other conditions sought by the State, informed by the evidence before the Court, I am not persuaded that all are necessary.

114. Condition 10 is likely to be of benefit in meeting the objects of the Act, at least in the short term. The defendant has been incarcerated for many years and, in those circumstances, there is much to be said for a period of transition from the rigid and unchanging structure of a day spent in gaol, to the heady liberty of setting one’s own hours entirely. A short period when the defendant was required to meet fixed hours would be of benefit in making that transition, and in helping him to avoid the temptation of late nights and drugs easily acquired by a man with some modest means to spend. A schedule of movements could, as Dr Eagle observed, perform this function, but a condition allowing for a curfew provides greater flexibility in administering the order. The fact that the condition is available does not require the defendant’s supervisors to impose it beyond what is necessary to properly monitor him. It goes without saying that no curfew should be allowed to impede the defendant’s access to legitimate employment.

115. Condition 13 would limit overnight visits of others to the defendant’s home. He seeks its amendment, to provide greater clarity. The amendment sought is not unreasonable, and would not adversely impact upon the efficacy of the condition.

116. Condition 17, like condition 10, is one which, sensibly administered, has a role to play in the protection of the community, by providing a basis upon which the defendant can be encouraged to undertake work or training, if that encouragement is necessary. There is every reason to anticipate that it is unlikely to be necessary, since the evidence is that the defendant has a good work ethic, and both the skills and desire to secure employment as soon as he can. Having regard to the evidence of Ms Caffery, I accept that the condition would not be used to compel activity antithetical to the defendant, but only if he fell short of his own ambitions to obtain gainful employment. In the circumstances of this case, the defendant is unlikely to be unemployed beyond the short term unless he relapses into illness and drug use. Should that occur, the condition would be of great utility.

117. I am unable to accept that there is any real necessity to impose Condition 19, which allows for the inspection of the defendant’s financial affairs. It is said to be directed to detecting drug use but, if so, it is a very blunt tool. Other proposed conditions, including drug testing and searches of person, premises, and mobile telephone, provide a much better means of discovering a return by the defendant to the drug scene.

orders

119. The Court makes these orders:

1. Pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 an extended supervision order is imposed upon the defendant for a period of 2 years from 29 March 2019.

2. The defendant must comply with the conditions annexed to this judgment for the period of the extended supervision order.

3. Access to the Court’s file in this proceeding is restricted. Access is only permitted to a non-party with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

4. Liberty to apply to restore the matter to the list before me on 48 hours notice to my Associate.

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SCHEDULE OF CONDITIONS OF SUPERVISION

CHARLIE MCGEE

Part A: Reporting and monitoring obligations

Monitoring and reporting

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

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

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

Electronic monitoring

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

Schedule of movements

5.   If directed, 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.

6.   If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

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

8.   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.

Part B: Accommodation

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

10.   The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.

11.   The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

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

13.   The defendant must not permit any person to remain past midnight at his approved address or room, without the prior approval of his DSO.

Part C: Place and travel restrictions

14.   The defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services NSW.

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

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

Part D: Employment, finance and education

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

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

Part E: Drugs and alcohol

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

20.   The defendant must not possess or use alcohol without prior approval of his DSO.

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

22.   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.

Part F: Non-association

Associations with others (not children)

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

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

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

26.   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.

Part H: Weapons

27.   The defendant must not carry on his person or otherwise possess at any time he has left his residence, or use at any time, any of the following:

a.   any item made or adapted for use for causing injury to a person; or

b.   any item intended, by the person having possession of the item, to be used to injure or menace a person or to damage property, including any knife, hammer, or other cutting instrument.

28. Condition 29 applies to the defendant whether or not the defendant is granted a permit in respect of the item under the Firearms Act 1996 or Weapons Prohibition Act 1998.

Part I: Access to the internet and other electronic communication

29.   The defendant must give his DSO a list of all devices, services and applications 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 and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.

30.   The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.

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

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

33.   The defendant must provide a list of communication devices and data storage devices in the defendant’s possession and advise the DSO of any change to the inventory immediately.

Part J: Search and seizure

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

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

2. to monitor the defendant’s compliance with this order; or

3. 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:

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

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

6. 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

7. search and examination of his person.

35.   For the purposes of the above condition:

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

9. 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.

36.   During a search carried out pursuant to condition 34 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

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

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

12. 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.

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

38.   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 34 to 37 above.

Part L: Personal details and appearance

39.   The defendant must not change his name from “Charlie McGee” or use any other name without the approval of his DSO.

40.   The defendant must not use any alias, log-in name, or a name other than “Charlie McGee” or use any email address other than those known to the DSO under condition 29 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

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

42.   The defendant must let CSNSW photograph him.

43.   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.

Part M: Medical intervention and treatment

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

45.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

46.   The defendant must take all medications that are prescribed to him by his healthcare practitioners.

47.   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.

48.   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, where considered to be relevant to his ongoing risk management.

49.   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, where considered to be relevant to his ongoing risk management.

Decision last updated: 20 February 2019