State of New South Wales v McGee (Final)

[2023] NSWSC 546

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v McGee (Final) [2023] NSWSC 546

Hearing dates:

1 March 2023

Decision date:

24 May 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of 2 years from the date of this order;

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule; and

(3)  Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified.

Catchwords:

HIGH RISK OFFENDER – Final hearing – Violent offender – Application for extended supervision order – Whether defendant poses unacceptable risk of committing serious offence – Disputed conditions of supervision – Whether qualified drug abstinence and information-sharing conditions appropriate

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5A, 5B, 5D, 6, 7, 9, 10, 11

Crimes Act 1900 (NSW)

Cases Cited:

State of New South Wales v McGee [2019] NSWSC 109

State of New South Wales v McGee (Preliminary) [2022] NSWSC 1717

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Charlie McGee (Defendant)

Representation:

Counsel:
E Jones (Plaintiff)
J Wilcox (Defendant)

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

File Number(s):

2022/302777

JUDGMENT

1. By a summons filed on 11 October 2022, the State of New South Wales (the plaintiff) sought final orders pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant, Charlie McGee, be subject to an extended supervision order (an ESO) for a period of 2 years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions set out in a schedule to the summons.

2. The defendant opposes the making of an ESO and, in the event that one is made, some of its proposed conditions. The plaintiff sought a further order forbidding access to the court file by a non-party without leave of a judge of the Court and, if an application for access is made, requiring prior notification to the parties to allow them an opportunity to be heard. That order is not opposed and will be made.

The procedural history of the application

3. The defendant was subject to an ESO for a period of 2 years that commenced on 29 March 2019, pursuant to orders made by Wilson J: State of New South Wales v McGee [2019] NSWSC 109. He was returned to custody on three occasions for breaching conditions of that ESO. The ESO was suspended each time, pursuant to s 10(1A)(b) and (2) of the Act. It ultimately expired on 28 December 2022.

4. On 12 December 2022, Button J made the preliminary orders that were sought in the summons, which included an interim supervision order (ISO) for a period of 28 days commencing on 28 December 2022: State of New South Wales v McGee (Preliminary) [2022] NSWSC 1717. The ISO has been subsequently renewed for periods of 28 days. The most recent is set to expire on 24 May 2023.

5. On 17 January 2023, the defendant was returned to custody, bail refused, for breaching the ISO. He was sentenced in the Local Court to a term of imprisonment for 10 months, with a non-parole period of 5 months. The defendant lodged a severity appeal in the District Court. That appeal was allowed on 18 April 2023 and the defendant was re-sentenced to an intensive correction order (ICO) for 6 months and 2 weeks, with the standard conditions, which will expire on 31 October 2023.

The defendant’s background

Criminal history

6. The defendant is 37 years old. The first entries on his record are in the Children’s Court, from the age of 11. They include charges of violence; common assault and assault, beat and ill-treat arising from separate incidents when he was 11 years old. His first serious offence as an adult was armed robbery, committed when he was aged 18 years and 1 months. He was sentenced in the District Court, receiving 3 years periodic detention and supervision, to “undertake drug/alcohol and other programs as deemed necessary”. The sentence of periodic detention was revoked in June 2005. A week after that offence, he committed an assault and an offence of “using violence to cause fear”. He received bonds with a similar condition of supervision.

7. His first sentence of imprisonment was in 2005, when aged 20, for a period of 17 months for break and enter. A month later, he received a sentence of 2 months’ imprisonment for possessing a prohibited drug. In 2008 he was convicted of an offence committed in 2004 when he was aged 18 of aggravated break and enter with intent to commit a serious indictable offence, for which he received a suspended sentence of 12 months’ imprisonment. Further sentences of imprisonment followed. I note that his early offending included multiple counts of driving a vehicle never having been licensed.

The index offences

8. On 16 June 2010, when the defendant was 26 years old, he committed the index offences. That afternoon he stole a hammer from a vehicle parked in the driveway of a house in suburban Sydney. He approached the driver of another vehicle, a utility, that was parked nearby. He distracted the driver and, while he was looking in his console, struck him to his face with the hammer, causing a significant laceration and a complex fracture of an eye socket. He dragged the driver from his utility and drove away in it. Shortly afterwards, he drove the utility at a vehicle (the first vehicle) in an attempt to force the driver to allow him to steal it. He rammed the other vehicle twice, confronted the driver on foot and threatened to kill him if he did not hand over his keys. When the driver returned to his vehicle and locked the door, the defendant rammed it with the utility, resulting in significant damage, and drove away.

9. The defendant followed another vehicle (the second vehicle), drove alongside it and demanded that the driver stop. When the driver complied and stopped the car, the defendant approached him and demanded his keys, which the driver refused to do. The driver got out, and the defendant rammed the second vehicle twice, causing a cut to the driver’s hand as he was standing alongside it. The defendant drove off and hit a third vehicle. He alighted from the utility and attempted unsuccessfully to remove the keys of the other vehicle while the driver was seated in it. The defendant got back in the utility and drove off.

10. The sentencing judge, Sides QC DCJ, described in his remarks on sentence what occurred next:

“[The defendant] stopped [the utility] and called the victim Morton over to his vehicle. At the time, this victim was sitting in his own car. [The defendant] told the victim that there was some damage to the utility and asked him to have a look at it because he thought there was something dragging underneath it. The man walked towards the utility. As he was looking at the utility, [the defendant] said: ‘you are going to have to bend down. I think it is further under the car.’ When the victim was looking under the stolen utility, [the defendant] accelerated it and hit the victim. He then sped from the scene. An ambulance subsequently attended and conveyed the victim to hospital. He was found to have a fracture to his fibula and to his femur … He also suffered a partial tear of his anterior crucial ligament.”

11. At the time, the defendant was disqualified from driving. He drove to a house where the next victim was about to leave in his own vehicle. The defendant approached him and asked him to stop. He reached into his car and attempted to take the keys, but the victim prevented him from doing so, telling him to leave. The defendant briefly got into the rear of the car, then left it, returned to the utility and drove to another suburb.

12. He pulled up alongside the next victim, a man who was standing by the curb. The defendant asked to borrow his phone to make a Triple Zero call. The victim handed over his phone and the defendant drove off with it. The victim jumped onto the back of the utility. The defendant unsuccessfully attempted to throw him from the vehicle by various driving manoeuvres, then threw the phone onto the footpath. The victim got off the utility and the defendant sped away.

13. The defendant then drove into a McDonald’s car park in a different suburb, as three young women were getting into a vehicle. The defendant approached the woman who had the car keys, grabbed her hand and attempted to get the keys. He threatened to kill her if she did not hand them over. She released her grip on the keys, the defendant took them and drove away.

14. The offender drove to a different suburb and approached a woman and asked her for her mobile phone, saying he wanted to call Triple Zero. She refused and he became aggressive, demanding that she get into the vehicle that he was driving. She refused and he drove away laughing.

15. The defendant was sighted by police who followed him, activating their sirens and lights. The next victims were two girls aged 14 and 7, who were crossing a street on their way home from school. The defendant drove towards them, hit them and did not stop. The 7-year-old sustained soft tissue damage to an arm but no fractures. The 14-year-old sustained an abrasion to her lower back and buttocks. The defendant ultimately crashed the stolen vehicle and resisted arrest by thrashing around.

16. Sides QC DCJ was satisfied that at the time of the offending behaviour, the defendant was suffering from paranoid schizophrenia aggravated by substance abuse which significantly reduced his moral culpability because of the impact of his poor mental health “on his judgement and capacity for rational decision making, causing him to misperceive his environment”. His Honour found that the defendant deliberately drove at the two schoolchildren, although “the act of driving at them was probably spontaneous”.

17. As to the defendant’s prospects of rehabilitation, the sentencing judge stated:

“There is no evidence about how he will go, once released from custody, in terms of abstinence and adherence to prescribed medication. Unless he is abstinent and adheres to the prescribed medication the likelihood of him posing a danger to the community is a very real one. In all the circumstances the court is satisfied that his prospects of rehabilitation and not re-offending are reasonable.”

18. The sentencing judge noted that the defendant’s poor mental health reduced the need for general deterrence and retribution to be reflected in the sentence. Separate sentences were imposed for each of ten offences arising from the incident, yielding a total sentence of 9 years’ imprisonment which expired 28 March 2019 and with a non-parole period of 5 years and 9 months, that expired on 28 December 2015. The two most serious offences were aggravated carjacking, the circumstance of aggravation being armed with a hammer, which had a maximum penalty of 14 years. Four offences of using a weapon with intent to assault had a maximum penalty of 12 years. Two counts of carjacking had a maximum penalty of 10 years, and two counts of recklessly causing grievous bodily harm had a maximum penalty of 10 years as well. Seven other offences were taken into account on a Form 1 schedule.

Post-index offence offending

19. The defendant served the total sentence for the index offences in custody. He has multiple entries on his prison discipline record between August 2005 and January 2022, notably for fighting and intimidation.

20. As to the defendant’s post-index offence offending, on 14 May 2019 he was arrested and charged with an offence of failing to comply with the conditions of his ESO that commenced on 29 March 2019, namely, contravening a direction of the Departmental Supervising Officer (DSO) to not associate with any person with a criminal history. According to the Police Facts, in April 2019, the defendant was observed to be associating with a person who had a criminal history of violence, drug and traffic offences and given a written warning. On 1 May 2019, the defendant was observed to be associating with another person with a criminal history of firearm and drug offences. The defendant was again issued with a written warning. On 10 May 2019, police observed the defendant to be speaking to a person with whom he had shared a cell in prison. On 22 August 2019, he received a sentence of imprisonment for 12 months, with a non-parole period of 4 months.

21. On 6 March 2020, the defendant was arrested and charged with a further breach of his ESO conditions, namely, using prohibited drugs. Earlier that day, he tested positive for the presence of cocaine. He received a sentence of 10 months’ imprisonment with a non-parole period of five months, commencing on the day of his arrest.

22. On 15 April 2021, the defendant was arrested and charged with using an offensive weapon to prevent his lawful detention and a further breach of his ESO conditions (the siege). According to the Police Facts, on that date police officers and officers of community corrections and the extended supervision team attended upon the defendant to search his residence. The defendant’s partner was present, which was contrary to a direction that he had been given by his DSO. The defendant left his unit and ran into a neighbour’s unit. He stood on the patio of that unit, holding a knife in each hand. He looked at one of the police officers and threatened to stab him. The officer drew his pistol and directed the defendant to drop the knives. He was swinging the knives erratically, while the neighbour was standing alongside him. The defendant said “I’m not going back to jail”. The defendant was directed to come out of the unit, showing his hands. He appeared, holding a machete in a sheath. He pulled it out of the sheath and started walking towards a detective, saying he was going to “slice” him. After taking about six steps, the defendant retreated to the unit complex, whereupon the incident became a siege. The tactical operations unit was deployed, along with other specialist police units. At around 10pm that evening, which was nine and a half hours after the siege began, tactical officers accessed the residence and arrested the defendant.

23. On 11 October 2021, the defendant received an aggregate sentence of imprisonment of 20 months dating from the date of his arrest and concluding on 14 December 2022, with a non-parole period of 12 months, to expire on 14 April 2022.

24. Electronic monitoring of the defendant ceased on about 28 December 2022, when the ISO took effect, since electronic monitoring was not one of its conditions. As noted, on 17 January 2023, the defendant was returned to custody, bail refused, for breaching the ISO. He was charged with one count of failing to comply with an ISO, following positive results for amphetamine and methylamphetamine for drug tests that were performed on the defendant on 5 and 8 January 2023. On 8 March 2023, the defendant was convicted at Fairfield Local Court and sentenced to 10 months’ imprisonment, with a non-parole period of 5 months. The defendant’s appeal against the severity of that sentence was allowed by Gallagher DCJ sitting at the Parramatta District Court. He was re-sentenced to an ICO for 6 months and 2 weeks to date from 18 April 2023 to 31 October 2023

The defendant’s personal history

25. The defendant’s background has been included in a report of Dr Carollyne Youssef, forensic and clinical psychologist, dated 31 January 2023, that was prepared for the final hearing in this matter pursuant to the orders made by Button J. Its recounting of the defendant’s background is to the following effect.

26. The defendant is the youngest of three children, his siblings being twin brothers. His parents separated before he was born. When he was about five or six years old, his mother remarried.

27. In her report, Dr Youssef noted:

“File information reflected that [the defendant] attended sexual assault counselling in 1996 following an allegation that he was sexually assaulted by his biological father several years prior – [the defendant] did not mention this in interview.”

28. From about the age of nine or 10, the defendant exhibited behavioural issues. He would run away from home and associate with older children and homeless people. This behaviour coincided with an attempt by a young adult male, who was a friend of his mothers and who was often around the home, to molest him. His mother found it increasingly difficult to keep the defendant at home and supervise him. The defendant told Dr Youssef that he started to skip school by year four and did not attend school for three years although he eventually completed his year 10 certificate.

29. On 27 June 1997, when he was 11 years old, the defendant was made a ward of the State. He reported being sexually assaulted by a male staff worker on four occasions while in a juvenile justice residential facility. Another traumatic incident in the same facility was an occasion when a woman who was armed with knives entered the premises and chased some of the residents, including him, until they were able to barricade themselves in a room.

30. When eventually the defendant returned home, he continued to abscond and was sent back to the juvenile institution. He was subsequently reintroduced to his mother’s home over a six-month period. When he was aged 16, he and his brothers moved out of home together, following conflict with their stepfather. He remained living with them until he met his first partner. The defendant reports having occasional contact with his brothers, although they are not close.

31. The defendant moved in with his first partner and her mother in 1997, when he would have been either 21 or 22 years old. He remained living with her until shortly before he committed the index offences. They have two children, presently aged 12 and 14 years old. Dr Youssef noted New South Wales police reports to the effect that there were numerous incidents of domestic violence between the defendant and his first partner. The defendant told Dr Youssef that he discovered his first partner was unfaithful with one of his friends and lay in wait for him with the intention of bashing him with a baseball bat, however that never eventuated. His first partner currently lives interstate with their children. The defendant’s mother died in 2006.

32. The defendant has been in a relationship with his second partner for the past three years. They currently cohabit. The defendant told Dr Youssef that they want to start a family. He denied any issues in the relationship and any domestic violence. However, Dr Youssef noted reports that the relationship has been “on and off” and “marred by conflict”. In a Sentencing Assessment Report prepared in August 2021 the relationship was described as “volatile” by supervising staff who held concerns as to substance abuse by the defendant’s partner and possible domestic violence within the relationship which led to the contact restrictions that were breached by the defendant in April 2021.

33. The defendant had short term positions of employment in his late teens and early adulthood. He has had several jobs since being on the ESO, the longest lasting eight months before he quit because he thought his boss was trying “to rip him off”. Dr Youssef was of the view that his motivation for a stable job is unclear and he appears to struggle to keep a job long-term.

34. The defendant told Dr Youssef that he is currently on the Suboxone program. He was on methadone for most of his sentence and on his release he quickly relapsed and started taking buprenorphine. Dr Youssef noted that in December 2020 there were concerns that the defendant was diverting his buprenorphine.

28. The defendant told Dr Youssef that he started smoking cigarettes when he was nine or 10 years old. He inhaled butane for a couple of months when he was 11 years old. He commenced smoking cannabis when he was 15 years old and continued to do so daily until he committed the index offences. He started using amphetamines when he was 17 or 18 years old and methylamphetamine in 2009. He said he was taking it daily in the lead up to the index offences. He admits to having tried ecstasy, heroin and alcohol, but they were “never a habit”. He said that he financed his prohibited drug use by crime including theft, break and enters, robberies and small time dealing. Dr Youssef noted that the defendant continues to struggle with substance use on the ESO.

29. At the time of Dr Youssef’s interview of the defendant, he was not involved in any structured activities or groups, saying that he wanted to focus on getting employment.

Relevant provisions of the Act

37. Before an ESO may be considered, certain preconditions regarding the timing of the application and the defendant’s custodial status, set out in s 5B(a)-(c) of the Act, must be satisfied. Counsel for both parties agreed at the hearing of the application that those threshold criteria are satisfied. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied.

38. Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that: (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. Consequent upon other orders made by Button J, in addition to Dr Youssef’s report, a report has been furnished by, Dr Calum Smith, consultant forensic psychiatrist, dated 1 February 2023.

39. Statutory provisions as to the principles applicable to the Court’s exercise of its discretion in determining whether to make an ESO or dismiss the application are set out in ss 3, 5B(d), 5D and 9(2) of the Act, which provide as follows:

“3   Objects of Act

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

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

…

5B   Making of extended supervision orders—unacceptable risk

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

…

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

…

5D   Determination of risk

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

…

9   Determination of application for extended supervision order

…

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

…”

40. I note that the term “serious offence” that appears in s 5B(d) is defined in s 4 of the Act to include “a serious violence offence”, which is defined in s 5A(1) as follows:

“5A Definition of ‘serious violence offence’

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

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

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

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

41. The meaning of a “serious indictable offence” is defined at s 5A(3) to include the definition of that term in the Crimes Act 1900 (NSW), which is “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. Section 5A(2A) provides an explanation of what is meant by the terms in s 5A(1)(a).

42. I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites in s 5B are satisfied.

43. In determining whether to make an ESO, the Court must have regard to certain material and considerations which are set out at s 9(3) of the Act, in addition to any other matter that the Court considers is relevant.

Section 9(3) of the Act

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

(a)   (Repealed)

(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 serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)   the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

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

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

(e1)   options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)   the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)   without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

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

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

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

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

(4)   In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

Section 9(3) of the Act: forensic reports and evidence

44. The reports that were prepared pursuant to s 7(4) of the Act bear on all of the matters identified in s 9(3) that are relevant to this application except for sub-s (h1), being matters that I referred to earlier in this judgment.

Report of Dr Youssef, forensic psychologist

45. Dr Youssef noted that the defendant did not feel that his breaches of the ESO were warranted, particularly the breach in 2019, and that he did not appear to have insight into them. In relation to the 2021 breaches, the defendant said: “I don’t know what came over me, I just panicked … I didn’t want to go back to prison”. In relation to the defendant’s most recent breach, Dr Youssef stated that case notes reveal that in the weeks leading up to his arrest on 17 January 2023, there was unusual behaviour, including marked delays in opening the door each time his DSO conducted a home visit. His behaviour was noted to be somewhat erratic, anxious, and his speech was pressured and disjointed.

46. As to the defendant’s engagement in programs, Dr Youssef referred to a Risk Assessment Report by Patrycja Luketic, an Acting Senior Psychologist in the Serious Offenders Assessment Unit of Corrective Services, dated 18 July 2022:

“90.   Ms Luketic summarised the programs [the defendant] engaged in;

‘In 2013, [the defendant] participated in the Managing Emotions and Getting SMART program ... aimed at improving readiness for further program participation and engagement. [The defendant] completed Managing Emotions on 26 March 2013 with good reports ... [The defendant] ‘actively participated’ in the program and was able to easily comprehend ‘quite complex concepts, such as the link between thoughts-feelings and actions. He demonstrated the ability to challenge distorted, unhelpful thinking that negatively impact (sic) on his behaviour’ [The defendant] completed the Getting SMART program on 18 March 2013. The Getting SMART program is an addictions focused relapse prevention program. Feedback from his participation in the program indicates that overall he engaged well. It was noted that while he ‘Initially demonstrated a [tendency] to glorify criminal behaviour. This was challenged and by later sessions he identified consequences of his actions for himself and others’ [The defendant] also met the criteria for participation in the Intensive Drug and Alcohol Treatment Program (IDATP). A case note on 24 October 2014 indicates that [the defendant] declined to participate in the referral and assessment for IDATP. [The defendant] agreed to participate in the EQUIPS Aggression program in 2015 (case note, 31/12/2015). He was allocated to begin the program in May 2016 but was withdrawn due to non-participation’ (Luketic, 18/07/2022).

91.   Currently, [the defendant] reported seeing CSNSW psychologist, Ms Cherice Cieplucha, and said he has been seeing her since 2020. He is seeing her every three weeks and has been since October 2022. He expressed that even though he attends, he notes she works for CSNSW and therefore, what he ‘can say is limited’. Conversely, Ms Cieplucha is of the opinion that [the defendant] ‘engages well’ in sessions (Cieplucha, 28/06/2022). [The defendant] reported that he completed AOD counselling in ten sessions and admitted it was not helpful however he completed it as he was asked to by the ESO team. He said he is suspicious about what he says to professionals as he believes that everything will be relayed to CSNSW and therefore the risk of breach is high. He said if he were able to engage with a community psychologist who did not divulge everything to CSNSW then he would be inclined to engage more meaningfully. [The defendant] expressed concerns that CSNSW want access to all file information from medical and other treating professionals; he feels that if he did need help, he would not be able to ask for it as he would likely be punished for it. [The defendant] however said he does not feel that he requires any further intervention at present as he feels he has things ‘under control’.”

47. Dr Youssef was of the opinion that the defendant did not exhibit symptoms indicative of schizophrenia or a psychotic disorder, and questioned whether the diagnosis of schizophrenia at the time of the index offending was in fact a drug-induced psychosis. She considered that the defendant met the criteria for an Antisocial Personality Disorder and a Stimulant Use Disorder (severe, methamphetamine).

48. Dr Youssef noted that, in terms of the defendant’s history of community supervision, he appeared to be progressing better than he had on previous occasions, until his breach in January 2023.

49. As to the defendant’s level of risk of committing a serious offence of violence, Dr Youssef administered certain psychological assessment instruments. One was the Violence Risk Appraisal Guide – Revised (VRAG-R), which is intended to predict the probability of violent recidivism among correctional and forensic psychiatric populations. Dr Youssef stated that it has “moderate predictive accuracy”. It consists of 12 items and produces estimates of future risk based on several risk factors present in any one individual. The VRAG-R test results were that the defendant’s:

“… category of risk of violent recidivism is the ninth Risk Bin or the highest of nine Risk Bin categories. Among offenders in development and validation studies, 76 percent of those in [the defendant’s] category are expected to meet the criteria for violent recidivism within 5 years and 87 percent within 12 years.”

50. Another instrument administered by Dr Youssef was the Historical Clinical Risk Management-20 Version 3 (HCR-20 v3), which she described as a “more comprehensive evaluation of [the defendant’s] current level of risk for violent offending”, which assesses an individual’s risk of violence and risk management strategies and which has “demonstrated good validity and reliability”. The defendant had all ten historical risk factors present, three of five clinical risk factors and all of five risk management factors.

51. A third instrument administered by Dr Youssef was the Structured Assessment of Protective Factors for Violence risk (SAPROF), which she described as:

“…a [structured professional judgement] tool designed to complement violence risk assessment tools, such as the HCR-20 v3, by examining factors that potentially mitigate an individual’s risk of violence recidivism. It has been shown to be a valid and reliable tool for assessing risk and planning treatment by providing a comprehensive picture of an individual’s strengths and supports and has been used with a variety of offender samples.”

52. Dr Youssef summarised the defendant’s level of risk, based collectively on the results of the assessment instruments, her interview and her file review:

“This suggests that his risk score placing him in the highest category for recidivism in the VRAG-R is an accurate reflection of his risk of re-offending. Particularly salient dynamic risk factors identified for [the defendant] include limited insight into his risk factors (e.g., substance use, antisocial peers, interpersonal difficulties, offence-supportive cognitions, need for intervention and support); general self-regulation (e.g., poor coping skills, negative emotionality, poor problem-solving, difficulty planning); intimacy deficits, demonstrated by difficulties in relationships; violence-supportive attitudes, and limited insight regarding internal processes (i.e., thoughts, emotions). In relation to protective factors, [the defendant] has developed some insight into the problems associated with his substance use and the impact on his mental health, however beyond that, he requires support and intervention to enhance other areas that can be protective for him, such as social support and adaptive coping skills.”

53. As to potential risk scenarios, Dr Youssef stated:

“[The defendant’s] violence appears to occur in various settings and against various victims, therefore a clear pattern is somewhat difficult to ascertain. However, were [the defendant] to reoffend, it is likely to be reactively, in a situation whereby he feels undermined, challenged, rejected, abandoned, trapped, or disrespected, rapidly escalates to anger and is unable to control it or alternatively, has become unwell and paranoid. At times, [the defendant’s] aggression is utilised for acquisitional purposes, and he is likely to use violence and a weapon to gain victim compliance. [The defendant’s] behaviour is likely to involve physical violence, usually with the use of a weapon, although he is also capable of offending without a weapon. [He] is unlikely to be deterred by the presence of witnesses or bystanders and the violence may occur either indoors or outdoors. [The defendant] may engage in violence on his own or in company with antisocial peers. The victim may be male or female, known or unknown to him. [The defendant’s] violence is likely to escalate rather rapidly. Once aroused to the point of aggression, [he] struggles to deescalate on his own without some sort of external factor. [He] is likely to be either under the influence of substances or withdrawing.”

54. Dr Youssef was of the opinion that the defendant poses a risk of committing a further serious violence offence as defined in the Act if he is not subject to an ESO. She recommended an ESO duration of at least 2 years, which would be sufficient to put in place community measures and supports so that he could progress to a point of more sustained change.

Report of Dr Calum Smith, psychiatrist

55. Dr Smith, a forensic psychiatrist, furnished a report dated 1 February 2023. He examined the defendant on 10 January 2023 and, following his return to custody for breaching the conditions of the ISO, on 30 January 2023. In the second interview, the defendant said that he had “slipped up, had some drug use”.

56. The defendant provided a similar history to Dr Smith to that which he provided to Dr Youssef. The defendant told Dr Smith that he thought his mental condition at the time of the index offences that led to the schizophrenia diagnosis was more likely a consequence of his use of methylamphetamine, an observation with which Dr Smith agreed.

57. Dr Smith asked the defendant about the reference in the material to him being sexually assaulted by his father, including a report that his mother had alleged that it occurred when he was 5 years old. The defendant confirmed that his father sexually assaulted him and one of his brothers, saying it occurred when he was aged 6 or 7. The boys made police statements at the time, and the police told him “they spoke to him about it” but nothing came of the allegation.

58. Dr Smith also deployed the HCO-20 v3 and concluded that the defendant “continues to present as a moderate to high risk of future violence”. He noted that “his recent lapse into drug use suggests the recovery remains fragile and should guide the response needed to support him in the community”. Dr Smith referred to the defendant’s “affective instability”, observing:

“Much of the material available to me show erratic behaviour and marked impulsivity. I noted at the first assessment it was clear that he was making progress, and at this stage the progress was being reflected in that he was being placed on less restrictions, for example in terms of being subject to scheduling requirements. However, since this he has breached his ESO again. It suggests that further work can be done to minimise the risk of this happening again.”

59. Dr Smith concluded that the defendant posed a risk of committing a “serious violence offence” as defined in the Act. He considered that it would most likely occur in the context of a relapse into substance abuse, which can quickly escalate. Dr Smith did not comment on the appropriate length of two years, but did refer to the defendant not having thus far had “a prolonged period where he has had the opportunity to develop skills in dealing with stress and coping”.

60. Dr Smith’s formal diagnoses were complex trauma, an Anti-Social Personality Disorder, a Substance Use Disorder and a possible Attention Deficit Hyperactivity Disorder (ADHD).

59. Dr Smith thought the defendant’s insight and judgement were reasonable, although “somewhat superficial”. He expressed concerns as to the defendant’s cognitive functioning. He expressly disagreed with a reference in a case note dated 9 September 2016 to the effect that “there were no apparent concerns with respect to the defendant’s cognitive abilities or indications of cognitive impairment”. Dr Smith recommended full cognitive testing, and thought that his presentation suggested an ADHD, contextualised with substance abuse. Dr Smith stated:

“There are some additional assessments that I believe would help;

[The defendant] needs a current neuropsychiatric assessment.

[The defendant] needs up to date brain imaging. He has a long history of substance abuse. Trauma affects the developing brain. Given the amount of violence he has been involved in, he is likely to have suffered head injuries. There is a reasonable likelihood of structural brain damage in addition to functional shortcomings.

I suggest a full functional assessment by an occupational therapist. I believe that some of the issues around work could be related to attention deficit, or potentially fear of failure in tasks. If he wants to start a business, then he needs to ensure he can tackle such tasks.

My recommendation is that an external psychiatrist comes in to oversee and integrate all the assessments, including physical tests and imaging, neuropsychiatric testing, drug and alcohol reviews, discussions with people close to him, occupational therapist review, progress in psychological work with the corrective services psychologists, medications effects and side effects.”

62. I propose to make a recommendation to that effect, since if the defendant has an undiagnosed cognitive disability, it will have implications for the manner in which he is supervised.

A Risk Assessment Report

63. As noted at [46] above, the material before the Court includes a Risk Assessment Report by Patrycja Luketic, who is an acting Senior Psychologist in the Serious Offenders Assessment Unit of Corrective Services, dated 18 July 2022.

64. Ms Luketic reviewed the file material concerning the defendant’s personal, criminal and substance use history and his progress in the community, particularly his compliance with supervision. Her assessment of his cognitive functioning was at odds with Dr Smith’s assessment:

“Whilst no cognitive assessment was completed as part of this assessment, there were no apparent concerns with respect to [the defendant’s] cognitive abilities or indications of cognitive impairment. While he had poor academic achievement, this appears to be related to behavioural difficulties as opposed to poor cognitive functioning. [The defendant’s] understanding appeared adequate throughout the current assessment.”

65. Ms Luketic noted the results of past administrations of predictive assessment tools. An application of the Level of Service Inventory - Revised (LSI-R) in 2021 placed him in the “High Risk” category for general and violent offending. The VRAG-R, administered in 2018, placed him in the ninth of nine “bins”, meaning that 76 per cent of violent offenders with a similar score reoffended violently within five years, and 87 per cent within 12 years. The Violence Risk Scale (VRS) administered in 2019 placed him with a medium to high risk of violent reoffending. It was re-administered in July 2022, and returned a score placing the defendant in the High Risk range.

66. Ms Luketic found that, overall, the defendant fell in the High Risk category of reoffending and concluded:

“Due to his history of both instrumental and reactive violence, his history of weapon use and use of illicit substances in the community whilst subject to supervision, it is possible that future violence could approach the threshold of a ‘serious violent offence’ as defined in [the Act].”

A Risk Management Report

67. A Risk Management Report was prepared by Mick Glover, a Community Corrections Officer with the Metropolitan Extended Supervision Team, and endorsed by Kelli Grabham, whose position is described in the report as a High Risk Offender Applications and Operational Governance Officer.

68. Mr Glover noted that an LSI-R that was administered on 22 June 2022 found the defendant to fall in the “Medium” risk level for general re-offending. I note that Ms Luketic did not refer to this assessment. Ms Grabham attached the assessment results to an affidavit by her that was read at the hearing.

69. Mr Glover reported:

“[The defendant] is currently residing independently in private rental accommodation which he secured, approximately two weeks following his most recent release from custody on 14 April 2022. On 7 May 2022, [the defendant] commenced employment in a car wash and currently continues in this position. His attitude toward the employment is positive and he is able to identify that managing his time constructively is of benefit to him in terms of his reintegration into society.

Since his release, [the defendant] has re-engaged with a local church which is connected with the local Salvation Army. He participated in the annual Red Shield appeal organised by the Salvation Army in May 2022. During a home visit to [the defendant’s] residence on 2 July 2022, the writer spoke with [the defendant’s] pastor from his church whom was also visiting [the defendant]. The pastor commented that [the defendant] appeared to be embracing his spirituality wholeheartedly since his release from custody and that this appeared to be reflected in the positive attitudes [he] was expressing.

[The defendant] is currently engaged in fortnightly risk management sessions with CSNSW psychology services and is also engaging in fortnightly alcohol and other drug (AOD) intervention.”

70. Mr Glover explained the operation of the conditions to an ESO, in the usual way for these reports. In her affidavit, Ms Grabham explained that she has not personally met the defendant. She reviewed Offender Integrated Management System (OIMS) case notes and other document entries concerning the defendant’s progress on the ISO since he was released on 28 December 2022, in particular, his attitude to employment and his breach of the conditions attached to the ISO.

Material tendered by the defendant on the question of an ESO

71. The defendant relied upon three affidavits affirmed by his solicitor to which she annexed OIMS notes concerning aspects of factual issues relevant to the plaintiff’s application as well as material that is germane to the defendant’s intentions. In her most recent affidavit, which is dated 22 February 2023, the defendant’s solicitor noted that she was instructed to apply for admission to a full-time residential rehabilitation program. As of the date of the affidavit, four such applications were still pending. He had been found unsuitable for two other programs due to his current opioid replacement prescription and/or his criminal record.

72. The same affidavit had attached to it a letter from the pastor of the Salvation Army Church attended by the defendant (the pastor’s letter). He spoke in very positive terms of the commitment that the defendant has made to overcome his issues. He said that the defendant has approached him to write the letter, but “the truth is that I was already planning on doing so before he asked me”.

The parties’ submissions

73. The plaintiff submitted that an ESO was appropriate in view of the expert opinions of Dr Youssef and Dr Smith as to the defendant’s level of risk of committing a further serious offence, as that term is understood in the Act.

74. The defendant submitted that when consideration is collectively given to the following salient features of his history and presentation, the Court will conclude that he does not pose an unacceptable risk of committing a serious offence.

75. Firstly, he has only committed one serious violence offence, which was twelve years ago.

76. Secondly, his only offences whilst supervised since his release in March 2019 have been breaches of the ESO, as well as an offence of use offensive weapon with intent to prevent lawful detention (the siege), which arose during the peculiar circumstances of confronting those supervising him for breaching the ESO.

77. Thirdly, while his conduct in the siege is concerning, the defendant’s mature response to his latest breach in January 2023 suggests he has learned from his previous experiences. He was reported as saying in a case note dated 2 February 2023:

“He said he could have done a runner as he no longer has [electronic monitoring], but knew what that would just make it worse ... He said that he had it played over and again in his head if he was arrested as he said he didn’t want it to go down like it did last time and that it had made things much worse for himself.”

78. Fourthly, while the experts assess the defendant’s risk of violent reoffending as medium to high or high, the tools employed do not discriminate between general violent offending and the statutory definition of ‘serious violence offence’ under s 5A of the Act.

79. Fifthly, the defendant has generally demonstrated a commitment to his rehabilitation from his release from custody in April 2022 until his relapse to drug use in early January 2023. He obtained stable accommodation, maintained employment, maintained a relationship with his partner and engaged meaningfully with a local church group, as recorded in the pastor’s letter.

80. Sixthly, even if the defendant commits another offence in the future, it is only a ‘serious violence offence’ which concerns the Court, that is, conduct resulting in death or the infliction of grievous bodily harm (or wounding with intent to cause grievous bodily harm), rather than a perhaps more likely, but less ‘serious’ offence such as drug possession or assault.

81. The plaintiff responded that, although the recent convictions have, in the main, been for breaches of conditions, they are nonetheless serious when their purpose is recalled. While he did not attempt to escape or resist arrest in the aftermath of his most recent breach, he retained a resistant attitude to the authority of those who supervise the conditions. The fact that he lost his employment, is in a volatile relationship and relapsed into substance abuse are continuing concerns.

82. The defendant explained that the proposal for a residential rehabilitation program was being pursued as a condition of bail pending the resolution of his most recent breach charge.

Consideration

83. Having considered all of the material, to apply the terms of s 5B(d) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order that is sought (an unacceptable risk).

84. The index offences demonstrated a potential at that time for both intentionally and recklessly inflicted serious violence. If it were not for the siege incident in 2021, the submission that the defendant no longer posed an unacceptable risk would have had great weight. However, that relatively recent incident demonstrates how the defendant’s use of prohibited drugs can escalate a stressful incident, in that case, being arrested, into a major and highly dangerous one.

85. Dr Youssef and Dr Smith identified the role that substance abuse has played in the defendant’s history of violent criminal offending. In that regard, I accept the opinions of Drs Youssef and Smith that the defendant was likely suffering from a drug-induced psychosis rather than an episode of paranoid schizophrenia at the time of the index offences. I note that the defendant does not resist that finding. The defendant is not yet sufficiently clear of the risk of giving in to using prohibited drugs. That is particularly so when other factors, such as relationship stresses or loss of employment, come into play. There remains the potential for a relatively minor incident to spin out of control if the defendant is under the influence of prohibited drugs and for him then to pose a real threat of committing a serious offence.

86. In all the circumstances, I am satisfied that an ESO is necessary, and decline to exercise my discretion to refuse the application.

The length of an ESO

87. The defendant’s decision to join a residential rehabilitation program to address his issues of substance use is a positive development although, by the time of the hearing, he had been sentenced for the breach of the ISO condition. For the purposes of this application, I proceed on the assumption that he will not be attending such a program, although I understand that it is possible that, having been released from custody subject to an ICO, he may seek admission to such a program. In an OIMS note dated 9 February 2023, it appears that the defendant expressed interest in pursuing a 3–4 month rehabilitation program upon his release from prison.

88. Having regard to the entrenched nature of the defendant’s underlying vulnerability to substance abuse and its central relevance to his level of risk, an ESO for a period of 2 years is necessary.

Conditions of an ESO

89. Most of the conditions that were proposed by the plaintiff were either agreed or the subject of agreed amendments. Submissions as to the remaining few proposed conditions that were in dispute were made before and after the hearing of the application, as well as orally on the day.

Electronic monitoring

90. The defendant’s primary position was that he opposed a condition that permitted him to be electronically monitored. Alternatively, it should be imposed for a month. The plaintiff submitted that, had it been in place in December 2022, the ESO supervising team would have been alerted to his loss of employment. They did not learn that he had ceased his employment before Christmas until 5 January 2023, when informed of that fact by the defendant. However, I note that electronic monitoring had continued until 28 December 2022. His non-attendance at his place of employment before Christmas had not been detected.

91. The plaintiff also submitted that electronic monitoring allowed for retrospective mapping, so that his whereabouts could be checked after the event, which operates as a deterrent upon the defendant if, for example, he is tempted to go to a particular location for the purpose of purchasing prohibited drugs.

92. I am of the opinion that electronic monitoring should be maintained for the first six months of the ESO and, thereafter, it should be retained as a reserve power for the supervising authorities, to be re-deployed in certain circumstances, namely, if the defendant is charged with an offence of breaching the ESO or with a criminal offence or if he fails to comply with certain of the other conditions of the ESO.

93. It is likely that when the defendant is released from custody, he will encounter stressful situations in the first few months. Electronic monitoring will assist with his compliance with the other conditions of the ESO.

A schedule of anticipated movements

94. The defendant opposed conditions that obliged the defendant to provide a schedule of his proposed movements, if directed to do so, as being unnecessarily intrusive. I am satisfied that they are necessary, but will modify condition 8 to provide greater flexibility in the event of an unavoidable variation by the defendant from the schedule.

A prohibition of the use of prohibited drugs

95. The plaintiff proposed a condition (condition 19) that “the defendant must not use prohibited drugs, or abuse drugs lawfully prescribed”. The defendant proposed a further condition (condition 19A) that sought to introduce an element of discretion if the defendant breached condition 19 and immediately communicated the breach to the supervising authorities. Ultimately, there was a degree of agreement around an alternative proposal, to similar effect, which is now a note to condition 19.

Information-sharing between agencies

96. This was opposed by the defendant as a measure that would discourage him from candidly discussing his issues with substance abuse with therapists, for fear that he may be reported for criminal offending or potential breaches of his conditions.

97. I note that Dr Youssef expressed a similar concern in her report:

“I note that with regards to points 45 and 46, the wording be refined to reflect what information will be shared, rather than ‘any information’. Whilst I appreciate the need to prevent staff splitting and to ensure that [the defendant] is receiving consistent and adequate care, his level of distrust in CSNSW staff is such that it is unlikely that he is able to meaningfully engage or disclose issues that may be problematic for him, thus impacting on his overall risk. Of course, information pertaining to imminent risk to [the defendant] or to others needs to be acted upon in accordance with the relevant professional’s reporting obligations, however day-to-day issues and matters should ideally be dealt with by the relevant professional until such time that the risk is considered high. Should these two conditions remain, then it is highly unlikely that [the defendant] will honestly and meaningfully engage with medical and/or therapeutic professionals as long as ‘any information’ is transmitted back to CSNSW.”

98. I have amended the conditions to confine the sharing of information to material relevant to information or opinions that are relevant to a possible elevation in the level of risk of re-offending.

Orders

99. I make the following orders:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of 2 years from the date of this order;

2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule; and

3. Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified.

Recommendation

100. I request the plaintiff convey to the relevant authorities the report of Dr Calum Smith dated 1 February 2023 and draw to their attention the recommendations at pp 44 concerning certain proposed cognitive and occupational assessments of the defendant, which are also set out at [61] of this judgment.

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McGee Conditions of Supervision (115883, pdf)

Decision last updated: 24 May 2023