State of New South Wales v McGorm (Final)

[2019] NSWSC 484

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v McGorm (Final) [2019] NSWSC 484
Hearing dates:	27-28 November 2018
Date of orders:	19 December 2018
Decision date:	30 April 2019
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Court confirms the orders entered on 19 December 2018.
Catchwords:	CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious violence offence – single serious violence offence – application for extended supervision order – whether the defendant is a supervised offender – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – orders
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (High Risk Offenders) Amendment Act 2017 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Miller v R [2015] NSWCCA 86 State of New South Wales v Dillon (Final) [2018] NSWSC 1626 State of New South Wales v French (Final) [2017] NSWSC 1475 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v McGorm (Unreported, Supreme Court of New South Wales, 21 August 2018) State of New South Wales v Pacey [2015] NSWSC 1983 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thurston [2018] NSWSC 421 State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 State of NSW v Ceissman [2018] NSWSC 508 State of NSW v Sancar [2016] NSWSC 867 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 (Plaintiff) Tyson John McGorm (Defendant)
Representation:	Counsel: D New (Plaintiff) G E Lewer (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/231225

REASONS FOR DECISION

1. By an amended summons filed in Court on 27 November 2018 (“the application”), the State of New South Wales (“the State”) sought an order that Tyson John McGorm (“the defendant”) be subject to an extended supervision order for a period of 3 years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the amended summons.

BACKGROUND

The Offence   

2. The defendant has been convicted with one “serious violence offence” as defined under s 5(1)(a) of the Act, namely, that on 19 March 2011, the defendant recklessly caused grievous bodily harm (“the offence”), an offence contrary to s 35(1) of the Crimes Act 1900 (NSW).There was an additional offence included on a Form 1 and taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW); that offence was of assault occasioning actual bodily harm (“AOABH”), an offence contrary to s 59(1) of the Crimes Act, which is not a serious violence offence for the purposes of the Act.

3. On 23 August 2012, having pleaded guilty, the defendant was sentenced in Gosford District Court by Judge Ellis to 7 years and 2 months imprisonment, with a non-parole period of 4 years and 8 months. The defendant was released to parole on 25 January 2017.

4. The following summary of the offence is derived from the “Agreed Facts” before the sentencing judge:

1. The defendant was jointly charged with the co-defendant (“CO1”) who was the defendant's friend.

2. On 18 March 2011, the defendant, CO1, the defendant's girlfriend (“CO2”) and a fourth person were drinking at night at a club (“M1”), in Budgewoi (“the Club”).

3. The defendant was 18 years old.

4. Also at the Club were the victims (“V1” and “V2”) who were 47 years old and 53 years old, respectively.

5. When the Club closed at midnight the victims left and decided to walk to V2's home, which was a five minutes’ walk away.

6. As V1 and V2 left the Club, they had a verbal altercation with the defendant and CO1.

7. The defendant, CO1, CO2 and the fourth person (“the group”), got into the defendant's car and drove away.

8. On the drive, the group saw the victims walking to V2's home.

9. The car stopped, and the defendant, CO1 and CO2 got out and approached the victims. A fight followed.

10. During the fight V1 was stabbed multiple times with a screw driver and had his head stomped on and kicked.

11. An independent witness watched the fight occurring outside her home. The witness saw V1 lying on the ground and saw the defendant run towards V1, jump with both feet in the air and land on the left side of V1's head. The witness saw CO1 do the same to V1. The witness watched the defendant swing his leg and kick V1 to the face. CO1 kicked V1 in the back of the head and CO2 kicked him in the forehead.

12. The independent witness had her sister telephone police. The independent witness yelled at the defendant, CO1 and CO2 to stop and that she had called the police. As the group drove off, the witness saw the licence plate of the car, read it out to her sister who then repeated that licence plate to police via the telephone.

13. The defendant in his ERISP with police proposed that V1 was "harassing" CO2 inside the Club. The defendant admitted he left in the car and drove in the same direction that V1 and V2 were walking. He admitted that he exchanged words with V1. He further admitted that he and CO1 got out of the car and deliberately approached V1 and V2 on the footpath. The defendant alleged that V1 punched CO2 and that he and CO1 retaliated.

14. V1 suffered stab wounds to his right upper abdomen, right flank and left arm, an artery was damaged and he suffered renal failure. V1's lungs had collapsed and he was not, at first, expected to live. V1 also suffered head injuries.

15. V2 was punched to the head by the defendant and received a small cut to his nose and graze to his head (the AOABH charge, referred to above).

5. The Agreed Facts do not allege who used the screwdriver. Judge Ellis found each of the co-accused jointly responsible to the same degree of criminality. His Honour stated:

[T]he involvement of these two offenders in the offence was on the same level. I do not know who precisely did what in terms of the stabbing, but each of them was seen to jump on his head and each seen to kick him, and each in any event, by reason of common purpose, is guilty for what the other did.

6. Further details as to the defendant’s criminal history and patterns of offending behaviour will considered below as part of the Court’s considerations under s 9(3).

Course of Proceedings   

7. By a summons filed on 27 July 2018, the State sought the following relief:

Preliminary hearing orders

1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

a. Appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

b. Directing the defendant to attend those examinations.

Interim Orders

2. An order:

a. pursuant to s. 10A of the Act, that the defendant be subject to an interim supervision order from 13 September 2018 ("the interim supervision order"); and

b. pursuant to s. 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and

c. pursuant to s. 11 of Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.

Final relief

3. An order:

a. pursuant to s. 5B and s. 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of 3 years from the date of the order; and

b. pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this Summons.

Other orders

4. An order that access to the Court's file for any document shall not be granted to a non-party without 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.

8. The summons was the subject of a preliminary hearing before Fagan J on 21 August 2018. His Honour determined that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 7(4)): State of New South Wales v McGorm (Unreported, Supreme Court of New South Wales, 21 August 2018). Consequently a psychologist and a psychiatrist were appointed to assess the defendant's risk of re-offending and to furnish their reports to the Court (“the court appointed experts”), as follows:

1. Ms Jenny Howell, psychologist, report dated 12 November 2018; and

2. Dr Andrew Ellis, psychiatrist, report dated 12 November 2018.

9. His Honour also ordered an interim supervision order to commence from 20 September 2018 (the day the defendant's sentence expired) and imposed the conditions in the Schedule attached to the summons, save for condition 5, with respect to electronic monitoring, and conditions 36-40, regarding oversight of the defendant's electronic communications.

10. The defendant’s interim supervision order was renewed on two further occasions. Pursuant to s 10C(2) of the Act, any subsequent renewals of the interim supervision order were unable to continue beyond 20 December 2018.

11. The Court made orders on 19 December 2018 as follows:

1. Pursuant to s. 5B and s. 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant shall be subject to an extended supervision order for a period of 3 years from 19 December 2018; and

2. Pursuant to s 11 of the Act, the defendant is directed to comply, for the duration of the extended supervision order, with the attached conditions.

12. The conditions referred to in Order 2 are attached to this judgment at Annexure A.

13. It was indicated that reasons for judgment would be given at the earliest available opportunity. These are the reasons for decision.

OBJECTS OF THE ACT

14. The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

15. The word “ensure”, which is referred to in the objects of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [61].

APPLICATION OF THE ACT

16. The State may apply for an extended supervision order against “an offender” pursuant to Pt 2 Div 1 s 5H. The proceedings are to be conducted as civil proceedings pursuant to s 21 of the Act.

17. There are four preconditions to the making of an extended supervision order reflected in s 5B of the Act. That provision is as follows:

5B Making of extended supervision orders—unacceptable risk

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

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

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

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

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

FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN S 9(3)

Evidence before the Court   

18. The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act. This included, inter alia, the following:

1. reports and records produced by Corrective Services NSW (“CSNSW”);

2. reports from the court appointed experts; and

3. a Risk Assessment Report (dated 14 March 2018) produced by Ms Gillian Tulloh, Senior Specialist Psychologist with the Sex and Violent Offender Therapeutic Programs of CSNSW, which report was supported by Ms Cherice Cieplucha, Psychologist with the Risk Management Programs of CSNSW.

19. The State also relied upon the following evidence by affidavit:

1. Mr Shaun Croner, solicitor for the Crown Solicitor’s Office, affirmed 27 July 2018 (together with annexures) and 10 August 2018 (together with Ex SC-1), respectively;

2. Ms Johanna Fisher, solicitor for the Crown Solicitor’s Office, affirmed 13 November 2018;

3. Ms Janelle Farroway, High Risk Offender Applications and Operational Governance Officer, affirmed 7 August and 14 November 2018, respectively; and

4. Ms Angela Rybak, Senior Electronic Monitoring Officer, sworn on 13 November 2018;

5. Ms Cherice Cieplucha, affirmed 14 November 2018; and

6. Ms Linda Hollis, the defendant’s Departmental Supervising Officer (“DSO”), sworn 26 November 2018.

20. The defendant relied upon the following evidence by affidavit:

1. Ms Amanda Coultas-Roberts, solicitor for the defendant, affirmed 21 November 2018.

21. Dr Ellis, Ms Howell, Ms Hollis, Ms Farroway and Ms Cieplucha were each required for cross-examination.

Background Matters

22. The following summary of matters related the defendant’s background and development, including psychiatric and medical history, is derived from the psychiatric report of Dr Ellis.

23. The defendant is a 26-year-old single Australian man with no dependents. He has been living with his grandmother and grandfather for the past year whilst on release from custody. He is unemployed and collects a "Newstart" benefit.

24. He sees his general practitioner weekly, a psychiatrist at the Wyong Mental Health Service and a psychologist on a monthly basis. He is prescribed olanzapine (antipsychotic medication) 10 mg twice daily, paliperidone (antipsychotic medication) 3 mg in the morning, oxazepam (sedative medication) 15 mg twice daily and methadone (opioid substitution medication) 70 mg daily.

25. As to his background and development, the following may be noted:

1. He was an only child.

2. His parents separated when he was born. He had no contact with his father. He was raised by his mother.

3. He reported a good relationship with his mother to Dr Ellis. However, other reports indicate a tumultuous relationship with his mother. She is report­ed to have used cannabis and had a major mental illness. She died of breast cancer in 2018.

4. He attended school until year 8. He completed year 10 whilst at college. He said he cannot remember school. He reported being admitted to the Baxter Juvenile Justice Centre overnight on one occasion while school age. Other reports note behaviour problems at school, particularly fighting.

5. He had one girlfriend at the time of the offence. He has not had any subsequent relationships. He has had periods of brief employment. He has no formal vocational qualifications.

26. As to the defendant’s “psychiatric history”, Dr Ellis reported:

He reported an admission to the psychiatric hospital at Wyong two months ago. He self-presented with symptoms of gaps in his memory. He was admitted for one week. No documents were available regarding this admission.

He started regular prescription of psychotropic medication in prison in 2017 where he was diagnosed with schizophrenia. He had briefly been prescribed the antidepressant sertraline in his teenage years. There are references to a diagnosis of ADHD in childhood through the documents, however no details. He was never treated for ADHD.

I note in 2011 he saw a psychiatrist Dr. Scott. He was noted to be at high risk of developing a psychotic illness on the basis of a maternal history of mental illness, and some attenuated psychotic symptoms.

He described his time in the violent offender treatment programme. He said it was "all right". He said he was he said that he was hearing voices during the sessions, his thoughts echoed aloud and not on medication. He said he was anxious sitting in the group. He said he was generally worried but did learn to talk about things and "not bottle up emotions". He said that he learned to ask for help. He was noted to participate in a mixed manner, but was considered to have participated satisfactorily.

He said that he had completed the equips aggression course. He said that he felt this was "a good course". He said that currently he was engaged in counselling around grief. His mother died whilst he was in hospital recently. He said that his mother's death has affected him badly. It is hard for him to put it in words however he feels upset all the time.

He had a screening measure of intelligence in 2015 placing him in the average range. A self-report personality questionnaire in the same year showed elevations on multiple domains of personality dysfunction.

There is no history of suicide attempts or self-harm.

27. As to the defendant’s “medical history”, Dr Ellis noted:

He reported a motor vehicle accident in 2007 when he was riding a motor­bike with no helmet. He had a skull fracture and was hospitalised. He be­lieves that he had memory loss following this.

There is no history of epilepsy, cranial infection or surgery.

He believes that his mother had psychiatric problems and took medication. The letter from Dr. Scott indicates that his mother had a psychotic disorder.   

Criminal Offending

28. The defendant’s criminal history consists of juvenile convictions for destroy or damage property, common assault (domestic), breach bail, offensive behaviour and possess drug. Between the years 2010-2017, as an adult, the defendant committed a range of offences: enter dwelling with intent to steal, possess housebreaking implements, breach bail, drive suspended, destroy or damage property, break and enter, common assault, refuse sample, possess drug and custody of knife in public.

29. His institutional charges also include assault, possess drug, possess drug implement, unlawfully use phone/fax, disobey direction, intimidation, deface cell, possess offensive weapon/instrument (namely, a makeshift “shiv"), fail and refuse urine tests, intimidation and failure to comply with routine.

30. Whilst the offence is the only “serious violence offence” on his record, the defendant committed two further offences that were either violent in character and/or included a weapon:

1. On 29 July 2007, the defendant was arrested and charged for malicious damage (“the 2007 offence”). He was 15 years old at the time. The agreed facts are that the defendant, in company with CO1 (the same co-offender as the offence) and another young person (“CO3”) threw branches onto a road and struck the victim's (V3's) car. A summary of those agreed facts, derived from the Police Facts Sheet, follows:

1. V3 slammed on the brakes, her car skidded and then stopped. The defendant and CO1 approached V3's car and started kicking the driver' door. V3 telephoned triple-0.

2. The defendant, CO1 and CO3 hid in nearby bushes. V3 drove to a petrol station nearby and called her boyfriend, M9. When M9 arrived, he and V3 drove, in separate vehicles, towards Chain Valley Bay.

3. While driving V3 saw the defendant, CO1 and CO3 on the side of the road. V3 and M9 stopped and got out of their cars a short distance away. V3 told M9 they had just driven past the persons who had struck her car. M9 chased down the group and caught hold of CO1. The defendant and CO3 hid in the bushes. M9 and V3 called the police.

1. While M9 and V3 (holding CO1 with them) waited for police to arrive, the defendant and CO3 threw rocks from the top of an abandoned building, aiming it at V3 who stood near her car. The rocks narrowly missed V3 but hit her car's front windscreen, bonnet, roof, nearside front guard, door and rear door. Fearing for their safety, V3, M9 and CO1 jumped into M9's car and drove a short distance away till police arrived.

2. On 21 April 2009, the defendant was sentenced in the Children’s Court to bonds for damaging property and common assault. He was also cautioned for behaving in an offensive manner. However, it may be noted that no court records were provided in relation to that offending. The only material provided, in that respect, was the aforementioned Police Facts Sheet in relation to the 2007 offence, which does not refer to a common assault charge. The fact that those records were not available reduces, to some extent, the weight that may be attached to this factor beyond it representing a historical offence involving violence. Notwithstanding that fact, it is not disputed that the defendant committed common assault as a juvenile.

3. On 19 October 2017, while on parole for the offence the defendant was arrested and charged for driving while unlicensed, refusing to supply an oral or fluid sample when directed to by a police officer, possession of methamphetamine and custody of a knife, namely, a black multi-tool knife containing a 4 inch silver metal blade in his right shorts pocket (“the October 2017 charges”). The defendant tested positive on the Roadside Drug test for methylamphetamine. On 8 November 2017, the defendant pleaded guilty as to the October 2017 charges in Wyong Local Court and was convicted and fined $3000.

The Withdrawn Charge

31. On 9 November 2017 the defendant was charged with wounding with intent to cause grievous bodily harm (“the 2017 wounding charge”), contrary to s 33(1)(a) of the Crimes Act.

32. On 11 April 2018, at Newcastle Local Court, the 2017 wounding charge was withdrawn and dismissed. Following that decision, the State Parole Authority subsequently rescinded the defendant’s revocation of parole and he was released to parole on 2 May 2018.

33. The defendant contended, given that there is no admission by the defendant as to the 2017 wounding charge, it should be “disregarded for the purposes of consideration of the plaintiff’s application”. It was also submitted that the Court as presently constituted should adopt the approach of Fagan J at the preliminary hearing, with respect to the same.

34. At the final hearing, the Crown conceded that evidence as to the reason for withdrawal of the 2017 wounding charge “has no relevance” as to the evaluative judgment of the Court under s 5B(d) or with respect to the risk of serious offending.

35. The evidence sought to be relied upon as to the 2017 wounding charge was not admitted into the proceedings. The evidence before the Court was the mere historical fact of the charge. The Crown placed no reliance upon the 2017 wounding charge in its submissions, save as described below. It should be mentioned at this juncture that, notwithstanding the defendant’s objection to material concerning that charge (other than the background fact of the charge), counsel for the defendant returned to the fact of the charge in cross-examination of the court appointed experts, in order to contend that their opinions were infected by reliance upon that factor, which was no longer relevant. The Crown submissions, in that respect, were confined to refuting that contention (that same approach was adopted in re-examination).

36. I will return to this topic in the context of a discussion of the evidence of the court appointed experts, and will reach the conclusion that, to the extent that reliance was placed upon the dismissed 2017 wounding charge, little weight was attached to the fact and the absence of such information would not have altered the conclusions of the court appointed experts.

Views of Sentencing Court: The Offence   

37. The following is a summary of the views of the sentencing judge, derived from the remarks on sentence of Ellis DCJ:

1. The nature of the violence was "gratuitous" noting the defendant stomped on V1’s head as V1 lay on the ground;

2. The objective seriousness of the offence was high because of the use of a weapon, the kicking and stomping and the degree of serious harm suffered by V1;

3. The opinions of psychologist, Mr Dieter and psychiatrist, Dr Scott were that the defendant's mental health issues and his substance and alcohol abuse played a role in his offending. However Ellis DCJ found: “[t]hat there is no causal connection between whatever the [defendant’s] mental health issues may be... and the offending”.

4. Having heard the defendant and CO1 give evidence at the sentence hearing, his Honour found:

Neither of them instilled a huge amount of confidence in me in terms of either the genuineness of their remorse, in terms of their understanding of what they had done and the consequences of what they have done…

5. As to the seriousness of the offence, his Honour observed:

[W]hile perhaps not in the worst category [of offending], noting as I do that the injury under this offence could include someone who was a quadriplegic or a paraplegic or indeed brain dead, but certainly not in the worse case category it is within the high range of offending against this particular provision.

Parole

38. As to the defendant’s performance on parole, counsel for the defendant advanced the following submissions:

It was certainly, when he was first released to parole, he was well off the rails then, went back into custody for the withdrawn offences. He's certainly done much better on his second time, second try at conditional release, and it's only improving, it appears, as time has passed. So he's released in about April 2018, we're now in November of 2018. And if your Honour does undertake the task of the review of the OIMS notes, it's a significant improvement, he's doing much better. And this is in circumstances where, as I say, he's only ever had one previous period on conditional release, he didn't do well then, he's doing much better this time.

But I'm certainly not saying that he's without blemish. There's ongoing or there were, certainly, particularly earlier in the year, problems with use of drugs. But given he's doing better now, the things that Ms Farroway pointed to that might demonstrate a problem were … I would submit they're scraping the bottom of the barrel. So he was spoken to about whether or not he wanted to live in a halfway house rather than with his grandparents and he said he didn't want to because he didn't want to be associating with people who'd just been released from gaol. I don't really see how, in fairness to the defendant, that can be used to demonstrate that he's not serious about his rehabilitation.

39. The following summary of the defendant’s performance under parole until August 2018, which with respect I accept, is extracted from the judgment of Fagan J at the preliminary hearing:

The defendant was first released on parole on 25 January 2017. He continued on parole under supervision until 8 November 2017 when he was charged with a further offence of violence. He was then returned to custody and the State Parole Authority revoked his parole. That further charge was not pressed after several mentions in the Local Court at Newcastle. The State Parole Authority therefore rescinded its earlier revocation and ordered that he be released again to parole no later than 2 May 2018. He was so released and has returned to supervision by Community Corrections, and has continued at liberty on those terms to the present date.

…

Following his first release on parole on 25 January 2017 the defendant engaged erratically with Community Corrections Officers who endeavoured to supervise him. The material tendered includes an assessment which places the defendant in the 16th percentile with respect to his cognitive and intellectual functioning. There are numerous reports dating from his first period on parole between 25 January and 8 November 2017 indicating that he exhibited symptoms of acute anxiety, paranoia and delusion and that he was misusing prohibited drugs.

…

During his parole, both between 25 January and 8 November 2017 and again since 2 May 2018, he has attended a methadone clinic and has been prescribed methadone. But his attendance and usage of methadone has been erratic. In his second period of parole from 2 May 2018 his psychiatric state and his cooperation with Corrective Services and his misuse of drugs has been irregular. On the first day after his second release to parole, namely, 3 May 2018, he reported to a Corrective Services Officer at Wyong. This officer discussed with the defendant the diagnosis of bipolar disorder and schizophrenia. He stated that he had a feeling “his head is racing and he cannot turn it off”. There was discussion of him attending a general practitioner and obtaining a referral to a psychiatrist for ongoing treatment.

Between that date and the present there are a number of records of the Community Corrections Officers of their discussions with the Wallama Clinic where the defendant has attended to receive methadone under a prescription from his general practitioner. Frequently throughout the last three months that clinic has reported to Corrective Services that the defendant has failed to attend to receive his dosages, attended but refused to provide a biological sample for drug testing, become aggressive and hostile when pressed for a sample and so on. It is evident he has been far from cooperative in seeking to use the methadone program properly to alleviate his craving for illicit drugs.

40. On 2 May 2018, as earlier mentioned, the defendant's revocation of parole was rescinded.

41. While on parole for the offence the defendant reverted to abusing illicit substances.

42. The CSNSW Offender Integrated Management System (“OIMS notes”) recorded the following:

1. On 15 May 2018, the defendant admitted to his DSO that he had used methamphetamine and heroin for three straight days and that he was hearing voices.

2. On 16 May 2018, the defendant was assessed at Wyong Hospital for his mental health. The registrar wanted to admit the defendant but he refused.

3. On 19 and 23 May 2018 and 7 and 15 June 2018, the OIMS notes suggest that the defendant was stable.

4. On 9 July 2018, the OIMS notes recorded that the defendant's mother was recently diagnosed with breast cancer. On 10 July 2018 the defendant admitted to his DSO that he used methylamphetamine and heroin for four straight days. The defendant was aggressive, admitted he liked using drugs and described himself as a “ticking time bomb”. On 11 July 2018, the defendant was observed to have returned to anti-social influences.

5. On 12 July 2018, the OIMS notes states that the defendant had been required to provide a minimum of one urine drug test every three months and that he has refused that urine test on five separate occasions in the past two months. A sample provided on 4 June 2018 was negative for all illicit substances.

6. The general theme of the OIMS notes from July 2018 to the date of the final hearing is that the defendant had not tested positive for illicit substances but has admitted taking them in July 2018. There were no tests for part of the period when the defendant’s whereabouts were unknown (5-10 September 2018). No tests were conducted between August and October 2018.

7. On 11 September 2018, the defendant's grandmother telephoned the ESO team to confirm that the defendant had admitted himself to Wyong Hospital as his mental health had declined (auditory and visual hallucinations, unable to sleep and highly anxious state).

43. The defendant’s counsel candidly accepted the defendant’s first period of release was very problematic. It is said he has done “much better on his second time”. That submission may be accepted as a relative concept but the defendant’s performance in the second period of conditional release showed some very modest improvement. That improvement was, however, much greater when the defendant was under supervision.

44. Further, whilst showing some small improvement, the second period of conditional release contained matters of real concern. On 9 July 2018 the defendant’s mother was diagnosed with breast cancer. For the balance of that month, the defendant was either taking illicit drugs or refusing tests with regard to the same.

45. Whilst the general theme of the OIMS notes from after July 2018 to the time of the final hearing revealed that the defendant had not tested positive for illicit substances and had regularly taken methadone (noting no tests were conducted between August and October 2018), that must be considered in the light of the findings of Fagan J, with which I agree, at the preliminary hearing:

Between that date [May 2018] and the present [August 2018] there are a number of records of the Community Corrections Officers of their discussions with the Wallama Clinic where the defendant has attended to receive methadone under a prescription from his general practitioner. Frequently throughout the last three months that clinic has reported to Corrective Services that the defendant has failed to attend to receive his dosages [of methadone as prescribed by his GP], attended but refused to provide a biological sample for drug testing, become aggressive and hostile when pressed for a sample and so on. It is evident he has been far from cooperative in seeking to use the methadone program properly to alleviate his craving for illicit drugs.

[Emphasis added.]

Interim Supervision Order

46. The defendant’s interim supervision order commenced on 20 September 2018. Ms Hollis was the defendant’s DSO under the interim supervision order. Immediately prior to that role, whilst the defendant was on parole, Ms Hollis was also the defendant’s Community Corrections Officer (“CCO”).

47. The OIMS notes recorded, inter alia, the following:

1. On 25 September 2018, the defendant presented to Wyong Hospital with a drug induced psychosis.

2. On 27 September 2018, the ESO team learned that the defendant's mother passed away. The defendant has not tested positive for any illicit substances since and had presented daily to his health clinic to receive his methadone.

48. At the final hearing, Ms Hollis described the difference in the defendant’s behaviour with Community Corrections under parole and whilst subject to an interim supervision order. She described the defendant as “more compliant” and “more willing to engage with Community Corrections”.

49. Ms Hollis confirmed that the defendant was engaging with a psychologist on a weekly basis as well as undertaking drug analysis weekly. She noted that on parole that drug analysis was not as regimented and subject to the defendant’s behaviour, on some occasions it was fortnightly or monthly.

50. In written submissions, counsel for the defendant conceded that “the defendant has had a mixed response to supervision in the past”. However, it was contended that, more recently, the defendant had been “doing very well”. In closing submissions, counsel for the defendant again conceded, “he’s certainly breached conditions of his release”.

51. The State did not demur from the above submissions with respect to the defendant’s performance on his second period of conditional release, particularly under the interim supervision order. The State accepted the defendant “has been doing better”. However, during May to September 2018, whilst on parole, the defendant was going through mental health decline and during such time he returned to using drugs. The State juxtaposed the defendant’s performance under the two forms of supervision and it was contended that the defendant performed better when subject to the conditions of the interim supervision order. I accept that submission.

Behaviour in Custody   

52. The defendant has been punished for several acts of misconduct while in custody. The following summary is derived from various CSNSW and Juvenile Justice records:

1. On 26 September 2012 the defendant was classified as A2 maximum security classification as a result of being found guilty of orchestrating a serious assault on another inmate;

2. The defendant has been disciplined for assault on 1 January 2012 and intimidation on 10 July 2012 and 1 October 2016;

3. The defendant failed prescribed urine tests on 6 July 2011, 26 October 2012 and 11 June 2014 and had been disciplined for possessing drugs or possessing drug implements on 28 October 2012, 29 October 2012, 3 September 2014, 2 April 2015 and 11 June 2014; and   

4. The defendant has been disciplined for possessing a weapon on 11 August 2014 and 23 April 2015. In the latter incident, the defendant was found with a shiv inside the pocket of his jacket. The defendant gave officers the implausible explanation that he had not worn the jacket for a long time and did not know it was there.

Reports of the Court Appointed Experts   

53. The court appointed experts unanimously opined that the defendant poses a high risk of further serious violent offending, noting:

1. The defendant's substance and alcohol abuse issues;

2. The nature of the defendant's offending in the past;

3. The defendant's lack of insight into the pathways to his offending;

4. The absence of an ability to regulate himself; and

5. The defendant's likelihood of being in possession of a weapon which elevates the nature of the risk to a serious violence offence.

(The same opinion was reached by Ms Tulloh in her Risk Assessment Report, which I will return to under a separate heading).

54. Each expert, including Ms Tulloh, utilised actuarial assessment tools and categorised the defendant in the high risk of violent offending because of the presence of several static and dynamic risk factors (including impulsivity and criminal peers).

Dr Ellis’ evidence

55. Dr Ellis interviewed the defendant on 26 October 2018 for two hours and his grandmother for 30 minutes.

56. Dr Ellis diagnosed the defendant as meeting the criteria for schizophrenia; substance use disorder, particularly cannabis, alcohol and stimulants; and pre-morbid conduct disorder. It was unclear whether the defendant would meet the criteria of anti-social personality disorder as a number of the defendant’s behaviours had occurred during either or both substance use or untreated psychosis. It was unlikely the defendant suffered attention deficit hyperactivity disorder (“ADHD”).

57. As to the diagnosis of schizophrenia, Dr Ellis opined:

He would meet criteria for the diagnosis of schizophrenia. He reports a long history of hallucinations and associated delusions. He presents with the blunted emotional expression and slowed cognitive and psychosocial function that accompanies the disorder typically. It appears that the disorder onset in his teenage years and has been associated with an arrest and decline in his function over time. This disorder is chronic, and shows some level of treatment resistance as his hallucinations do not remit with standard treatment. His symptoms have persisted in the absence of substance use, so are considered independent of substance use, although likely exacerbated by use.

58. Dr Ellis then gave an opinion under the heading “Risk of Commission of a further Serious Violent Offence” over pages 10 to 12 of his report.

59. He commenced with a description of current risk assessment techniques in behavioural science. He defined the nature and scope of such techniques and their limitations as follows:

With current risk assessment techniques in behavioural science it is not possible to determine whether an individual person will reoffend with a violent offence, or more specifically a serious violent offence as defined by law. It is possible to identify risk factors associated with group violent reoffending established in the published literature in order to manage reoffending risk. Actuarial measures such as the V-RAG and V-RAG R, or structured professional judgement tools such as the HCR-20 V3 or VRS are able to allocate individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons within the group as reoffending. The difficulty with this approach is that it does not discriminate between those in a particular risk group who do reoffend and those who do not. There does not appear to be a particular advantage to actuarial scales over structured professional judgement scales. Both appear superior to unaided clinical impression. These scales tend to more correctly identify low risk groups who do not offend, than high risk groups who do go on to offend.

No tool specifically assesses for serious violent offending which could or does result in significant injury or legal consequences. These types of offences are rarer, and thus statistical methods are unable to reliably detect them in large samples. There is some epidemiological data to suggest persons with schizophrenia are more prone to serious violence (for example are over-represented in samples of homicide offences).

In determining this opinion I have made reference to the HCR-20 V35 structured professional judgement tool which has been widely used clinically and in research to assess risk for violence. This tool identifies historical, largely unchangeable factors associated with violence risk, current clinical factors and anticipated future risk management items which are more amenable to change. These tools aid in the identification of fluctuating risk factors, which moderate the overall risk. There is strong correlation between the HCR-20 V3 and the VRS (used in the report of Ms. Tulloh) in terms of violence risk prediction. There is also strong correlation with the V-RAG. The V-RAG-R is newer and has less comparison studies, however is similar to the V-RAG in items rated. I concur with the scoring of the V-RAG-R by Ms. Tulloh.

[Footnotes omitted. Emphasis added.]

(Professional judgment tools and actuarial measures shall hereafter be described as “tools or scales”).

60. Before turning to the balance of his opinion, reference may be made to some issues relating as to this aspect of his evidence and the reliability of the overall opinions he expressed as to the risk of commission of a further serious violent offence (although no challenge was taken to the admission of his report). It was accepted that Dr Ellis had used the structural professional judgment tool HCR-20 V3 and his clinical judgment but it was contended that tool (and more generally, tools and scales) was not capable of assessing the likelihood of whether the defendant would commit further serious violent offences as opposed to a general violent offence. There was no evidence of the defendant committing a further serious violence offence. Hence, it was submitted Dr Ellis’ report could not be taken as one concerning the probability of the defendant committing a serious violence offence. As to his clinical assessment, he accepted that tools give a “better impression” or basis for assessment.

61. Dr Ellis was cross-examined as to the use of tools and clinical assessments and gave the following evidence:

Q. There is no actuarial assessment that can be undertaken to determine whether a person is at risk of committing a serious violence offence, is there?

A. I am not aware of any statistical method that could predict that kind of offence, the reason being that kind of offence is rare using statistical prediction you can only ever predict at a group level and for more common events, so.

Q. And putting aside actuarial assessment, there is no clinical assessment that can predict the commission of this specific category of specific category of serious violence offence, is there?

A. It depends on how you are using the word prediction because you could not accurately, I mean there is no, there is no method that I am aware that can predict an individual human behaviour at a specific point in time and do that. It is, the process is more from a clinical point of view, is more about looking at risk factors associated with that kind of behaviour and attempting to manage that on a given population level to reduce risk of violence, but you could not predict it with the sense that you can predict. You could, you just cannot predict an individual event like that.

[Emphasis added.]

62. It is true that, as Dr Ellis recognised, the structured professional tool he employed, or for that matter tools or scales, do not assess or predict for serious violent offending which results in serious injury or “legal consequences”.

63. However, as Dr Ellis opined in his report, HCR-20 V3 is widely used clinically and in research in assessing the risk of violence and is strongly correlated to the Violence Risk Scale (“VRS”) and V-RAG. Further, those tools allocate individuals with particular characteristics to risk groups and those groups have been identified as possessing greater or lesser numbers of persons within the group as re-offending, even though there is no discrimination between a particular risk group who re-offend and those who do not.

64. As to clinical opinions, in my view, the defendant has misunderstood the purport of Dr Ellis’ report, in this respect, for two reasons.

65. First, Dr Ellis qualified his statement that the tools or scales are superior to clinical impressions by the use of the word “unaided”. He was clearly referring in that respect, to clinical opinions without the assistance of tools or scales. It is evident from the balance of his report that he has employed his clinical judgment with the aid of tools or scales.

66. Secondly, Dr Ellis’ evidence as to clinical assessment was that it was limited, as may be expected, in a capacity to predict an “individual behaviour at a specific point in time” but that it was adept at evaluating “risk factors” in the light of evaluative tools (Dr Ellis referred to “a given population level”). They were adept at evaluating and making recommendations for the management of risk.

67. As will be discussed below, in terms of the balance of Dr Ellis’ report, the examination of the risk of violence (and its management) was undertaken in that light and extends to both the propensity to re-offend and the likely nature or character of that offending.

68. Ultimately, I do not consider the evidence of Dr Ellis, a court appointed expert, may be described as unreliable as to any opinion given in his report or his viva voce evidence. There was, in fact, no proper basis, in terms of the opinions expressed, to establish such a contention. Nor do I consider the weight attaching to those opinions is diminished by the factors raised by the defendant when the opinion expressed is understood as representing a combination of clinical assessment and use of tools or scales (within the limit of the predictive capacity of such instruments).

69. An issue was also raised by counsel for the defendant as to whether there was a causal connection between the defendant’s mental illness, namely, schizophrenia, and the risk of further violence offences. Reliance was placed upon a finding of Ellis DCJ, with respect to the offence, rejecting a mental impairment defence for the defendant, notwithstanding psychiatric reports dealing with that issue.

70. During closing submissions, it was contended: “Dr Ellis was perhaps referring to the not guilty mental impairment defence. Of course, that's not what Judge Ellis was concerned with. He was just using the ordinary meaning of ‘causal connection’ for the purposes of determining whether it would reduce moral culpability for the sentence”. It was then submitted that the defendant sought to tender at the trial of the offence a report, which suggested that the offending was causally connected to the defendant’s mental illness, however, the trial court ultimately rejected that submission and found it was not. In that light, counsel for the defendant submitted:

So to the extent that your Honour needs to make a finding about whether or not his risk of violence is related to his mental illness, the sentencing judge considered that it was not, it had nothing to do with the violence on that occasion.

71. In his report, Dr Ellis opined: “[t]here is some epidemiological data to suggest persons with schizophrenia are more prone to serious violence”; the defendant has a “history of schizophrenia associated with violence” and “his psychoactive disorders are chronic and likely to present beyond any period of supervision, but may be better internally controlled at this point”.

72. During cross-examination, Dr Ellis expanded upon his clinical opinion as to the connection between the defendant’s diagnosis of schizophrenia and his engagement with violent acts: “from a clinical and risk assessment point of view, having a diagnosis of schizophrenia is a risk factor for future violence”. The relevant part of Dr Ellis’ evidence during cross-examination, in relation to schizophrenia, is extracted below:

Q. Just continuing over the page at page 12. You say he has a history of schizophrenia associated with violence. What's the basis of that opinion?

A. Yes. That's the basis of the, that he has, whilst the diagnosis has been there whilst he's had symptoms of schizophrenia, that he's engaged in violent acts.

Q. You're aware that the sentencing judge expressly found there was no causal connection between any mental illness and the acts on this occasion?

A. Yes. And again, that's a legal connection, but from a clinical and risk assessment point of view, having a diagnosis of schizophrenia is a risk factor for future violence.

Q. Did he have a diagnosis of schizophrenia at the time of the index offence?

A. He didn't have a formal diagnosis but if you look in retrospect from now, it's likely that he had symptoms of schizophrenia at the time.

Q. So the only occasion of a history of schizophrenia associated with violence is the index offence from 2012?

A. And any violence in custody subsequent.

73. It is not entirely clear how the defendant contends the findings of Ellis DCJ, made in a completely different context, could impact upon my findings in this matter as to the relationship between the defendant’s mental illness and risk. Dr Ellis’ opinions had regard to evidence as to the mental impairment defence and the findings of Ellis DCJ. It did not alter his opinion, which he described was based on his clinical assessments. Further, Dr Ellis gave an expert analysis of the significance of the defendant’s mental health as to the question of risk. Dr Ellis opined that there was a relevant connection between his diagnosis and the question of risk. It may also be noted that Dr Ellis commented that the defendant had no formal diagnosis of schizophrenia at the time of the offence but it was likely he suffered from the condition at that time. He was not asked what relationship existed between that condition and the offence but he commented on the connection between that condition and the risk of future violence. Dr Ellis was plainly of the view that schizophrenia contributed to his violent offending, behaviour in custody and was applicable in assessing the risk of further violent offending.

74. Dr Ellis considered that "[t]he mainstay of effective risk management in this case is treatment of [the defendant's] schizophrenia". He considered antipsychotic medication, psychological treatments, substance use treatment and vocational activity would reduce the likelihood of the defendant re-offending over time. Dr Ellis, in that respect, opined:

The treatment and supervision plan generally addresses the relevant risks posed in this case. The supervision scheme is such that deterioration can be detected early, and interventions applied which could manage the situation presented. It is agreed that the supervision and monitoring has limitations, and could never eliminate the risk posed, however would likely significantly reduce it.

75. There is no countervailing expert opinion to that given by Dr Ellis and I accept it. Some other matters arising from Dr Ellis’ evidence should be mentioned before returning to the balance of his report.

76. First, as to the possibility of the maturation of the disorder, in the context of the defendant, Dr Ellis opined: “it's difficult to say. It's going to have to be by observation … his best chances for having better neural function is if he remains on antipsychotic treatment and if he's abstinent from substances, and that's going to give him his best chances of getting that maturation of impulse control that comes with the maturation of neural structures”.

77. Secondly, Dr Ellis observed that the defendant's substance use disorder was currently in remission under the interim supervision order. In re-examination, Dr Ellis commented on the interaction of illicit substances with the defendant’s current prescribed medication. He opined it was “[l]ikely to make that medication less effective, and it would likely increase his experience of symptoms of mental illness, increase his experience of hallucinations and delusional beliefs.

78. Thirdly, Dr Ellis considered that intoxication and psychotic symptoms elevate the defendant's risks by increasing the possibility of fear and anger during an assault.

79. Returning to Dr Ellis’ report, he then dealt with various historical factors as follows:

There is a clear history of problems with violence beginning in adolescence by his criminal record and persisting in adult life evidenced in the criminal and institutional record. This is accompanied by persistent other antisocial behaviour evidenced in the record, both in adolescence and adult life. There is a history of problems in relationships with limited intimate relationships and a difficult relationship with his mother including domestic violence charges noted in the documents. The index violence is related to interpersonal dispute. There is a poor record of employment. Serious substance abuse is clearly associated with his pattern of violence. It is often remarked that he is intoxicated during offences. He does not have a diagnosis of antisocial personality disorder, however this is provisional, and he had conduct problems in childhood before the development of substance use and mental illness. He was exposed to problems of parental mental illness in his childhood. The notes from the VOTP indicate he held attitudes supportive of violence across his lifespan plus there is evidence of weapon carrying. He has a history of schizophrenia associated with violence. He has failed on previous conditional supervised release. This indicates a high loading of historical risk factors associated with violence in the longer term, compared to the general prison population.

He currently displays unsophisticated insight into his propensity for violence but does display understanding of need for treatment and management. His impoverished account of the index offence most likely relates to poor memory and denial related to his mental conditions. While this poor insight might be concerning in a person without his mental conditions, in this case it has not reduced his commitment to treatment, therefore of lesser relevance. He does indicate an intention to accept treatment and rehabilitation now, however there is yet to be a record of sustained participation. He does not currently display any attitudes that support violence. He shows some instability of mental state currently with attenuated hallucinations. He does not have identified stress management techniques. This indicates a moderate - high loading of modifiable risk factors that render internal control of baseline historical risk problematic.

80. Dr Ellis accepted that the defendant’s criminal record relevantly consisted of a juvenile common assault and the offence (noting the AOABH charge recorded on Form 1 in the proceedings relating to the offence).

81. There was also an occurrence of assault in an institutional setting.

82. As to relationship issues, Dr Ellis gave evidence of the difficult relationship the defendant had with his mother and a limited history of other relationships. It was accepted that relationship issues stemmed from the large amount of time the defendant had spent in custody. The HCR-20 V3 treats the defendant as being institutionalised. The lack of relationships is problematic.

83. As to the absence of an intimate relationship, noting the defendant has been in custody for the vast majority of his life, Dr Ellis confirmed that factor remained relevant to risk assessment:

It does, and specifically the HCR-20 goes into the fact that if you are in effect institutionalised and have had no opportunity for relationships, that in itself, at a group level, is problematic.

So if you look at groups of people who have not had to navigate and negotiate into personal relationships, it is on release more difficult and so it is of some consideration in the context of all the information, and, but I would accept that he has not had the opportunity to form relationships but that then does not mean, it means that he then loses that protective factor of having formed and maintained relationships. So it is, particularly if I am using this kind of scheme, the HCR-20, that you would have to take into account the periods without relationships where someone is incarcerated.

84. Dr Ellis gave similar evidence in relation to the defendant’s poor record of employment:

Yes, again that is taken into account with this kind of scheme that it includes if a person has not had the opportunity for employment it is as much of a risk factor as if they had the opportunity and did not use it.

85. Dr Ellis opined there was a moderate – high need for professional services and plans to control the potential for violence. Further, he opined that as the defendant is “still relatively young” that factor indicates “that maturity has yet to impact on reducing risk”.

86. Under the heading, “Risk of Commission of a Further Serious Violence Offence” in his report, Dr Ellis’ ultimately reached the following conclusion:

A consideration of the type of possible violent offence should be considered in an estimation of risk. In the case of [the defendant], given the past pattern of serious violence, victims are likely to be adults with whom he has some interaction and conflict, but can also include strangers in the context of an acquisitive offence or public intoxication. Psychotic symptoms may be present during intoxication, increasing his fear and anger during an assault. The most likely violent acts would be impulsive and without weapons. The history of sustained physical attacks and weapon carrying render the chance that violence he engages in could escalate to a serious level where physical injury is foreseeable.

In considering structured professional and clinical parameters in the absence of any treatment or supervision, [the defendant] would fall into a group of persons with a risk for violent offending offending [sic] that is statistically high in frequency with potential for serious consequence in his specific case, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.

87. It was put to Dr Ellis that the “past pattern of serious violence” to which he referred was the common assault as a juvenile, the offence and the assault in custody. Dr Ellis referred to this as a “limited pattern” (or alternatively a “past history”) but the defendant has had “limited opportunity”. Dr Ellis categorised the offence as “serious” and accepted that was the single occasion of a serious offence. He also agreed the use of weapons was confined to the offence (although no finding was made as to who used it) and a separate conviction for possession of a knife.

88. It was also submitted that Dr Ellis was not expressing in the first paragraph in [86] above, a view as to the probability of the defendant committing a further serious violence offence.

89. It is true that Dr Ellis does not per se express a conclusion as to the risk of the defendant committing a serious violence offence as defined under the Act. However, under the heading “Risk of Commission of a Further Serious Violence Offence”, he was dealing with, inter alia, a specific question posed of him: “Does [the defendant] pose a risk of committing a further serious violence offence? If yes, please describe the level of risk and factors contributing to that risk…”. Dr Ellis’ opinion, in that respect, was essentially twofold:

1. The defendant falls within the group of persons having a high risk of violent offending (in terms of a statistically high frequency) with the potential for serious consequences (as will be discussed below Dr Ellis also opined that, in the absence of treatment and management, the defendant represented a risk of serious harm to himself and the community).

1. The potential consequences of such further offending are physical injury resulting from physical attacks on adults with whom he interacts but also potential strangers. The most likely violent act would be impulsive without weapons but his carrying of weapons contributes to the risk of serious violent offending (Dr Ellis later commented that the carrying of knives was a common response to persecutory beliefs (noting, as well, the “shiv” he made in custody). Specific treatment and supervision would reduce that risk.

90. There is a further issue raised by the defendant regarding the Mental Health Act2007 (NSW) to which I will now turn.

91. During cross-examination, Dr Ellis was asked to consider the alternative means of regulating the defendant’s mental illness (and risks) by treatment including “involuntary treatment” under the Mental Health Act. Counsel for the defendant, in submissions, relied upon an alternative regime under the Mental Health Act, “which is available to manage any risk the defendant might pose (or may in the future pose) to himself or the community because of such illness”. In the context of the application of the Mental Health Act, Dr Ellis gave the following evidence:

Q. Do you consider that [the defendant] would meet the criteria for involuntary treatment under the Mental Health Act?

A. There's another arm that has to be met, that is, that there's no less restrictive environment that's safe and effective, so whilst someone might have a risk of serious harm, if they voluntarily enter into treatment then the act ordinarily doesn't apply.

Q. But let's just deal with the first criteria?

A. Yes.

Q. Do you think he poses a risk of serious harm to himself or the community?

A. If he were to not be engaged in his current treatment then I would have concern, and that I would be concerned and, you know, consider the use of the Mental Health Act in his case, but while a person has sufficient insight to engage in voluntary treatment that manages that risk then the practice would be to engage the person as a voluntary patient.

Q. And when you say "treatment," that's psychiatric treatment?

A. So - and psychiatric treatment in the broad sense, which is medications, psychological counselling, social therapies. They need to be used together.

Q. He's compliant with treatment at the moment, so far as you're aware?

A. Yes.

Q. So in those circumstances, would you consider him to be a risk of serious harm to himself or the community?

A. While he's engaging in the current management, the risk that he poses is managed, so he doesn't present as a risk of serious harm. It's the circumstance where if you were to strip away that treatment and management that he's currently doing that you would become concerned.

Q. And if he doesn't comply with his treatment one of the options available to his treating clinician is to seek an order under the Mental Health Act to mandate such treatment?

A. That's correct.

92. The defendant made submissions as to the operation of the Mental Health Act and its significance to the Court’s present deliberations. It was contended that test prescribed by s 14 of the Mental Health Act was significant for the evaluative judgment required under s 5B(d) of the Act. The submissions had, as their foundation, the evidence of Dr Ellis.

93. During the course of submissions, with respect to the Mental Health Act, counsel for the defendant also referred to an alternative regime under that Act, which is available to manage any risk the defendant might pose (or may in the future pose) to himself or the community because of such illness. Further, the following submissions were advanced as to the significance of the application of the Mental Health Act to the defendant in this case:

1. The provisions under the Mental Health Act mean that there are other mechanisms to ensure that the defendant’s treatment to prevent harm, including the mechanisms that allow clinicians to seek orders under the Mental Health Act, should the defendant desist from treatment. It was contended that such a fact should militate against the making of an order in this Court, namely, due to “the availability of alternative mechanisms to manage his risk”. The provisions of the Mental Health Act allow for appropriate measures to protect the defendant in the community.

2. If there was no such order available, under the regime of the Mental Health Act, the Court might have more concerns, it was submitted, about what would exist if this order were not made. Thus, the regime under the Mental Health Act provides a less restrictive means of managing the risk.

3. Turning specifically to the test contained in s 14 of the Mental Health Act, which is that "care, treatment or control of the person is necessary… for the protection of others from serious harm", is a lower threshold – it is a lower test than what applies in this Court. In that light, it was submitted:

Your Honour has to be satisfied to a much higher standard than that. And the doctor's evidence was, he doesn't currently meet that test. That must be somewhat persuasive in terms of whether the Court would be satisfied that he meets the test in this case, given the much higher hurdle the State has to meet.

4. Emphasis was placed upon the “coercive powers” that exist under that Mental Health Act, which include, inter alia, powers to apprehend (e.g. police can collect and take a person to hospital), scheduling powers and the power to mandate community treatment.

5. Returning to the evidence of Dr Ellis, it was further submitted:

The question I asked him, your Honour will see that the test that's contained in section 14 is whether care, treatment or control of a person is necessary for the person's own protection from serious harm or for the protection of others from serious harm. And if a person meets that definition, actions can be taken under the Mental Health Act. As I understand it, Dr Ellis' opinion was that, at present, while treated, he doesn't meet that definition, but if he were to cease treatment, he may meet that definition in which case his clinicians could take action under the Mental Health Act.

94. In reply, the State advanced, correctly in my view, the following submission:

I'd like to deal with a submission in relation to the mental health regime. I invite your Honour to be very careful here, and your Honour would be well aware in the forensic order regime, which is the Court imposed orders on mental health patients that's governed by Schedule 1 of the Mental Health (Forensic Provisions) Act, and in that regime, clause 2, which is akin to the 5(b) clause, that's the section before your Honour, which is the section that says your Honour "must consider whether the forensic patient poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient"

The risk cannot be adequately managed by other less restrictive means, they are the two considerations in the forensic regime. I mention that, your Honour, because my friend had made the submission that there was the availability of an alternative mechanism to manage his risk which was less restrictive than the extended supervision order. With respect, there is no legal principle that, under the Crimes (High Risk Offenders) Act, where your Honour is invited to consider whether there is a less restrictive regime. Section 9(3) mandates a series of factors. None of those import the language that had been used in the forensic regime. I invite your Honour to hold that distinction to mind.

95. The defendant’s submission appears to be to the effect that the provisions of the Mental Health Act militated against the Court imposing an extended supervision order (or an affirmative order pursuant to s 5B(d)) if:

1. There are appropriate measures under the Mental Health Act to manage the risk including compulsory orders for treatment by less restrictive means; or

2. The defendant did not meet the criteria under s 14 of the Mental Health Act, which represents a lower base or criteria than that required under s 5B(d).

96. It is strictly unnecessary to decide this issue as it is predicated upon a misunderstanding of Dr Ellis’ evidence. However, it is appropriate to observe that the approach proffered by the defendant potentially invites error if it seeks to substitute, by direct or indirect means, a set of statutory criteria to those operating under the Act, particularly where the respective statutory schemes differ significantly.

97. However, as noted, the resolution of this issue may be dealt with shortly by reference to Dr Ellis’ evidence. When Dr Ellis was pressed to express an opinion as to whether the defendant met the statutory conditions for involuntary treatment under the Mental Health Act, Dr Ellis initially gave opinion of a general nature based upon a person having insight into voluntary treatment (noting the defendant was presently being compliant with treatment) may not require such restrictions. However, when pressed to consider whether the defendant would represent a risk of harm to himself or the community, Dr Ellis directed attention to not merely treatment but “treatment and management”. He opined that, if treatment and management were removed then there was a risk of serious harm to himself and the community. Clearly, Dr Ellis was referring to psychiatric treatment and management which must, in that context, be taken as supervision under the Act. Absent both elements the defendant represented a risk of serious harm.

98. Thus, as to whether Dr Ellis considers the defendant to be a risk of serious harm to himself or the community his answer, in my view, was straightforward: if under management, no; if not under management, yes. Counsel for the defendant concentrated upon his evidence as to treatment without taking into account the full effect of his evidence as to risk.

99. The defendant alternatively put a submission as to how the Mental Health Act might apply so as to submit it is a relevant consideration under s 9(3)(e1). When counsel for the defendant was subsequently questioned about that contention, it was submitted that she was not contending that the Act expressly mandated that the Court have regard to provisions of the Mental Health Act, but rather, “there are options available to the offender in the community whether or not under supervision that might, might, reduce the likelihood of the offender reoffending over time”.

100. Just how that might apply in the present context was not explained. It is not clear by that submission how some undefined treatment regime in the community might have any significant role to play in making the required determination under s 5B(d) or s 9(1) of the Act. It was not suggested that absent an extended supervision order that any restraints would apply to the defendant in the community, other than perhaps regular treatment by psychiatrist, psychologists or counsellors. It was also not suggested that the defendant would be the subject of any involuntary treatment order either in an institution or in the community. In any event, Dr Ellis’ opinion was that “management” was required to control the risk of serious harm to the community.

101. Finally, as to the 2017 wounding charge, counsel for the defendant contended that, notwithstanding the State “disavowed reliance upon” any evidence with respect to the withdrawn charge, Dr Ellis confirmed in evidence that he did have regard to this charge in forming his opinion. Counsel for the defendant, in this respect, submitted:

I understand the plaintiff's submissions that they were given little weight. With respect, I don't think the evidence quite flowed that way. Certainly for Dr Ellis, he said that he had regard to them. He talked about three categories; that there were events which resulted in convictions, there were allegations which did not result in convictions, and there were periods of time where a person wasn't subject to any - I think he said didn't come to the attention of police.

…

So he's used the fact that he's come to notice of police as part of his assessment process. So he has used it in some way in terms of that process [referring to Dr Ellis’ use of actuarial tools and his conclusions thereof].

102. During cross-examination, Dr Ellis opined that the 2017 wounding charge fell, in his view (and for the purpose of his report), within a second category: “people who are at conditional liberty and there may be some either technical breach which does not break the law or they have been charged with an offence”.

103. Dr Ellis confirmed in re-examination, however, that he placed “limited weight” upon that factor in his assessment. He also confirmed the limits of its relevance within his assessment process, as the charge occurred in circumstances when the defendant was on conditional liberty “that [factor] is an association with risk of further violence in the literature in a general sense, so I considered it in that form”. In my view, the defendant’s submission, in this respect, was an incorrect characterisation of Dr Ellis’ evidence. He gave the 2017 wounding charge little weight in his assessment.

Ms Howell’s evidence

104. Ms Howell interviewed the defendant on 23 October 2018 for two and a half hours.

105. Ms Howell opined that absent supervision the defendant poses a high risk of committing a further act of serious violence.

106. Ms Howell assessed the defendant under the VRS. Her opinion in that respect was as follows:

[The defendant’s] score on the VRS places him in the high risk category to reoffend. Consideration of his dynamic risk factors suggest the following factors are relevant: chronic substance abuse issues, cognitive distortions, emotional control, impulsivity, criminal peers, lacking insight into violence, use of weapon and failed compliance with community supervision.

107. Ms Howell, with regard to the defendant's substance use disorder, stated the following:

1. "[the defendant's] long standing drug use is concerning as it appears to disinhibit his behaviour and places him in contact with anti-social peers"; and

2. "[the defendant’s] substance abuse is a critical risk factor as it underpins his capacity to moderate interpersonal aggression, emotional regulation, decision to carry a weapon and decisions regarding the use of violence”.

108. Ms Howell accepted that it was “not scientifically possible to predict whether or not an individual will or will not reoffend” and that “psychological risk assessments are conventionally based on an analysis of both static and dynamic factors”. Her assessment of the defendant’s risk was as follows:

[The defendant’s] [VRS] score was calculated on his criminal history and from the degree of verification to the accuracy of the information I was able to obtain from [the defendant] at interview. Assessment of [the defendant’s] static and dynamic risk factors and clinical assessment support the view his future risk of violent offending is within the high risk range. It is my understanding that [the defendant’s] estimate of risk was reduced following his completion of the VOTP program in custody.

The VRS was completed with [the defendant] on 15 February 2018 following [the defendant’s] offending behaviour in the community. At that time, he was found to fall into the high risk range. Similarly, it is my view that [the defendant] has a high risk of committing a further serious violence offence.

109. As to the defendant’s violent offending, Ms Howell confirmed that she did not take into account childhood offending. Thus, any reference to his “risk factor for his violent offending” referred only to “the index offence”.

110. Ms Howell also described the defendant as “socially isolated” and observed that to be “a serious current factor” impacting upon his risk.

111. Ms Howell commented that the defendant had difficulty identifying protective factors to her that would reduce his risk of further offending.

112. Ms Howell considered risk management strategies would need to focus on drug and alcohol treatment and oversight of that treatment.

113. In answer to the question “To what extent if at all is your view of the risk of reoffending by [the defendant] affected by [the defendant’s] attitude to the offences”, Ms Howell responded:

Whilst [the defendant] did not rationalise his violent behaviour during the assessment I note that pre and post his participation in, and completion of, the VOTP program [the defendant] justified and rationalised past violent offending. The report of [G]illian Tulloh, dated 14 March 2018, found “[the defendant] appears to hold implicit beliefs about the legitimacy of the use of violence and tends to blame others for provoking him rather than owning his behaviours”.

Following the completion of the VOTP program [the defendant] was assessed as demonstrating significant improvements in his ability to manage impulsivity and whilst he acknowledges difficulties with self-regulation in the community he indicated his intention to address this issue with his treating psychiatrist and general practitioner. [The defendant] also identified at least one of his relapses into drug use was associated with overwhelming feelings of anxiety and stress due to family concerns. It is my opinion that [the defendant] will need ongoing educational, emotional and psychological support to manage his attitudes to offending if he is to reduce his risk of reoffending.

114. Ms Howell did not diagnose the defendant with any psychiatric condition but noted that: "if [the defendant] does have a psychiatric condition, in particular drug-induced paranoid schizophrenia, it would be relevant to an assessment of his future risk of committing a serious violence offence".

115. Ms Howell stated that the 2017 wounding charge was given some weight in coming to her assessments but “not a lot” and significantly less than other factors. As to whether the exclusion of that charge would change her opinion, her answers were somewhat opaque (“No, I don’t think so” and “it doesn’t substantially change my opinion”). When asked to attribute the proportion of weight to give to the 2017 wounding charge Ms Howell stated that was not possible as instruments do not work in that fashion. She added:

It's really about - it's like things on a Form 1 in that sense that they don't have the same weight. You know, it's the way in which they are laid out. Things that are categorically provable, these are the things that actually have the weight in terms of looking at the instrument and as I say the instruments are blunt, but it does allow and does ask for what other history, what other risk factors are there, and a risk factor is if someone is charged with something even if doesn't proceed.

116. Her evidence as to this issue crystallised in the following questions and answers in cross-examination:

Q. And you would reach perhaps a different conclusion?

A. No, because it's not a significant ‑ it's not a significant ‑ this particular charge doesn't change the whereabouts of [the defendant] in terms of the instrument. It's not a defining or a deciding factor.

Q. It might not be a deciding factor but it has some weight?

A. Yes.

117. During cross-examination, Ms Howell was questioned at length about her conclusions as to the risk posed by the defendant. She confirmed the only “tool” she used was the VRS and noted its limitations, in particular, that it does not measure the risk of a “serious violence offence” per se (it concerned “any violence”). However, the VRS formed one part of Ms Howell’s clinical assessment of the defendant. She explained (in answer to a question as to whether she had confined her attention to risk to two factors – impulsivity and lack of understanding of the potential for violence):

[T]here's a totality of issues that go to making the decision. It's is not just a tick box of 1, 2, 3. It's a totality of issues. And I think in the report I put in the issues that I took into account in making my decision around where [the defendant’s] risk lies and I will just find those. When I did the VRS with [the defendant] the factors that I thought were relevant in terms of committing a further offence are chronic substance use issues, cognitive distortion, emotional – lack of emotional control or it's emotional control issues, impulsivity, criminal peers, lacking insight into violence. So I've listed here the things that I took into account, the totality of those.

272. In addition to the findings of Fagan J, counsel for the defendant also relied upon the evidence of Ms Coultas-Roberts. By her affidavit, Ms Coultas-Roberts noted the views of the defendant’s DSO, Ms Hollis, namely, that electronic monitoring would be detrimental to the defendant’s supervision. However, that evidence was contradicted by Ms Hollis in her affidavit sworn 26 November 2018. Ms Hollis deposed: “I do not recall tell[ing] Ms Coultas-Robert that electronic monitoring would be detrimental. I stated that the defendant finds it difficult to comply with the times of his schedule, and had asked whether electronic monitoring would be a component of the extended supervision order”.

273. The State relied upon the recent fact of the defendant’s disappearance in September 2018 to support the imposition of the condition, notwithstanding the remarks of Fagan J. It was contended that such an occurrence compromised the safety of the community, particularly as the defendant's mental health had declined at that time. However, as counsel for the defendant pointed out, the defendant was on parole at the time – he was not subject to an interim supervision order. Further, he was taken to a hospital in a delusional psychiatric state. The circumstances of the disappearance do not suggest the defendant’s conduct was in any way deceptive. I agree with the finding of Fagan J. I do not impose conditions as to electronic monitoring.

Scheduling

274. For the same reasons identified by Fagan J above, counsel for the defendant contended there was no reason for the defendant to submit a schedule of movements for the following reasons:

1. his risk is not correlated to being in any particular place;

2. there remains a power pursuant to proposed conditions 3 and 17 for the defendant’s DSO to direct him not to attend any place if any issue arises; and

3. the defendant is already obliged to report where he has been in accordance with proposed condition 9.

275. Counsel for the defendant also submitted that the defendant does not dispute the making of proposed condition 18, which would prevent him from attending any place that he knows drugs are illegally sold.

276. The State pressed the conditions as proposed with respect to a schedule of movements. It was submitted schedules provide structure, which in turn reduces the risk of impulsive violence. It also encourages pro-social activities and enables the ESO Team to monitor the defendant’s associations with criminal peers.

277. Further, it was submitted that “[t]hese conditions work together with electronic monitoring to ensure the defendant is where he says he will be”. However, in the event the Court was not minded to impose electronic monitoring, the State contended: “there is an even greater need to have a weekly reported schedule to know where the defendant is and to monitor his risk factors”.

278. Reference was also made to the evidence of Ms Farroway and the OIMS notes as to the fact that the conditions can and have been flexibly applied.

279. I find the conditions, in this respect, as sought by the State to be appropriate. The imposition of a schedule provides structure and encourages pro-social engagements, which reduce the risk of the defendant re-committing another serious offence, particularly one of impulsive violence.

Curfew

Condition 11: The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.

280. As to proposed condition 11, the defendant contended that there was “no evidence for why such condition is necessary”. It was also submitted, whilst the offence was committed after midnight, “there is no pattern of offending involving a risk with the defendant being absent from home between 9am and 6am”. Thus, such condition may be described as “significantly oppressive” and “it may prevent him from engaging in activities that result [in] proper reintegration in the community (which may, in fact, reduce any risk of reoffending)”.

281. The defendant proposed the following alternative wording: “If a DSO directs him to do so, the defendant must be at his approved address between 9pm and 6am”.

282. In reply the State relied upon the evidence of Ms Hollis, who gave evidence as to the success of curfew enabling a better management of the defendant on the interim supervision order and thereby reducing his risk.

283. The paramount consideration for the Court is the safety of the community: s 9(2). The State contended that the curfew condition justifiably and reasonably addresses the defendant’s risks with the flexibility of permitting the relaxation of the curfew if the defendant specifically seeks that exception. Risky scenarios are engaged in at night and his associations with criminal peers is a risk. Curfew is still able to be applied flexibly at the discretion of the DSO on the current wording.

284. I consider condition 11, as formulated by the State, to be appropriate essentially upon the basis of the factors relied upon by the State.

Accommodation

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

285. As to proposed condition 13, the defendant contended that there was “no evidence for why such condition is necessary”. It was also submitted, whilst the offence was committed after midnight, “there is no pattern of offending involving a risk with the defendant being absent from home between 9am and 6am”. Thus, such condition may be described as “significantly oppressive” and “it may prevent him from engaging in activities that result [in] proper reintegration in the community (which may, in fact, reduce any risk of reoffending)”.

286. The defendant proposed the following alternative wording: “If a DSO directs him to do so, the defendant must not spend the night anywhere other than at his approved address”.

287. In response to the alternative wording, the State submitted:

The difficulty of the proposed wording is that it may in effect work to the detriment of the defendant. If such a direction is given by the DSO it would arguably need to be given as a blanket prohibition or alternatively the proposed wording presupposes a level of knowledge regarding the defendant seeking to spend the night somewhere.

The condition in the amended summons addresses the risk of associating with criminal peers but in its wording proposed by the plaintiff enables the defendant to have a dialogue with his DSO about seeking an exception. That conversation would invite consideration of risk.

288. I consider condition 13, as formulated by the State, to be appropriate essentially upon the basis of the factors relied upon by the State in response to the defendant’s alternative version of condition 13 and having regard to the expert opinion as to risks associated with engagement with criminal peers.

Condition 14: The defendant must not permit any person to stay overnight, at his approved address, without the prior approval of his DSO.

289. The State, in this respect, relied upon its submissions advanced in relation to condition 13, in particular, it was submitted that the condition served “to monitor the same risk of associating with criminal peers”.

290. Counsel for the defendant submitted, correctly, that the defendant has not committed offences of any sexual nature. In the absence of such evidence, there is no proper basis to mandate the inclusion of condition 14 in any extended supervision order. Such a condition, it was submitted, is “a significant curtailment of the defendant’s [and his grandparents’] lawful rights”. I also accept that submission, if there is added the consideration that the condition would not seem to achieve the same benefit of risk avoidance as found in condition 13.

291. I do not accept the State’s submission as to condition 14. In the particular circumstances of the defendant, there is no proper basis under the Act for the imposition of such a condition.

Employment, Finance and Education

Condition 20: The defendant must not start any job, volunteer work or educational course without notifying his DSO

292. Counsel for the defendant opposed the inclusion of condition 20. It was submitted that “the defendant does not have any history which would suggest his working or volunteering would result in an increase of risk for the commission of a serious offence. If anything, it would be likely to ameliorate such risk”. Further, it was contended that “[t]here remains no evidence that by the defendant undertaking employment, educational courses or education would increase the risk of the commission of an offence and so the condition is unnecessary”.

293. In reply, the State submitted: “[n]otification of where the defendant is working or volunteering or studying enables the ESO team to conduct any necessary checks and risk assessments”. Reference, in this respect, was also made to the evidence of Ms Farroway in her affidavit affirmed 7 August 2018 (para 71).

294. I accept the submission of the defendant in this respect. The State has not established the effectiveness of this condition in addressing risk in this case. The condition is unnecessarily intrusive. I reject condition 20.

Drugs and alcohol

Condition 25: The defendant must not enter any licensed premises he knows or ought reasonably to know are licensed without the prior approval of his DSO.

295. Counsel for the defendant contended that condition 25, notwithstanding the subsequent amendment by the State to include the words “he knows or ought reasonably to know”, is likely to result in significant oppression to the defendant and, in fact, reduce the likelihood of successful reintegration after a long custodial sentence. This was supported with reference to the commonplace in modern society for “many places are licensed including, inter alia, many cafes and restaurants and most cinemas”. Thus, it was contended that the current wording is not well-tailored if the primary purpose is to avoid the defendant consuming alcohol, which, it was submitted, is already adequately dealt with by conditions 22, 23, 26, 27 and 35.

296. If the Court was minded to impose such a condition, the following alternative wording was proposed by the defendant: “The defendant must not enter any hotel or public house without prior approval of his DSO”.

297. The State contended that the alternative wording proposed by the defendant was “ambiguous as to what risk is being addressed”. It was contended that the State’s formulation of the same condition was justified as a condition imposed to monitor “his use of alcohol and ensure the defendant avoids places that may encourage his high risk scenarios”. Further, the State reminded the Court that the offence occurred at night at an RSL where alcohol was served.

298. The State submitted: “[t]he condition per the amended summons addresses the original concerns of the defendant. He will not be breached if he has entered somewhere where he could not have known was licensed”.

299. There is clearly a strong relationship between the defendant’s consumption of alcohol and the risk of violence or a further serious offence. Further, the condition is designed to avoid that which is likely to be productive of high risk scenarios.

300. After consideration of both alternative formulations, by the respective parties, within the circumstances of the risk identified, I reached the view that further amendment was appropriate to allow for some additional latitude, particularly in light of the age of the defendant. The condition proposed is designed to tailor the condition to avoid the defendant consuming alcohol whilst providing reasonable opportunity for him to engage in pro-social activities and reintegrate into society. Accordingly, the words “other than cafes and cinemas” was added as follows:

The defendant must not enter any licensed premises, other than cafes and cinemas, he knows or ought reasonably to know are licensed without the prior approval of his DSO.

[Emphasis added.]

Non-association

Condition 30: The defendant must not associate with any people who he knows or ought reasonably to know will be or are consuming or under the influence of alcohol (except his grandparents) without the approval of his DSO. The defendant must obtain that approval as soon as the defendant knows or becomes aware that persons (other than his grandparents) he is associating with are or will be consuming alcohol.

301. Counsel for the defendant repeated her submissions, in this respect, in relation to condition 25. It was submitted that, notwithstanding the State’s amendment to include “other than his grandparents”, the condition creates an impediment upon the defendant’s ability to successfully reintegrate into society. Counsel for the defendant expanded upon this impediment, it was contended that the condition prevents “the defendant [from] sharing a dinner table at his house if a guest or family member is drinking a glass of wine”.

302. In reply, the State advanced the following submissions:

1. Condition 30 still allows for the defendant to be able to be present with someone drinking alcohol, but requires that approval from the DSO is simply required first. As to the example of a dinner guest, “[i]f the defendant knows there is a dinner guest coming it would be sensible to advise the ESO Team who would likely grant the exception”. The State noted, in this respect, that the ESO Team would be expected to approach their task “with constructive pragmatism”.

2. As to the particular wording suggested by the State, “it allows a general exception for the grandparents which enables the more ordinary circumstance of the grandparents drinking alcohol in his presence to occur without approval”.

303. The condition is appropriate to manage the risk associated with alcohol consumption and for the reasons addressed by the State as summarised above. I do not consider that the condition will impede his reintegration into society as I expect it will be applied by the extended supervision order with a constructive pragmatism (consistent with the demonstrated approach of that team in this matter).

304. Condition 30 in the terms proposed by the State is appropriate.

Mobile phone and electronic communications

305. As to conditions 36, 37 and 40, counsel for the defendant relied upon the findings of Fagan J at the preliminary hearing:

Conditions 36 to 40 of the proposed Interim Supervision Order as sought by the plaintiff concern the defendant's use of mobile phones and SIM cards. These orders envisage that the defendant would be required to provide his Departmental Supervising Officer with a list of all mobile phone devices and SIM cards, and that the DSO would be permitted to inspect remotely those phones and to monitor his activity on any device. The conditions would also require that the defendant follow directions of the DSO with respect to access to the internet on any tablet or data storage device or computer. By cl 39 it is proposed that the DSO should be able to require the defendant's telephone carrier or internet service provider to share information concerning his accounts.

306. As to the same, Dr Ellis gave the following evidence at the final hearing:

Q. That's the Court's concern. How does the defendant permitting those supervising him to look at his electronic devices manage his risk of the commission of a serious violence offence?

A. I think this would be mainly in looking at who he's associating with, because the main risk of association, if you're associating with people who endorse the use of violence or endorse general criminal behaviour that's, if you're associating with people who reinforce those ideas with you, your risk of violence may increase.

A similar would be if you are associating with people who use substances, so I think that would be the main rationale for looking at who you're associating with, and so your online activity gives some indication of that.

307. Counsel for the defendant also noted, “[t]o the extent that it is relevant, the defendant [presently] has no telephone or access to the internet. Therefore, there has also been no cause for concern about his access to the same”.

308. The State contended that such conditions permit oversight, particularly in the event the defendant acquires a phone, as to “who the defendant is associating with and monitors whether he is engaging in the purchase of drugs”.

309. It was conceded that an earlier formulation of the Schedule attached to the summons “went further than what was necessary to address risk”.

310. In having regard for the remarks of Fagan J at the preliminary hearing, notwithstanding the subsequent amendments by the State, I find his Honour’s remarks, with respect, to be appropriate and correct. I reject conditions 36, 37 and 40.

Search and seizure

311. Counsel for the defendant submitted, in this respect, that the risk the defendant poses does not appear to be correlated in any way to his possession of anything (such as child pornography). Further, since the interim supervision order was imposed, the premises in which the defendant resides have not been searched. In that light, it was contended “[t]here appears therefore to be limited, if any, need for such a condition”.

312. It was also submitted that the condition is “likely to adversely impact upon the rights of third parties, including the defendant’s grandparents with whom he resides”. Counsel for the defendant contended that the level of invasion of the defendant and his family’s privacy is not necessary to meet any identified risk.

313. The State pressed for the inclusion of such conditions based upon the identified risk of the defendant, namely, “his proclivity to possess weapons or take illicit substances”. Thus, conditions with respect to search and seizure provide a means of oversight of that risk.

314. I do not accept the submissions advanced by the defendant. In light of the risks earlier found and the submissions of the State, with which I agree, in my view, conditions with respect to search and seizure are necessary to enable oversight and management of those risks.

Medical intervention and treatment

Condition 53: The defendant must agree to the persons referred to in condition 49/50 above sharing information including reports on his progress and information he has told them with each other and, with his DSO and with any other persons involved in his supervision only if that information is relevant to the defendant's risks of committing another serious violence offence

315. Counsel for the defendant contended that the imposition of condition 53, in the terms proposed, was likely to be “counterproductive to the defendant’s healthcare needs” by permitting the confidentiality he has with his health care professionals to be violated. Such circumstances, it was submitted, may impair that therapeutic relationship – particularly in the absence of the defendant’s “confidence in the confidentiality of such communications”.

316. In support of its exclusion, counsel for the defendant further submitted:

1. This is not a case where those supervising him need access to, for example, his sexual predilections as discussed with a medical practitioner in order to manage risk; and

2. There are well-established principles which permit patient information being shared if the patient is a risk to himself or others, which would be sufficient protection in the present case.

317. As to the subsequent amendment by the State to include the qualification: “only if that information is relevant to the defendant's risks of committing another serious violence offence”, counsel for the defendant accepted such an addition would “ameliorate to a significant degree to the defendant’s concerns”. However, the defendant maintained that “the phraseology of the condition is vague and would still have the effect of impacting upon the therapeutic relationship between the defendant and his clinicians as the defendant would not know what aspects of his otherwise-confidential communications would be disclosed as relevant to his ‘risk’”.

318. The State submitted that the wording per the amended summons addressed the defendant’s concerns. The phraseology was not vague. Ultimately, the condition justifiably and appropriately reduces risks addressing the paramount concern of safety to the community. That must prevail over the desire to ensure confidentiality of communication.

317. The Court imposed the following condition which represented an appropriate balance between maintaining the safety of the community as a paramount concern and ensuring that there is no unnecessary impairment to the therapeutic relationship between the defendant and those treating him:

The Defendant must agree to the persons referred to in 49 and 50 above sharing information with each other and the DSO as to the fact of his attendance at appointments and his overall progress in therapy, counselling or other treatment including the practitioner’s general opinion as to his development of insight into offending risk factors and, in particular, the Defendant’s risk of committing another serious violence offence.

Condition 49

320. The condition was not the subject of argument. The Court simply amended condition 49, to remove a typographical error with respect to the repeat inclusion of “any healthcare practitioner”.

DURATION

321. As for duration, the court appointed experts considered an extended supervision order of 3 years was necessary for the defendant to complete any drug rehabilitation program and to "refine the appraisal of risk". Dr Ellis also commented that 3 years may be a reasonable period of time for the defendant to consolidate a stable mental health state and have engaged in regular and meaningful activity in the community.

322. I shall fix the duration of the order made at 3 years.

CONCLUSION   

323. The orders made and entered with respect to this matter on 19 December 2018 were made for the foregoing reasons.

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Annexure A (312 KB, pdf)

Decision last updated: 30 April 2019