State of New South Wales v McGrath

[2016] NSWSC 1560

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v McGrath [2016] NSWSC 1560
Hearing dates:	24 October 2016
Decision date:	03 November 2016
Before:	R A Hulme J
Decision:	Psychiatric/psychological examinations to be conducted. Interim supervision order made.
Catchwords:	HIGH RISK OFFENDER – serious violent offender – preliminary hearing – application for interim supervision order – Crimes (High Risk Offenders) Act 2006 (NSW) – where risk assessed as medium-high but consequences of further offending would be drastic – order made
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 5A, 5E, 7, 9
Cases Cited:	Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 State of New South Wales v Brookes [2008] NSWSC 150 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Pacey [2015] NSWSC 1983 State of NSW v Manners [2008] NSWSC 1242 State of NSW v Sancar [2016] NSWSC 867
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Andrew Mark McGrath (Defendant)
Representation:	Counsel: Mr P Aitken (Plaintiff) Mr D Carroll (Defendant)   Solicitors: Crown Solicitors Legal Aid NSW
File Number(s):	2016/292800

Judgment

1. HIS HONOUR: The State of New South Wales (“the plaintiff”) filed a summons on 30 September 2016 by which it seeks various orders, principally and ultimately an order that Andrew Mark McGrath be made the subject of a high risk violent offender extended supervision order for a period of five years. The proceedings are brought under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").

2. The issue before me at this preliminary stage is whether I should appoint two psychiatrists, or a psychiatrist and a psychologist, to examine Mr McGrath and provide reports to the Court and whether Mr McGrath should be the subject of an interim supervision order when his current period of parole expires on 17 December 2016.

Preconditions to the making of orders

3. The State contends that Mr McGrath is a “high risk violent offender” within the meaning of the Act. He is a “violent offender” in that he committed an offence of murder when he was aged 19 years. He is a “high risk violent offender” if this Court becomes satisfied “to a high degree of probability that [he] poses an unacceptable risk of committing a serious violence offence if he … is not kept under supervision”: s 5E(2).

4. A “serious violence offence” is defined in s 5A. The definition is rather detailed but it is enough for the purposes of this case to say that it involves a person engaging in conduct that causes another person death or grievous bodily harm where the first person either intends to cause, or is reckless as to causing, death or grievous or actual bodily harm to the other person.

5. It is not my task at this preliminary stage to make a final determination that Mr McGrath is a high risk violent offender or to predict what the ultimate determination might be. The issue is whether I am satisfied that the matters in the documents tendered in support of the State’s application “would, if proved, justify the making of an extended supervision order”. If that is the case, I must make the orders the State seeks at this stage. If not, I must dismiss the application: s 7(4) & (5); Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98].

6. The test has been described as similar to the test applied by magistrates in committal proceedings: State of New South Wales v Brookes [2008] NSWSC 150 at [13]; State of NSW v Manners [2008] NSWSC 1242 at [8]. In the latter case, Johnson J said (at [9]) that “one purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision.”

7. In carrying out this task it is necessary to bear in mind the objects of the Act (in s 3) and to have regard, in the qualified way I have just described, to the various matters required to be considered in the ultimate assessment of whether an extended supervision order should be made; particularly the mandatory matters listed in s 9(3).

Mr McGrath’s index offence

8. Mr McGrath is a 37 year old man with a lengthy juvenile criminal history for crimes almost entirely comprising offences other than crimes of violence. However, he is currently on parole until 17 December 2016 for an offence of murder which he committed at the age of 19 in 1998. Briefly, the facts of that offence were that he travelled from Fennells Bay (Lake Macquarie) where he was living to Muswellbrook where he bashed a man into unconsciousness, or semi-consciousness, and then suffocated him with a tea towel.

9. Mr McGrath had given three versions of how he came to commit the crime but the sentencing judge, Grove J, found that his motive was the execution of a vigilante type of vengeance for the victim's assumed guilt of child abuse. His Honour also found that:

"[T]he prisoner's hatred was part of a wider, undiscriminating and obsessive hatred of persons the subject of such allegations".

10. Mr McGrath was sentenced to imprisonment for 18 years with a non-parole period of 13 years 6 months with effect from 18 December 1998. He became eligible for release on parole on 17 May 2012 but was not released until 17 November 2014.

Parole experience

11. The conditions of Mr McGrath's parole included that he adapt to normal lawful community life, submit to the supervision and guidance of a Community Corrections Officer and that he not have any contact (etc) with the victim's family. The conditions of his parole were explained to him when he first reported to his supervising officer. He requested permission to maintain contact with the victim's niece with whom he claimed to have a significant relationship. He was given a direction not to have any contact with her.

12. When Mr McGrath next reported a week later he was given another direction not to have any contact with the victim's niece.

13. On 30 January 2015 the Community Corrections Officer supervising Mr McGrath reported that Mr McGrath's response to supervision was "satisfactory". Case management strategies were said to have addressed aggression and violence, mental health and employment. He had recently commenced employment picking grapes at a local vineyard. He had purchased a car and had booked a driving test in order to obtain a licence.

14. However, the officer also reported that she had been informed by police that Mr McGrath had failed to comply with the direction not to have contact with the victim's niece. She recommended that he be issued with a warning for failure to comply with the supervision and guidance condition and that the no contact condition be amended so as to specifically include reference to the victim's extended family. Her manager supported that recommendation. In another report of the same date she recommended that the State Parole Authority note the report and request a further progress report in three months’ time. Her unit leader supported that recommendation.

15. Notwithstanding these recommendations, the State Parole Authority revoked Mr McGrath's parole as of 13 February 2015 for breach. A formal hearing was conducted on 24 March 2015 and the revocation was confirmed.

16. The breach was concerned with posts made by Mr McGrath on social media (Facebook) in which he used the name "The tea towel bandit", a description the Chairman of the Authority described as “deeply offensive and insensitive" and displaying a "lack of remorse, insight or victim empathy". He also noted the content of some of Mr McGrath's messages was "disturbing". They included threats to others; for example, "I look forward to an old fashioned square up. Happy New Year. Looking for a rifle."

17. Mr McGrath was again released on parole on 27 May 2016. The conditions included electronic monitoring; not contacting, communicating with, watching, stalking, harassing or intimidating the victim's family; and not contacting or communicating with a nominated person without express prior approval.

18. The unit leader supervising the officer who had direct responsibility for supervising Mr McGrath up until 16 September 2016, Ms Sarah Gilmour, reported that he had been compliant with his supervision and adhered to his parole conditions. His positive progression had resulted in the removal of a requirement for him to provide a weekly proposed schedule of movements. Regular audits of his movements had been carried out and no concerns had been raised. He remains on electronic monitoring.

19. The present supervisor officer for Mr McGrath filed a case note on 19 October 2016 in which he recorded the gist of a conversation he had on that date with the psychologist Mr McGrath was seeing:

"He advised that offender although exhibits anger seems to be compliant and not much is being achieved in weekly sessions. He stated he would look into reducing the offenders engagement to monthly."

20. In the course of her evidence at the preliminary hearing Ms Gilmour was taken to a case note she had filed on 31 July 2016 in relation to a home visit with Mr McGrath's supervising officer. It included that they had discussed him not being permitted to have any contact by any means with a person identified as "V2-F", a relative of his victim. According to Ms Gilmour, Mr McGrath insisted that this person was not related to the victim and blamed "Parole" for "cutting him off" from his family. His demeanour changed and he became extremely angry and began swearing when discussing this. (Tab 86 p832). Ms Gilmour said that Mr McGrath refers to V2-F as his niece but she was also a distant relative of the victim.

21. I pause to observe here that the family relationships in this matter are exceedingly complicated. In a case note about this home visit on 31 July 2016 by the supervising officer it is recorded:

"V2-F is the cousin of V2-S3 who is the half-sister of V2-S3 [sic – V2-S2] who is the niece of the victim."

22. In any event, it was clearly the case that Mr McGrath was directed by his supervisor not to have any contact with V2-F. His parole had been revoked in 2015 for having contact with V2-S2.

23. Apparently, the supervising officer had previously been told by Mr McGrath that V2-F has been the victim of sexual abuse by a person known to him (V2-FU – her step-uncle). The officer recorded her concern that Mr McGrath may again be taking on the role of "the protector".

24. In cross-examination, Ms Gilmour agreed that her service was initially sceptical about whether V2-F was Mr McGrath's niece but in a conversation between his former supervising officer and V2-FM (the mother of V2-F) on 3 August 2016 the relationship was confirmed.

25. V2-FM also said in that conversation that "she thinks [Mr McGrath] might still think of V2-F as a little girl and has probably built her up in his mind, given they haven't seen each other for many years. She admitted, repeatedly, that he is very much the protector and has always been very protective of V2-F." The officer's note continued:

"I asked V2-FM whether it was true that V2-FU had sexually abused V2-F. She stated that he had abused all of her children. I expressed concerns about that fact given how protective [Mr McGrath] appears to be of V2-F and in light of his index offence. F2-FM admitted that that had crossed her mind as well."

26. In a meeting with his current supervising officer on 1 October 2016 Mr McGrath brought up the subject of him not having contact with V2-F, saying he still thought it was unfair but indicating that he would comply with what is required.

27. Mr McGrath further discussed this issue with his supervising officer on 7 October 2016. He said that he had established contact with his "niece", V2-F, but had been directed not to have any contact because she was related to the victim. He said that V2-F had been in a relationship with a much older man and he did not approve of that relationship. He admitted that he made a threat to that person which he said he should not have done. However, the relationship was now over and V2-F was now seeing someone more age appropriate and "he is ok with that". He reiterated that he was not happy with the direction not to have contact by any means with V2-F but he was complying with it.

28. In cross-examination, Ms Gilmour agreed that the concern was about Mr McGrath playing the role of "protector" in respect of someone he perceived had been the victim of sexual abuse:

"Q. So essentially the view of Community Corrections is that your concern that if [Mr McGrath] has contact with V2F that he might become again embroiled in this issue that these children have been abused and because the abuser is currently in the community, that is the concern, protective concern?

A. That is how I would read that, yes."

29. Ms Gilmour also agreed, however, that McGrath accepted that there are means by which suspected child abuse can be dealt with lawfully.

30. Finally, Ms Gilmour agreed with the suggestion that the manner in which Mr McGrath had progressed in the community in terms of finding his own accommodation and a full-time job was "definitely exceptional".

Risk assessment report

31. A very detailed and useful Risk Assessment Report was prepared by Ms Cherice Cieplucha, Acting Chief Psychologist, Risk Management Programs of Corrective Services NSW following a review of various documents and five interviews with Mr McGrath in February 2016.

32. Of particular note, Ms Cieplucha recorded that while Mr McGrath accepts responsibility for his (murder) offence, had had maintained a distorted point of view about it and his victim. She wrote:

"He has articulated strong views against those who have committed sexual offences against children, which have served as justifications for his offending and aggressive behaviour. Mr McGrath displays rigidity in his thinking and justifications for his actions, which appear to have been maintained over the course of his incarceration until the current assessment."

33. Under the heading “Treatment targets and risk management considerations" and the sub-heading "Limited insight" she wrote:

“Mr McGrath has been described in Departmental records as demonstrating a long standing lack of empathy and insight into his offending – which was consistent with his presentation and verbal reports during the current assessment. His behaviour whilst in the community, through the use of the name 'The Tea Towel Bandit' on Facebook, further suggests a lack of insight into the severity of his offending and the implications associated with such a title. He has many long standing cognitions and beliefs related to his violence that he has not yet addressed. There also appears to be motivational deficits in relation to his desire or need to change such attitudes."

34. Under the heading "Risk Scenarios" Ms Cieplucha wrote:

"Potential situations that could elicit aggressive responses would include those that Mr McGrath considers confrontational, provocative or threatening. Whilst Mr McGrath reported a tendency towards retaliation in the form of verbal abuse, intimidation and threats, he does have the potential for extreme physical violence. The likelihood of him committing future violence would increase if he experiences conflict in which he feels compelled to assert his dominance, and would significantly increase if he were to have access to a weapon.

Mr McGrath's risk of violence may also be heightened in situations in which the safety of people close to him is threatened. Mr McGrath described himself as a 'protector', explaining that he will defend those who are otherwise unable to defend or protect themselves. Identified triggers would include people taking advantage of other people's vulnerabilities and perceived power imbalances within relationships, such as those where the dynamics are characterised by intimate partner violence." (Emphasis added)

35. In the course of discussing "Overall Risk", Ms Cieplucha wrote:

"In my opinion, the overall totality of evidence suggests that Mr McGrath falls in the Medium-High risk category of violent offending relative to other adult male violent offenders. Mr McGrath has demonstrated some understanding of his risk factors for violence and made some efforts to address these through participation in relevant CSNSW programs. Whilst he has not had a significant incident involving physical violence since his incarceration, there are indications of the potential for future violence as outlined in the risk scenarios section, if he does not adequately address relevant risk factors. What is unclear is the extent to which any future violence would approach the threshold of a 'serious violent offence' as defined in the Crimes (High Risk Offenders) Act 2006."

Submissions for the plaintiff

36. Counsel for the plaintiff characterised this as an unusual case. Mr McGrath was not confronted with substance abuse or anger management issues as is often the case. Counsel described the plaintiff's concern in the following terms:

"There is this ongoing ever present obsession … with being a protector of the vulnerable in the context of having a lack of insight into the index offence which has again also been commented on throughout the period of his incarceration and in the Risk Assessment Report in terms of feeling justified, still feeling justified, feeling no remorse and regarding himself as having carried out an appropriate action in relation to the victim some 18 years ago."

37. Counsel referred to the threats made by Mr McGrath during his first period of release on parole:

"These were threats … directed at one male who it was said was a 30-year old or thereabouts having a relationship with a 15-year old. It falls squarely within that obsession with paedophiles and child abuse and there was also the threat 'looking for a rifle emoticon' attached to it which was said to be issued to the daughter of [P4] being the person who had reported his conversation with Mr McGrath about the murder to police and indeed I think that conversation was recorded.

So it manifested itself within months of being released to parole and now we find on release to parole again that there is this further attempt to make contact with another woman who is not a young woman but in the context as my friend took Ms Gilmour to where that woman's mother agreed – in fact, I think she may have said it in her own words that 'he sees himself very much as the protector'."

38. Counsel for the plaintiff also referred to the risk assessment made by Ms Cieplucha. It was acknowledged that the level of risk was not assessed as "high" but it was submitted that acceptability or otherwise should not be measured by such a rating but rather by the likely drastic consequences if a further serious violence offence were to be committed: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] (Harrison J).

39. It was submitted that Mr McGrath's high risk factors, continued apparent lack of remorse and sense of justification, coupled with a longstanding obsession and the nature of his index offence, would support a finding to the appropriate level of satisfaction that the defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision.

Submissions for Mr McGrath

40. Counsel for Mr McGrath accepted that the preconditions for the making of an order were all satisfied aside from the ultimate issue of whether the Court would be persuaded "to a high degree of probability that [Mr McGrath] poses an unacceptable risk of committing a serious violence offence if he … is not kept under supervision": s 5E(2) of the Act.

41. State of New South Wales v Pacey [2015] NSWSC 1983 and State of NSW v Sancar [2016] NSWSC 867 were cited as examples of recent cases where this Court has refused to make orders sought by the plaintiff at the preliminary stage of proceedings under the Act. The latter decision by Garling J was characterised as "particularly instructive in dealing with an offender who has committed one serious violence offence, namely murder and who has also been assessed as a medium risk of reoffending".

40. It was pointed out in written submissions that the risk assessments using the various tools referred to in the Risk Assessment Report have their limitations. One of a number of examples given was that recidivism rates in statistical studies are not confined to reoffending to the extent of committing a "serious violence offence". So much may be accepted. Ms Cieplucha commenced this passage of her report by stressing that it is not scientifically possible to accurately predict whether an individual offender will or will not reoffend and that "the best that can be offered is an estimate that is anchored to empirical literature specifying features associated with risk and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment."

41. Ms Cieplucha's assessment was informed by actuarial tools but also factored in the various dynamic risk factors as they applied in the case of Mr McGrath. Her ultimate opinion was formed after a consideration of quite a complex array of data.

42. Counsel pointed specifically to Ms Cieplucha refraining from indicating whether any future violence would approach the threshold of a serious violence offence as defined in the Act: see above at [35].

43. Submissions also highlighted the lack of violent offending in Mr McGrath's past aside from the index offence and the courses he had undergone in custody, such as had been made available to him.

44. Particular emphasis was placed upon the significant progress Mr McGrath had made during his current period of parole release. Supervision had been at a relatively low-level; he had been proactive in finding accommodation and the need for structured psychological intervention has, in practical terms, been fairly minimal. The need for Mr McGrath to give advanced notice of his proposed movements has been found to be unnecessary and discontinued.

45. The concern about Mr McGrath's obsession with paedophilia has not been borne out during his lengthy period in custody during which he had quite a deal of contact with inmates convicted of offences of that nature without any violent response on his part. The assessment by Ms Cieplucha of Mr McGrath's risk of violent offending was also not borne out by his custodial history.

46. Reference was made to a number of matters identified in the Risk Assessment Report as "protective"; for example the fact that Mr McGrath's family is supportive of him.

Determination

49. There are a significant number of arguments available to Mr McGrath in opposing the making of a violent offender extended supervision order. (The foregoing is not a complete summary.) However, it must be borne in mind that I am making this assessment at the preliminary stage in the fashion which I have described above: at [5]-[7].

50. I have found the analysis of Garling J in State of NSW v Sancar instructive as counsel for Mr McGrath suggested. However, I also accept that it is simply illustrative of how another case with similar but not identical features was decided. As counsel for the plaintiff pointed out, there are also a number of distinguishing features: for example, that Mr McGrath's offence of murder was not reactive to circumstances in a confined environment (in that case, gaol) but were purposeful actions borne of a longstanding obsession and perceived need to act against a person with a particular characteristic in order to protect another person from becoming a victim.

51. The longstanding hatred by Mr McGrath of paedophiles; the unusual focus of his index offence; and the sense of justification he appears to maintain are very concerning. His recent conduct whilst on parole does not engender confidence that he has yet put behind him his perception of the need to act as a "protector" of those he might consider vulnerable to, or victims of, paedophilic offending.

52. Whilst the assessment of risk in Mr McGrath's case is not said to be "high", the consequences of further offending in circumstances akin to his index offence would be drastic.

53. In short, there is sufficient in the plaintiff's case which, if proved, would justify the making of an extended supervision order. Whether the various matters will ultimately be proved, and if so, whether an order will in fact be made, is unnecessary for me to determine at this point.

Orders

54. It is unclear whether it is necessary to make an interim supervision order. That would only be necessary if judgment following the final hearing was not delivered until after 17 December 2016 when Mr McGrath's parole period expires. Any such order would take effect upon such expiry. I was told at the preliminary hearing that it is anticipated that a hearing date in early December was likely. For abundant caution it is appropriate to make an interim supervision order.

55. I make the following orders:

1. Pursuant to s 7(4) of the Act, two qualified psychiatrists or psychologists are to be appointed to conduct separate examinations of Mr McGrath and to furnish reports to the Supreme Court on the results of those examinations on or before a date to be specified on the delivery of this judgment.

2.   Mr McGrath is directed to attend those examinations.

3. Pursuant to s 10B of the Act, Mr McGrath is subject to an interim supervision order from 17 December 2016.

4. Pursuant to s 10C(1) of the Act, the interim supervision order is to be for a period of 28 days;

5. Pursuant to s 11 of the Act, Mr McGrath is directed, for the period of the interim supervision order, to comply with the conditions set out in the Schedule to the Summons filed 30 September 2016.

**********

Decision last updated: 03 November 2016