State of New South Wales v Mills (No 2)

[2017] NSWSC 1442

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

State of New South Wales v Mills (No 2) [2017] NSWSC 1442

Hearing dates:

2 August 2017

Date of orders:

25 October 2017

Decision date:

25 October 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The plaintiff have leave to file the Amended Summons provisionally filed in Court on 2 August 2017;

 

(2) Pursuant to the provisions of s 5F and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to an extended supervision order for a period of three (3) years from the date of this order;

 

(3) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, the defendant shall comply, for the period of the extended supervision order issued in these orders, with the conditions set out in the Schedule to this order;

 (4)   Each party is granted liberty to address the wording of any condition imposed to accord with these reasons.

Catchwords:

EXTENDED SUPERVISION ORDER – high-risk violence offence – jurisdiction to make orders – jurisdiction to take account of later sexual offending – evaluation of risk – Court possesses jurisdiction – in absence of unacceptable risk of sexual offending Court did not impose conditions relating thereto – discussion of capacity to make orders requiring defendant to undertake employment – Extended Supervision Order granted.

Legislation Cited:

Crimes (High Risk Offenders) Act 2006
Crimes Act 1900

Cases Cited:

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120; [1978] HCA 46
State of New South Wales v Jeffrey Wayne Davie [2017] NSWSC 600
State of New South Wales v Mills [2016] NSWSC 1165
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21
Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Wilkie v The Commonwealth of Australia; Australian Marriage Equality Ltd v The Minister for Finance [2017] HCA 40

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Patrick Michael Mills (Defendant)

Representation:

Counsel:
L Fernandez (Plaintiff)
M Johnston SC (Defendant)

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

File Number(s):

2016/00219284

Judgment

1. HIS HONOUR: By Amended Summons filed 2 August 2017 (to which the defendant objects) the State of New South Wales (“the State”) seeks an Extended Supervision Order (“ESO”) applicable to the defendant, Patrick Michael Mills, for a period of 5 years from the date of the order and compliance with conditions that are set out in the Schedule to the Summons. The Amended Summons sought to replace a Summons filed 29 July 2016, which has been the subject of interlocutory proceedings and the issuing of one or more Interim Supervision Orders (“ISO”). The defendant is currently subject to an ISO.

2. The Court, as presently constituted, appointed a psychiatrist and psychologist under s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), in which judgment the Court issued the ISO, pursuant to the provisions of s 10B of the Act: see State of New South Wales v Mills [2016] NSWSC 1165.

3. The defendant has been released from custody and during his liberty he was governed by the ISO, but during that period he was incarcerated again for certain conduct. The effect of the subsequent incarceration is that the operation of the ISO is suspended and the duration of the ISO is extended for the period during which the defendant is in custody.

4. It is a matter of some controversy that the State seeks conditions that are generally applicable to high risk sex offenders, even though the basis for the ESO is the allegedly violent conduct of the defendant. This request arises from certain offending that has occurred since the original Summons was filed with the Court and is the basis for the objection to the filing of the Amended Summons.

Background

5. The defendant was born on 17 March 1971. He was convicted, after trial, for murder, which occurred during an armed robbery at Wyoming on 16 August 1993. He was sentenced by Wood J (as his Honour then was) on 2 June 1994. In the Remarks on Sentence his Honour confirmed that the defendant was liable for the murder as a result of a felony murder.

6. His Honour imposed a sentence of 23 years’ imprisonment, commencing 18 August 1993 and expiring on 17 August 2016. The non-parole period was 16 years’ imprisonment.

7. The defendant applied for parole on a number of occasions and was unsuccessful. He was released on 18 August 2016, having completed the sentence imposed upon him.

8. Prior to the commission of the murder, the defendant’s criminal history, while lengthy, generally concerned property offences, some of which involved the risk of violence or the occasioning of violence but which would generally not be considered serious violence offences in and of themselves.

9. One, at least, of the reasons that the defendant was denied parole was that he had engaged in acts of misconduct in the course of his custody, the worst of which, from a violence perspective, are two counts of intimidation committed in August 2014 and May 2015. The intimidation, or one of the counts, related to threats of violence towards another program participant in Custody Based Intensive Treatment (“CUBIT”) programme.

10. Notwithstanding the misconduct charges, including the reports of intimidation, the Correctional Services notes suggest that his behaviour improved remarkably or “discernibly” towards the end of his prison sentence. Having noted a discernible improvement, Corrective Services, nevertheless, suggested that his behaviour in custody “remains of serious concern”, relating specifically to his “volatile and aggressive disposition”. That disposition seems to be an improvement on previous conduct issues, but was of continuing concern as recently as 2015.

11. The defendant was unable to complete the Violent Offenders Therapeutic Program (“VOTP”) and it was for that reason that the defendant was referred to the CUBIT programme. One, at least, of the issues of concern in the defendant’s behaviour was the display of inappropriate attitudes towards female staff and “sexualised behaviours”.

12. During the period that the defendant was governed by the terms of the ISO, to which earlier reference has been made, the defendant committed, relevantly for the purposes of dealing with the issues between the parties, two offences, being offences of indecent assault. The circumstances of that offending is described in the evidence. The evidence is the subject of objection, with which objection I will deal later in these reasons.

13. Apparently, the defendant went to a shopping mall and saw a movie. The Case Note file reports conduct thereafter in the following way:

“Mills reported that there was so much ‘young arse’ around the shopping centre that all he wanted to do was [to] be able to feel it. Mills made admissions to the offences stating that he ‘used an open palm and touched two girls on the arse’. He also said, ‘He only saw the girls from behind and I thought they were older than they were’ also making reference to the victim’s height. He claimed that he could not tell the difference between an adult and a child from standing behind. He justified his actions by stating that given his length of time that he has spent in custody, he thought the victims were older than their actual ages. He continued on claiming that everywhere he goes, he sees ‘young pussy’ everywhere and after his period of incarceration it is consistently on his mind. He blamed COSP and Community Corrections for not allowing him to visit a brothel.”

14. Earlier in the Report there was reference to a comment by the defendant that threatened violence towards a Police Officer because he had arrested him for the foregoing later offences in the presence of his mother and at his mother’s residence. The Report refers to “demonstrated anger, increasing his tone of voice”.

15. The full facts, being the Police version of events, in relation to the offences in question refer to the two victims being 13 and 14 years of age, respectively. Each offence is similar in nature and is not inconsistent with the facts that the defendant admitted. In each case the defendant has grabbed the victim on the buttocks with his hand. Further, in each case the defendant has said to the victim, words to the effect: “Has anyone ever told you you have a great ass [sic] or bum [respectively]?”

Issues in the Application

16. The defendant opposes the making of an ESO and submits that he is not a serious violent offender, which submission shall be expanded during the course of these reasons. Further, if the Court were satisfied that the defendant is a serious violent offender, the defendant submits he is not a serious sex offender and conditions relating to the indecent assaults ought not be imposed and/or evidence relating to the indecent assaults ought not be admissible against him on the application. Nor, it is submitted, is the Court able, as a matter of jurisdiction and as a matter of discretion, to issue orders relating to sex offending.

17. Lastly, whatever be the nature of the conditions to be imposed, if the Court were of the view that an ESO ought to issue against the defendant, the duration of any such ESO ought be significantly less than the 5-year period sought by the State.

18. The summarised procedural history is as follows:

PROCEDURAL HISTORY

17 March 1971

Mr Mills was born

16 August 1993

Mr Mills (along with a 16 year old, MCM, who was later convicted of manslaughter) shot the deceased, Bernard Morton at the Grange Liquor Barn in Wyoming

Mr Mills shot the deceased with a shotgun in the course of an armed robbery

18 August 1993

Mr Mills was arrested for the above offence

Mr Mills plead not guilty and was convicted by Wood J in a judge-alone trial

26 May 1994

Judgment of Wood J

2 June 1994

Mr Mills was sentenced for murder by Wood J to a minimum of 16 years imprisonment. Term commenced on 18 August 1993 and expired on 17 August 2009

An additional term of imprisonment was imposed of 7 years commencing on 18 August 2009 and set to expire on 17 August 2016 – two form 1 matters were taken into account on sentence

Mr Mills appealed to the CCA against the severity of the sentence imposed by Wood J (Regina v PM Mills, Unreported, NSWCCA, Gleeson CJ, Cole JA and Sperling J, 3 April 1995)

3 January 1997

Mr Mills assaulted a prison officer, punching him in the cheek

31 January 1997

Mr Mills was charged with the assault of the prison officer

12 March 1997

Mr Mills was convicted and sentenced to 3 months’ imprisonment

18 August 2009

Mr Mills became eligible for parole. The State parole authority refused parole

29 April 2016

Mr Mills’ most recent parole refusal

High Risk Offender ESO application

20 July 2016

Summons filed – application by the State for a high risk violent offender ESO

9 August 2016

Interim orders made by Rothman J, that Mr Mills be subject to a high risk violent offender ISO from midnight 18 August 2016, expiring at midnight on 14 September 2016

Fresh charges

Charges for indecent assault were listed for hearing on 7 and 8 March 2017

Charge for failure to comply with ISO listed for mention on 7 February 2017

7 February 2017

Mr Mills plead guilty to two charges of failure to comply with ISO. The matter was listed for sentence on 3 August 2017 (bail refused)

7 & 8 March 2017

Mills plead guilty to two counts of indecent assault – the matter was listed for sentence on 26 April 2017 at Central Local Court

26 April 2017

Mr Mills was sentenced to the following for two counts of indecent assault:

Count one – 8 months imprisonment with the term dating from 31 August 2016 to expire on 30 April 2017; and

Count two – 15 months imprisonment with a non-parole period of 10 months commencing on 31 August 2016 and the non-parole period to expire on 30 June 2017

May need to add in sentencing for other offences – procedural history done before that

Could also add extensions to ISO and when the ISO restarted

Statutory Framework

19. The primary object of the Act, prescribed by s 3 of the Act, is to “provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community”. By s 3(2) another object of the Act is described as including “to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”.

20. As has been stated in a number of judgments, including by the Court of Appeal, the fundamental objective of the legislation is the protection of the community rendering the Act protective, not punitive. Nevertheless, the effect of the Act on a defendant is draconian.

21. The Act allows the Court to issue orders restricting the liberty of persons, in circumstances where such person is no longer serving a sentence imposed for the commission of an offence. This is a significant restriction on the rights of the citizen in the absence of an offence for which a defendant is being punished. Indeed, the provisions of s 5H and s 13A of the Act extend the period of control over a highrisk offender beyond the term of the sentence of imprisonment imposed on that offender in consequence of the conviction for the offence that gives rise, or may give rise, to the Continuing Detention Order (“CDO”) or ESO.

22. The provisions of s 5A of the Act define a “serious violence offence” to include an offence in which a person (a defendant in an application for a CDO or ESO) has engaged in conduct causing the death of another person or grievous bodily harm to another person with a relevant intention. By the express provisions of s 5A(2)(a) of the Act “serious violence offence” is extended to an offence that includes felony murder, regardless of the existence of the intention described in s 5A(1)(a) of the Act.

23. There are some jurisdictional conditions on the making of an order either for the continuing detention of an offender, or for the extended supervision of an offender. The first of them, prescribed by s 5E of the Act is that an offender may be made the subject of a high risk violent offender ESO (or CDO) “if and only if the offender is a highrisk violent offender”.

24. By s 5E(2) of the Act a “highrisk violent offender” is defined as a person of whom the Court is satisfied “to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision”. The provisions of s 5E(3) seek to clarify that the Court is not required “to determine that the risk of committing a serious violence offence is more likely than not” in order to be satisfied that there is an unacceptable risk.

25. Further, the provisions of s 13C of the Act require that an application for either a CDO or an ESO may be made only while the violent offender is either detained or supervised.

26. It is necessary, because of the particular issue associated with the conditions and the objections thereto, to note that the Act defines serious sex offence in s 5 of the Act by reference to particular provisions of the Crimes Act 1900 (or its equivalent) and generally refers to offences that involve a punishment of seven years’ imprisonment or more.

27. The Court’s jurisdiction to issue orders is conferred by s 9 or s 17 of the Act which allows the Court to determine an application for an ESO or a CDO by issuing an ESO or a CDO or dismissing the application: s 9(1) and s 17(1) of the Act. The jurisdiction in relation to an application for an ESO is conferred by the provisions of s 9 of the Act which allows the Court, on such an application, to make an ESO or to dismiss the application.

28. It is relevant, for the issues to be determined in these proceedings, that the provisions of ss 9 and 17 of the Act do not differentiate between high risk sex offenders, on the one hand, and high risk violent offenders, on the other hand. Each application is dealt with in the same way at the point in time that the Court is required to determine the result of the application (including such conditions as the Court considers appropriate under s 11 of the Act).

29. The Court, as presently constituted, discussed the issues of discretion and jurisdiction of the Court in State of New South Wales v Jeffrey Wayne Davie [2017] NSWSC 600, where the Court made the following comments:

“[24] Any discretion under the Act is the discretion reposed in the Court by s 17 of the Act to determine an application (assuming it be an application under the relevant Part of the Act) by, as earlier stated, making an ESO; making a CDO; or by dismissing the application. In order to issue a CDO, the Court must be satisfied that an ESO will not provide adequate supervision for the defendant: s 5D(1) of the Act. That latter task is evaluative.

[25]    At one stage there was some difference of view, within the Court, as to the approach to determining whether a person is a high risk violent offender (or, relevantly, sex offender). It has been made clear that the meaning of that term does not include the serious consequences for the defendant, of the defendant being detained beyond the period of his sentence.

[26]    Rather, the proper approach is to give the words of the relevant provision their everyday meaning in the context of the provision in which they appear: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58]. The construction of the foregoing term is intertwined with the meaning of “unacceptable risk”, which is not defined in the legislation.

[27]    In State of New South Wales v Banks [2016] NSWSC 926, I considered the ‘controversy’, then without reference to the judgement of the Court of Appeal in Lynn, and I noted:

‘[18]    The construction of the legislation and, in particular, the term “unacceptable risk” is a little controversial. The term “unacceptable risk” is not defined in the legislation and the controversy stems from a difference of opinion between some of the members of the Court as to how to construe the term.

[19]    The process of statutory construction is no longer one of controversy. It requires the words of a statute to be given a meaning that the legislature is taken to have intended them to have. Ordinarily, the meaning given in that process will correspond with a grammatical meaning of the provision, but not always.

[20] The meaning given to a statutory provision must include the context of the phrase or word, the consequences of a grammatical meaning being given, the objects of the statute as a whole and the achievement of harmonious goals by the legislature: Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 at [70] and [78] (per McHugh, Gummow, Kirby and Hayne JJ).

[21]    The controversy relates to what seems to be a difference as to whether the term “unacceptable risk” is given its “everyday meaning in the context of the provision” or involves a “balancing exercise” in which one factors the effect of an order on the offender and balances that with the likelihood of committing a further serious offence and the gravity of such an offence that may be committed.

[22] In practical terms, the difference may not be substantial. The difference is discussed in the judgment of Hoeben CJ at CL in Attorney General for the State of New South Wales v McGuire [2015] NSWSC 152 at [41]-[43].

[23] In my view, and with respect to the judges involved in the “controversy”, the issue is resolved by a construction of the Acts a whole. The definition of “unacceptable risk” ought, in accordance with the principles set out above and derived from the judgment of the High Court in Project Blue Sky, be given its meaning in the context of the Act and in order to achieve harmonious goals. As a consequence, the term ‘unacceptable risk’ is given its everyday meaning in that context.

[24] However, when the Court comes to construe the provisions of either s 9 of the Act or s 17 of the Act, by each of which the Court may determine an application either by making the relevant order (or in the case of an application for continuing detention, an ESO) or may dismiss the application.

[25] It is at the point of the exercise of the jurisdiction conferred by s 9 of the Act or by s 17 of the Act that the balancing exercise in which one considers the effect of such an order on the offender, the probability of an offence being committed and the gravity of any likely offences.

[26] Each of s 9 of the Act and s 17 of the Act requires the Court to have regard to any matter the Court considers relevant. As a consequence, the achievement of harmonious goals is better effected by not considering the balancing exercise at the time of determining whether there is an “unacceptable risk”, but, rather, at the time at which the jurisdiction to issue the orders considers as to the making of an order of any kind.’

[28]    In my respectful view, the foregoing analysis remains valid and is not inconsistent with the principles to which the majority in Lynn referred.”

30. Moreover, the foregoing analysis is wholly consistent with the principles to which the majority referred in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 and in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28. In Wilde, the Court of Appeal (Beazley P, McColl and Ward JJA) said:

“[37]    The test to be satisfied for the imposition of any condition attaching to an extended supervision order has been considered by the Supreme Court on numerous occasions and has also been the subject of consideration in this Court in Attorney-General for New South Wales v Tillman [2007] NSWCA 119 and Winters v Attorney-General for NSW [2008] NSWCA 33. In Tillman, the Court (Mason P, Santow and Tobias JJA) observed, at [5], that the stated objects of the Act ‘reveal that the legislation is protective rather than punitive in its intent’. Their Honours also observed, at [45]:

‘... the statutory objects in this extraordinary legislation are directed at “ensuring” the safety and protection of the community and “facilitating” rehabilitation of serious sex offenders.’

…

[40] The scope of the Act, as his Honour had earlier noted, at [14], includes the matters to which the court must have regard in determining whether to make an extended supervision order specified in s 9(3).

[41]    Johnson J again dealt with the question of the imposition of conditions in State of New South Wales v Ali [2010] NSWSC 1045, where his Honour stated, at [88]:

‘In approaching the question of conditions, I bear in mind what was said in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], that the imposition of conditions which are considered appropriate involves the striking of a balance between relevant considerations, so as to provide an outcome which is fit and proper. I bear in mind, as well, that the imposition of conditions under this Act creates a statutory offence if conditions are breached. The consequence of the ordering of a condition emphasises the need for a proper basis to be demonstrated for the condition to be made in the first place.’

[42]    This test was accepted as correct in State of New South Wales v Fisk [2013] NSWSC 364 per Beech-Jones J at [96]. His Honour added, at [99], in respect of a serious sex offender:

‘The imposition of “appropriate” conditions under s 11 is governed by the overriding purpose of mitigating the identified risk of the high-risk sex offender committing either serious sex offences, or at least offences of a sexual nature.’

…

[47] Section 11 provides that the court may impose such conditions as it considers appropriate. The discretion is broad, but must be exercised having regard to the scope and purpose of the Act and its objects.

[48] The purpose and statutory objects of the Act are referred to above at [25]. The scope of the Act, so far as it is relevant to the making of an extended supervision order, is to be found in those provisions which govern the making and determination of an order, namely, s 9(3) and s 11. The matters specified in those sections are not exhaustive of the matters to which the court is to have to have regard or to which any condition imposed by the court must relate. Rather, as s 9(3) provides, the court must have regard to matters specified in the subsection ‘in addition to any other matter it considers relevant’. Likewise, the conditions that may be imposed are not restricted to those that fall within the paragraphs of s 11.

…

[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.” [Emphasis added.]

Consideration: Unacceptable Risk and Determination

31. The procedural conditions for the making of an order have been satisfied. The foregoing does not deal with “unacceptable risk”. Mr Mills, the defendant, is currently governed by an ISO and the application for an ESO was made within six months of the release of the defendant. Further, the offence for which he was imprisoned was an offence that is, on the definitions in the Act, a “serious violence offence”.

32. The next issue to be considered is whether the defendant poses an “unacceptable risk”. The first matter to be discussed in relation to the unacceptability of risk is the nature of the offence for which Mr Mills was incarcerated.

33. Some offences in which a person has been found guilty of murder, particularly where it is on the basis of a joint criminal enterprise or a felony murder, may not involve the particular offender in the application of violence. In the instant proceedings, the trial judge, on sentencing, could not find to the requisite standard that Mr Mills intended to shoot the victim.

34. As a consequence, Wood J determined that Mr Mills was guilty of murder by reason of the felony murder rule. As a matter of jurisdiction, guilt of murder on such a basis, as earlier indicated, satisfies the definition of serious violence offence. Nevertheless, there are evaluative issues.

35. The difficulty from the defendant’s perspective is that the Court, as presently constituted in this application, is not required to find, or be satisfied, of the unacceptability of the risk on the criminal standard. Last, the mere fact that Wood J could not find, beyond reasonable doubt, that Mr Mills intended to discharge the firearm (a shotgun) does not require a determination for present purposes to the same effect. Notwithstanding the finding of Wood J, the Court as presently constituted, could find, on the balance of probabilities, that Mr Mills intended to discharge the firearm.

36. Having made that point, the Court does not so find. Nevertheless, Mr Mills deliberately and intentionally embarked upon an armed robbery in which he was in possession of a shot gun that was loaded. Over and above the definition of serious violence offence in the Act, such conduct involves an intention or a contemplation of really serious injury. It may be different if the firearm was unloaded. It is not necessary for the Court to deal with such an issue.

37. It seems to me, therefore, even disregarding the extended definition of serious violence offence, that the nature of the offence of which Mr Mills was convicted is such that it can properly form a basis for a satisfaction of an “unacceptable risk”.

38. As a consequence, it is necessary to deal with the psychiatric evidence that is before the Court and the expert evidence on the issue of risk. One must be cautious in the evaluation of risks on the basis of static measuring tools. If static measuring tools were the basis upon which one would find an unacceptable risk, all serious violence offenders would satisfy the criterion.

39. Dr O’Dea compiled a report on Mr Mills dated 22 June 2017, which has been tendered: Exhibit B. The report, as one would expect, notes Mr Mills’ history and, in particular, his criminal history from the age of 10 years and the difficulty associated with the fact that the majority of Mr Mills’ adolescence was spent in juvenile detention. Likewise, the majority of his adult life was spent in custody. It also notes the repeated problems with mood and in particular anger, aggression and violence.

40. Dr O’Dea suggests that the defendant satisfies the criteria for a psychiatric diagnostic category of Personality Disorder 1, with significant antisocial and psychopathic traits. These are considered enduring conditions and in accordance with the doctor’s report, are “characterised by patterns of inner experience and behaviour that deviate markedly from the expectations of an individual’s culture, and manifested in a variety of domains, including cognition, affect, interpersonal functioning, and impulse control, with antisocial personality disorder characterised by repeated failure to conform to lawful behaviours, deceitfulness, and impulsivity.”: Exhibit B, [86].

41. The doctor notes that the disorders with which the defendant is associated generally are considered to have a limited capacity to be ameliorated by treatment. Dr O’Dea also suggests there is evidence of post-traumatic stress disorder, but does not derive a conclusion in that regard. His ultimate opinion is that Mr Mills’ overall personality and conduct “would be best understood as an Antisocial Personality Disorder with significant psychopathic traits, rather than as a major psychiatric illness.”: Exhibit B, [88].

42. Dr O’Dea also points to a potential for a Paraphilic Disorder 2 in general, but, again, comes to no conclusion. This is based upon his sex offences and his “significant sex drive, …reported sexual frustration in custody, his pornography” and the like. Nevertheless, Dr O’Dea suggests that the index sex offences “may also be conceptualised, at least in part, in the context of Mr Mills’ general antisocial personality, with significant psychopathic traits and his significant and ongoing substance abuse”: Exhibit B, [90].

43. Before the Court is a report of Mr Sheehan of 16 June 2017: Exhibit E. Mr Sheehan also refers to the defendant’s history and, in particular, his attempt at community living under an ISO from August 2016. He refers to the convictions during that time pertaining to use of illicit substances and the indecent assaults.

44. In relation to the indecent assaults, Mr Sheehan relates them back to the pattern of behavioural dis-inhibition and impulsivity during incarceration. Mr Sheehan doubts there is a “specific fixed paraphilic interest …but a general sexual preoccupation that is opportunistic in nature, encouraged by impaired social judgement, with some evident recklessness as to the age of the target of sexual arousal. It is also likely that his methylamphetamine use was an aggravating factor in disinhibiting his sexual behaviour in the instance of his sexual offences”. Mr Sheehan estimates his risk of sexual reoffending to be in the moderate to high range based on the information before him.

45. Dr Allnutt diagnosed the defendant with an antisocial personality disorder but noted a reduction in his antisocial and oppositional behaviour of late.

46. Dr Allnutt referred to his clinical presentation and the opinion Dr Allnutt derived from that presentation that Mr Mills “has been motivated by unresolved feelings of resentment about his circumstances, a mistrust of authority and opposition to authority, hypersensitivity to criticism, difficulties gaining insight into the impact of his behaviour on others, sexual frustration, and fluctuations in his mood with periods of depression and frustration with his limited progress through the system”.

47. Dr O’Dea assesses Mr Mills as having “a significant risk of engaging in further violent and/or sex offending behaviours in the community in the long term, including of committing a further serious violence offence, or a serious sex offence …particularly if he were to continue to abuse alcohol and/or illicit substances, and to not successfully address (sic) and manage his problems with anger, aggression and violence, and his sexual deviants, with the risk the appropriate focus of specific and structured risk management, including psychiatric treatment and risk management in the community in the long term”.

48. Dr O’Dea separates the risk factors for engaging in further violent offending behaviours and engaging in further sex offending behaviours. He describes them as “somewhat separate”, “with separate but linked therapeutic risk management requirements”.

49. Mr Sheehan assessed the defendant, using the Violence Risk Scale, as “within the high range of risk of violence”.

50. Mr Sheehan notes that the risk of future violent offending by Mr Mills is not as high as it was 10 years ago, or even five years ago, but nevertheless “remains in the high risk category of violent offending relative to other adult male offenders”. He makes clear that Mr Mills’ “impulsive interpersonal aggression continues to be an issue that has undermined Mr Mills’ ability to progress” within prison. Mr Sheehan expressed the opinion that it was “not clear” whether any future violence that might be committed by Mr Mills would fall within the definition of “serious violence offence”

51. In a later report (16 June 2017), Mr Sheehan assesses the defendant’s risk of sexual offending using a Static Scale, with which a review of dynamic variables is consistent. He also noted the difficulty in fashioning conditions that would adequately supervise and/or ameliorate any risk of the kind of sexual offending with which Mr Mills was charged.

52. Similarly, Dr Allnutt expresses the clinical opinion that Mr Mills falls into a group of offenders at high risk of violence as compared to other offenders. Dr Allnutt, as earlier suggested, notes that the violent behaviour of Mr Mills had reduced in frequency more recently “which suggests an attenuation but not absence and thus not stabilised”.

53. A perusal of the reports shows a significantly increased likelihood of reoffending for a future serious violence offence, if Mr Mills engaged in the consumption of illicit drugs or associated with a criminal element again. Further, it seems that the continued consumption of illicit drugs would also, not unexpectedly, motivate Mr Mills to engage in the kind of conduct (e.g. armed robbery) that caused the initial offending.

54. Overall, I am satisfied that in accordance with the Act, Mr Mills is a high risk violent offender. In that respect, the Court is satisfied to a high degree of probability that Mr Mills poses an unacceptable risk of committing a serious violence offence if he were at liberty in the absence of appropriate supervision.

55. As to the issue of the sex offences committed subsequent to the application, there are some factual issues with which the Court must deal. First, the offences with which Mr Mills was charged are two offences of indecent assault of a person under the age of 16 in contravention of s 61M(2) of the Crimes Act.

56. The material before the Court involves an explanation by Mr Mills that he was unaware of the young age of each of the two victims. That explanation has been reiterated earlier in these reasons. Mr Mills was convicted of those offences after a plea of guilty, which even if at the minimum level, involves proof of all of the elements of the offence: Meissner v The Queen (1995) 184 CLR 132, per Dawson J at 157; [1995] HCA 4.

57. The difficulty with the alleged belief in the age of the victim is that the circumstances of the act of indecency and assault are such that, even if the defendant believed each of the victims was over 16, it would render him liable for a contravention of s 61M(1) of the Crimes Act and would still be a serious sex offence within the definition in s 5 of the Act. As a consequence, Mr Mills’ convictions, subsequent to the index offence, amount to offences which are serious sex offences within the meaning of the Act and would have allowed the State to make application accordingly. Nevertheless, the State did not.

58. The application in the Summons (and the putative Amended Summons) is for the defendant to be “subject to a high risk violent offender extended supervision order”. No application has been made for a high risk sex offender ESO.

59. Nevertheless, on such an application, the Court makes an order either making an ESO or dismissing it. As a consequence if, as is the case, the Court is of the view that there is an unacceptable risk (under either s 5 or s 5B of the Act), the Court is required to determine under s 9 (and sometimes under s 17) of the Act whether orders should issue and, if orders issue and those orders include an ISO or ESO, the conditions under s 11 of the Act that should be imposed.

60. In short, notwithstanding the cogent submissions of Mr Johnston SC on behalf of the defendant, it seems to me that the Court, on an application for an ESO utilising the provisions of s 5F of the Act, can impose conditions which relate to issues arising from other offending that would, ordinarily and otherwise, require an application under s 5C of the Act.

61. The foregoing is a determination on whether the Court possesses the jurisdiction to impose conditions, not whether, in the exercise of its discretion, it ought to impose such conditions.

62. In the event that the Court is wrong on the foregoing, I should note my conclusions as to the sex offending. The Court makes clear that it is not satisfied to a high degree of probability that Mr Mills poses an unacceptable risk of committing a serious sex offence, if not kept under supervision. That lack of satisfaction concerns only the question of the sex offending assessed without regard to the unacceptable risk of committing a serious violence offence.

Conditions

63. The provisions of s 11 of the Act prescribe conditions that may be imposed by the Court. The conditions that may be imposed are not confined to, or limited by, the prescribed conditions in s 11 of the Act.

64. As expressed in the Act, s 11 does not limit the conditions that the Court may impose. The imposing of a condition by the Court must be exercised having regard to the scope and purpose of the Act and its objects and not take account of extraneous factors: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; [1947] HCA 21; Wilkie v The Commonwealth of Australia; Australian Marriage Equality Ltd v The Minister for Finance [2017] HCA 40 at [109]; Wilde, supra, at [47]-[48].

65. As the Court of Appeal pointed out in citing with approval the comments of Johnson J and of Beech-Jones J, the notion of imposing appropriate conditions must be governed by the overriding purpose of mitigating the identified risk and the consequence of breaching a condition, which itself is a criminal offence, emphasises the need that a proper basis be demonstrated for the condition to be to be included in the orders of the Court: Wilde, supra, at [41], [42].

66. In dealing with the conditions, it is necessary to understand that the Court must act judicially and ought not impose conditions that are not justified by the evidence before the Court nor aimed or directed at reducing the risk of “general future criminal conduct”: Wilde, supra at [54]. As indicated in the passage from Wilde, supra, recited above, the conditions should seek “to address the risk of future offending of the type which was the basis of the order”. It is that test which the Court adopts in dealing with the conditions sought to be imposed.

67. The defendant objects to Conditions 5 and 6 (electronic monitoring); Condition 18 (restrictions to particular locations); Condition 19 (conditions relating to sexually explicit material or the provision of sexual services); Condition 21 (participation in work); Conditions 24 and 26 (absolute prohibition on alcohol); Condition 30 (associating with persons consuming or under the influence of alcohol); Condition 31 (engagement of sex workers without prior approval); Condition 33 (prior approval necessary for the joining of any club or organisation); Condition 34 (contact with minors); Conditions 37-41 (restrictions on Internet and use of electronic devices); and Condition 47 (access to pornographic material).

63. The Court is not satisfied that it is appropriate to impose conditions with which Mr Mills must comply relating to the possibility of future sex offending in circumstances where the Court is not satisfied that there is an unacceptable risk of Mr Mills committing a serious sex offence if conditions are not imposed. Moreover, in some respects, the expressed attitude of the defendant to the sex offending may be ameliorated by engaging in conduct that these conditions would prohibit.

64. More importantly, to make the use of a sex worker a criminal offence, in circumstances where there is substantial evidence that the sex offending arises from the denial of sexual opportunity during his incarceration, seems illogical and counter-productive.

65. Some of the conditions to which objection is taken are not in that category and other conditions, if amended, are appropriate. I will deal with the conditions seriatim, by reference to the Amended Summons.

Conditions 5 and 6

71. Conditions 5 and 6 deal with the wearing of electronic monitoring equipment and the provision of a weekly plan. On the evidence before the Court the risk of a further serious violence offence is not ameliorated in any meaningful way by the wearing of electronic monitoring equipment, given the other conditions that have been imposed. Condition 5 is rejected.

72. On the other hand, a weekly plan provides an organisational basis which, given the residential requirements, would be of assistance in ameliorating the risk of committing future serious violence offences. Condition 6 will be imposed.

Conditions 18 and 19

73. Condition 18 is plainly directed at sex offences and, in particular, ameliorating a risk of paedophilia. Condition 18 is rejected. So too is Condition 19.

Conditions 21 and 22

74. Next, the Court deals with the objection to Condition 21. First, while the Court is not limited to the conditions prescribed in s 11 of the Act, the specified condition relating to employment is a condition that prohibits an offender from engaging in specified employment or classes of employment.

75. Condition 21 requires Mr Mills to undertake employment that is available, if so directed. That is a qualitatively different condition than that which is suggested in s 11(i) of the Act.

76. Secondly, there are fundamental issues associated with human rights in a modern democracy that seem to be contravened by the condition that is sought to be imposed. If that condition were imposed, it would mean, for example, that a defendant would commit a criminal offence, if he or she did not enter available employment into which he or she was directed, notwithstanding that the employment may be unsuitable, undesirable, requires training in an area that the defendant does not possess, is paid less than is a fair and appropriate remuneration, or imposes conditions that are unreasonable.

77. In Australia, we live in a democracy and the Constitution is “a framework for a free society”. There may be occasions when the law and the state legislature might validly impose, conditions of conscription into certain employment.

78. But the introduction of such conditions cannot be done surreptitiously or by some instrument under the guise of general conditions. This condition imposes a form of serfdom and, in the absence of express legislative power, is not permitted under the Act: see Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120 at 157; [1978] HCA 46. Condition 21 is rejected in so far as it requires employment to be undertaken, but will remain to require suggested training when unemployed.

79. Condition 22, to which there is no objection, imposes a condition consistent with the condition prescribed in s 11(i) of the Act and will remain.

Conditions 24 and 26

80. The Court next deals with Conditions 24 and 26. No part of the circumstances of previous offending relates to the use of alcohol. The words “alcohol or” will be deleted from Condition 24. Further, it is not absolutely clear what that which remains in Condition 24 achieves. It is already a criminal offence to utilise illegal drugs.

81. Condition 25 requires the defendant to submit to testing for drugs and alcohol. The imposition of Condition 24 would result in the situation where the consumption of an illegal drug would result in the commission of two criminal offences, instead of one.

82. Further, it seems consistent with the amelioration of the risk of further serious violence offences, that the defendant not be unduly under the influence of alcohol and a condition in or to the following effect will be imposed:

“[24]    The defendant must not, while governed by these orders, have a prescribed content of alcohol, being that amount prescribed as the maximum amount allowable for a person who is entitled to drive a motor vehicle on a public road (namely, 0.05).”

83. Condition 26 is in a different category. Entering licensed premises, without the approval of the DSO, may involve the defendant in associating with the criminal elements to which the psychiatric reports refer.

84. On the other hand, almost all restaurants are licensed premises. Is it seriously suggested that the defendant is not entitled to eat in a restaurant; or eat in a restaurant with a person who is entitled to consume alcohol?

85. In my view, this issue is resolved by reversing the onus. Given that the defendant must provide a schedule of movements (Condition 6), and may not deviate other than in an emergency (Condition 8), or otherwise change anything without 24 hours’ notice (Condition 7), it achieves the purpose of ameliorating the unacceptable risk, if the condition were in the following terms:

“[26]    The defendant must not enter any licensed premises to which his DSO objects. Such objection shall be made in writing (including text message or electronic non-voice communication) within 24 hours’ of the provision of the weekly plan that includes said licensed premises under Condition 6 herein, or six hours’ in advance of intended attendance, notified in accordance with Condition 7. Under no circumstances is attendance at a licensed premises to be included in “an emergency” (Condition 8).”

Condition 30

86. For similar reasons as outlined above, Condition 30 will not be imposed. While there may be some occasions in which some people in that category would be persons who may be the criminal element to which the psychiatric reports refer, it is not the consumption of alcohol that define such persons. Further, the reference to alcohol in Condition 29 will be removed.

Conditions 31 and 34

87. Conditions 31 and 34 will not be imposed, for the reasons already outlined.

Condition 33

88. Condition 33 is, in the view that the Court takes, in a different category. As already mentioned, the psychiatric reports deal with criminal elements which have aggravated, in the past, and will aggravate, in the future, offending in relation to a serious violence offence. Conditions that did not include a condition of the kind outlined in Condition 33 would involve the proposition that there was no prohibition on the defendant joining, for example, an Outlaw Motorcycle Gang, known to be violent. Condition 33 will be imposed.

89. Next, I deal with those conditions under Part H of the Schedule.

Condition 37

90. Condition 37 will be imposed. It merely requires the defendant to provide a list of the electronic equipment utilised by the defendant.

Conditions 38, 39, 40 and 41

91. Similarly, Conditions 38, 39, 40 and 41 will be implemented. These allow inspection and policing of the use of Internet accounts and electronic devices. An attempt by the DSO, or a nominee thereof, to provide directions that go to matters not dealing with violent offending, or reasonably directed at ameliorating the risk of violent offending, would be extraneous to the powers provided by this Schedule and would not, in those circumstances, be a “reasonable” direction.

Condition 47

92. Lastly, in terms of Conditions, the Court deals with Condition 47.

93. Condition 47(a) will be amended to insert at the end of the paragraph after the words “Refused Classification” the words “on account of the depiction of violence”.

94. Condition 47(b) shall be amended by deleting the words “or pornographic” and by inserting the words “on account of violence” after the words “that would” in that paragraph.

95. The foregoing deals with each of the conditions in issue and the reasons therefor. Further, it deals with the objections taken to the classification of the defendant as one who poses an “unacceptable risk” and the jurisdiction of the Court to make certain orders or impose certain conditions.

96. As to the duration of any order, there is little evidence on the issue. The State may apply for further orders. It may be that in three (3) years, the defendant will no longer pose an unacceptable risk. It is unclear, but the orders ought to be in force long enough to assess the defendant’s conduct. I will make the order for three (3) years.

97. The Court makes the following orders:

1. The plaintiff have leave to file the Amended Summons provisionally filed in Court on 2 August 2017;

2. Pursuant to the provisions of s 5F and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to an extended supervision order for a period of three (3) years from the date of this order;

3. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, the defendant shall comply, for the period of the extended supervision order issued in these orders, with the conditions set out in the Schedule to this order;

4. Each party is granted liberty to address the wording of any condition imposed to accord with these reasons.

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SCHEDULE OF CONDITIONS OF EXTENDED SUPERVISION ORDER

PATRICK MICHAEL MILLS

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

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

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

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

Schedule of Movements

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

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

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

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

Part B: Accommodation

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

10.   The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO.

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

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

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

Part C: Place and travel restrictions

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

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

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

Part D: Employment, finance and education

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

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

19.   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol

20.   The defendant must not, while governed by these orders, have a prescribed content of alcohol, being that amount prescribed as the maximum amount allowable for a person who is entitled to drive a motor vehicle on a public road (namely, 0.05).

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

22.   The defendant must not enter any licenced premises to which his DSO objects. Such objection shall be made in writing (including text message or electronic non-voice communication) within 24 hours’ of the provision of the weekly plan that includes said licensed premises under Condition 5 herein, or six hours’ in advance of intended attendance, notified in accordance with Condition 6. Under no circumstances is attendance at a licensed premises to be included in “an emergency” (Condition 7).

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

Part F: Non-association

Associations with Adults

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

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

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

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

Part G: Weapons

28. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.

29.   The defendant must not carry on his person, at any time he has left his residence, any knife, syringe or other cutting instrument or any rope, cord, cable ties, or other instrument of restraint.

Part H: Access to the internet and other electronic communication

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

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

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

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

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

Part I: Search and seizure

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

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

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

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

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

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

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

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

g.   search and examination of his person.

36.   For the purposes of the above Condition:

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

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

NOTE:

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

“Pat-down search” means a search of a person where the person’s clothed body is touched.

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

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

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

c.   the defendant’s compliance with this order;

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

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

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

Part J: Access to pornographic, violent and classified material

40.   a.   The defendant must not purchase, possess, access,

obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification on account of the depiction of violence;

b.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to violent material classified or material that would on account of violence be classified as X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other similar material, without the approval of the DSO.

Part K: Personal details and appearance

41.   The defendant must not change his name from “Patrick Michael Mills” or use any other name without the approval of his DSO.

42.   The defendant must not use any alias, log-in name, or a name other than “Patrick Michael Mills” or use any email address other than those known to the DSO under Condition 30 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

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

44.   The defendant must let CSNSW photograph him.

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

Part L: Medical intervention and treatment

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

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

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

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

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

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

Amendments

14 November 2017 - SCHEDULE OF CONDITIONS OF EXTENDED SUPERVISION ORDER - Condition 22 and 42 amended by consent.

Decision last updated: 14 November 2017