State of New South Wales v O'Hara (Final)

[2022] NSWSC 155

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v O’Hara (Final) [2022] NSWSC 155

Hearing dates:

16 February 2022

Date of orders:

24 February 2022

Decision date:

25 February 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

1(a) Pursuant to ss 5B and 9(1)(a) of the Act, the defendant is subject to an extended supervision order for a period of 18 months from midnight 24 February 2022.

1(b) Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, is to comply with the Conditions set out in the Schedule to this Judgment.

2. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDER – extended supervision order whether an ESO should be made in issue – length of ESO and conditions in issue – order made for 18 months

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Chaplin [2019] NSWSC 471

State of New South Wales v Davison (Final) [2019] NSWSC 1140

State of New South Wales v O’Hara (Preliminary) [2021] NSWSC 1484

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Django Womack O’Hara (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
E Kerkyasharian / C Akthar (Defendant)

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

File Number(s):

2021/210944

Publication restriction:

Nil

Judgment

1. The State of NSW seeks final orders against the defendant under the Crimes (High Risk Offenders) Act 2006 (NSW) Act (“the Act”). The defendant has been in the community under an interim supervision order (ISO) with conditions since midnight 25 November 2021. The last extension of those orders that is available under the Act expires on 24 February 2022.

2. The State seeks an order in its Amended Summons filed in Court on 16 February 2022 that the defendant be made subject to an extended supervision order (ESO) for a period of 4 years commencing at midnight on 24 February 2022.

3. The defendant contended that the evidence does not justify an ESO being made at all and the alternative, it should be limited to 1 year. There was also argument about the form of and need for some of the proposed conditions.

4. For the reasons that follow, I have decided that an ESO of 18 months length should be made on the conditions set out in the Schedule to this judgment.

The preliminary hearing and interim orders

5. The Summons filed on 23 July 2021 initially sought a 5 year ESO. Mr O’Hara’s term of imprisonment for an offence of causing grievous bodily harm with intent to cause grievous bodily harm was to expire on 25 November 2021. Beech-Jones CJ at CL made an interim order for supervision with a small adjustment to one of the proposed conditions. He also made orders under s 7(4) of the Act for the defendant to be examined and reported upon by two experts.

6. This was followed by extension of the ISO by Wright J on 16 December 2021 and then Garling J on 18 January 2022.

7. At the final hearing on 16 February 2022, I extended the ISO to expire at midnight on 24 February 2022.

Evidence at the final hearing

8. The plaintiff relied upon the affidavits of Ms Murty solicitor dated 23 July 2021, 14 October 2021, 28 January 2022 and 14 February 2022 together with two volumes of exhibited material contained in Exhibit JM1. An affidavit of Aftab Khan affirmed 25 January 2022 was read. That affidavit set out the rationale, practicalities and operational aspects of electronic monitoring. An affidavit of Kellie Grabham affirmed 28 January 2022 set out the role of the ESO team, the purpose in that context of electronic monitoring and other matters regarding implementation of an ESO, as well as commentary on the role and usefulness of the proposed suite of conditions and their inter-relationship.

9. The defendant relied upon an affidavit of Michelle Macdonald solicitor affirmed 11 February 2022 which appended recent case management notes and a Programs Services Participation Report regarding the defendant.

10. Pursuant to the requirements of the Act, the independent expert assessments of Dr White and Dr Eagle were provided directly to the Court. To that extent they are not evidence of one party or the other, but essential objective expert evidence provided for the assistance of the Court.

11. Dr Eagle was cross-examined by counsel for the defendant for approximately one hour with a forensic focus on the extent to which, if at all, the risk management assessment tools utilised by Dr Eagle, (and others), have any real legitimacy in assessing the level of risk presented to the community by the defendant.

12. Dr White psychologist, and Mr Ardasinski psychologist were required for cross-examination, but after issues were canvassed with Dr Eagle, a decision was communicated that they were no longer required.

The legislative scheme and principles

13. The primary object of the Act is stated in s 3(1):

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

14. A secondary object of the Act is to encourage rehabilitation of offenders. This is a feature of the legislation that has some importance to the issues debated at final hearing as a question mark was raised by the defendant over the extent to which conditions proposed by the State may be counterproductive to that object and are not conditions that have any real role in potentially reducing the defendant’s risk of violent offending.

15. At a final hearing for an ESO, the Court must first determine whether it is satisfied to a high degree of probability that Mr O’Hara poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).

16. The making of a ESO requires a state of satisfaction “to a high degree of probability”. This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).

17. The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, at [58], per Beazley P.

18. The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk” (at [44] per Beazley P), however consideration of an offender’s circumstances, including the offender’s interest in liberty and privacy may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.

19. In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that “unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

Mandatory considerations

20. The Court is required to have regard to certain mandatory considerations set out in s 9(3) of the Act which include, relevantly to Mr O’Hara, reports from court-appointed experts - here Dr Eagle and Dr White, assessments prepared by any qualified psychiatrist, psychologist or registered medical practitioner addressing the likelihood of the offender committing a further serious offence; the results of any statistical or other assessment on that issue; any report by Corrective Services NSW as to the extent to which Mr O’Hara can reasonably and practicably be managed in the community; any treatment or rehabilitation programs participated in or offered; options available to the offender that might reduce the likelihood of him reoffending; the likelihood that he would comply with the obligations of an ESO; his criminal history and the views of the sentencing court at the time any sentences of imprisonment were imposed and any other information available as to the likelihood that the offender will commit a further serious offence.

Criminal history, pattern of offending and views of the sentencing court at the time of sentencing

21. I adopt the summary of the offending history (which included the index offending) set out in State of New South Wales v O’Hara (Preliminary) [2021] NSWSC 1484 at [7]-[18] and [20]-[21]:

“[7] The defendant is just under 46 years of age. The material tendered on this application indicates that he has a long history of committing crimes of violence, most of which involve him having made a disproportionate response, sometimes grossly disproportionate, to an actual or perceived threat.

[8] The State's submissions on this application summarise the applicant's upbringing as being marked by physical abuse, both within his home and in boys' homes. The material that was tendered bears out that assessment.

[9] The defendant's criminal record commences with a number of convictions for assault, stealing and threatening police in 1989 when he was nearly 14 years of age. Some of these charges arose out of an incident on 4 July 1989 when he attempted to steal money from an opal shop in the centre of Sydney and absconded. At one point while being chased he threatened two shop assistants and others with a smashed bottle. The various sets of police facts that were tendered in relation to the other assault convictions reveal that they arose out of either interaction with the police or attacks on members of the public. Between 1989 and 1995 the defendant accumulated convictions for offences of dishonesty and violence. As an indication of how his offending was escalating, in August 1994 he was charged with possession of a pistol and a month later charged with assault with intent to rob.

[10] Of much greater significance is that on 1 November 1996 the defendant pleaded guilty to an indictment that charged him with committing murder on 5 March 1995. For that offence, on 11 December 1996 Sully J sentenced him to imprisonment for 12 years and 10 months with a minimum term of eight years and 10 months. The sentence was fixed to commence on 31 May 1997. It seems that the defendant had been arrested on 18 March 1995 on the charge of murder, refused bail, but on or about 31 May 1996 commenced serving a sentence of 12 months for two offences of assault occasioning actual bodily harm committed in custody. Hence, Sully J reduced the sentence imposed on the defendant for murder by one year and two months, being the period from March 1995 to May 1996, but fixed it to commence on 31 May 1997. Were it not for that adjustment the sentence imposed on the defendant would have been 14 years' imprisonment.

[11] The facts found by Sully J in relation to the crime of murder essentially comprise the following. On about 3 March 1995, five individuals burgled a house in Roseville and triggered an alarm before managing to get access to a safe. The following night, some of them returned. They persuaded the defendant to join them and asked him to bring a gun. He went to the house with two co-offenders but in the meantime the homeowner had arranged for a security guard to be present. The security guard intercepted a co-offender and held him down. The co-offender called out to the defendant in an attempt to get assistance. The defendant fired a warning shot to dissuade the guard to stop holding the co-offender. The offender later claimed to police that he feared being shot in the back as he left the scene, so he shot at the guard from a distance of about 20 metres but aimed down towards the ground. Sully J accepted the defendant did not intend to kill but found that he acted with reckless indifference to human life by discharging a shot into the darkness in the direction of the victim. Otherwise, it should be noted that Sully J's reasons contained a very careful analysis of the defendant's subjective case which involved mostly a full acceptance of the difficult upbringing he had experienced.

[12] It seems that at some point the 12 month sentence imposed for actual bodily harm committed in custody was increased on appeal to 18 months. One of those offences involved the infliction of what was said to be a burn mark on another prisoner. Further, the defendant was convicted of assaulting a prison officer in the execution of his duty in 1998 and was sentenced to a fixed term of six months' imprisonment.

[13] On 1 October 2009 the defendant committed the index offence, that is the offence of causing grievous bodily harm with intention to commit grievous bodily harm. It seems that the offence was preceded by an argument between the defendant and the victim, who was another prisoner. It seems that the victim was a champion kick boxer who was on remand for drug importation. The defendant had possession of a pillowcase in which he concealed a sandwich press. The two of them were separated following an argument during which there was some evidence that the victim had tried to choke the defendant in the cell. In any event, the victim sat downstairs in the pod area of the gaol. He was approached from behind by the defendant who swung the pillowcase two-handed at the victim's head knocking him unconscious to the ground. A second blow was landed in an overhead fashion before the defendant was restrained. The victim suffered hearing loss, disfigurement to his right ear and neurological difficulties. When he was interviewed the defendant said the victim had made a threat to him and "so I was going to kill him first before he got to me".

[14] On 3 September 2010 police attempted to arrest the defendant and charged him with the index offence when he reported on bail for another matter. However, he fled, and he was not arrested until November 2010 when he was formally charged.

[15] The defendant was convicted at trial of causing grievous bodily harm with intent to cause grievous bodily harm but was acquitted of causing grievous bodily harm with intent to murder.

[16] It is clear from the above narrative that, even though the offence was committed in October 2009, the defendant was not formally charged until November 2010. In the meantime he had been released from custody on the expiry of his murder sentence. After he was arrested in November 2010 and charged, he was released on bail again on 13 January 2011. His freedom did not last long as on 29 January 2011 his bail was revoked after he was charged with committing offences while out of custody including reckless wounding on 8 November 2010, break enter and steal on 20 January 2011 and 26 January 2011. The reckless wounding charge arose out of an argument between the defendant and another patron at a pub who was playing poker machines. The defendant stabbed him.

[17] For the offences committed in November 2010 and January 2011, the offender was convicted in October 2012. He was sentenced to 7 years’ imprisonment with a 3½ year non-parole period commencing 1 January 2011.

[18] In the meantime, on 14 December 2012 a jury convicted the defendant of the index offence. For that he was sentenced on 19 July 2013 to nine years' imprisonment commencing 26 November 2012 with a non-parole period of four and a half years. It is that sentence which expires on 25 November 2021. It seems the defendant has not been released on parole in the meantime.

…

[20] Since these events, the defendant has accumulated two further convictions of violence. On 13 July 2017, he was involved in the assault of another inmate at a correctional centre. Another inmate had stabbed the victim in the back and a third inmate had tried to stop the victim leaving a yard after which it is said the defendant removed his shirt and shaped up to the victim. He was initially charged with reckless wounding, but that charge was withdrawn and instead he was sentenced to 10 months' imprisonment for assault, to date from 15 July 2018.

[21] On 17 December 2016, the defendant recklessly caused grievous bodily harm to another inmate at the correctional centre. He attacked the victim from behind in a communal kitchen striking the right side of the head and causing a fracture of the face including the cheek bone, eye socket and sinus, all of which required surgical fixation. For this offence, on 1 November 2018 he was sentenced to 3 years' imprisonment to date from 25 May 2017 with a non-parole period of 1 year. The total sentence expired on 24 May 2010.”

22. When sentencing Mr O’Hara for murder in 1996, Justice Sully referred to Mr O’Hara’s genuine remorse, found that he did not intend to kill the victim and that it was a “robbery gone wrong” and noted that Mr O’Hara had entered an early guilty plea, also reflective of remorse.

23. In October 2012, Judge Charteris SC DCJ sentenced Mr O’Hara for the reckless wounding on 8 November 2010 and the break and enters in January 2011. He made positive comments about Mr O’Hara having good prospects for rehabilitation and that his life to date had been a difficult one. He noted that Mr O’Hara seemed to be a genuine man who had the potential to live in the community and obtain employment.

24. When sentencing Mr O’Hara in July 2013 for grievous bodily harm with intent to cause grievous bodily harm, (the attack with the sandwich press in custody) Coorey DCJ found extreme provocation in that the victim had threatened Mr O’Hara, called him a “dog”, and as a world champion kickboxer, had the potential to kill Mr O’Hara.

Court appointed experts

25. The Court obtains substantial assistance from recently conducted, thorough and independent assessments by appropriately qualified psychiatrists and psychologists. The need for these assessments and the centrality of their role is enshrined in the Act as they must be obtained if a final order is to be considered. Given the Court has to assess the current risk presented by a defendant, old and differently directed expert assessments would often need to be given less weight than recent assessments.

26. Issue was taken by counsel for the defendant about the validity of risk assessment tools used by Dr Eagle, Dr White and Mr Ardasinski referred to in their reports, in particular, the HCR-20 Version 3. It was submitted that:

“[44] In the absence of evidence concerning those tools, the Court is left with no way to assess their accuracy, reliability, utility and application to this particular offender. Without knowing, that is, without admissible evidence going directly to the issue, the Court cannot come to the view that any of the tools which have been applied are ‘the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence’.

[45] The Court is in effect asked to presume that the dataset of any particular tool includes only persons with histories and characteristics similar to the offender. How many of them were indigenous? How many had the resolve of the defendant to not be in prison at the time of their mother’s death is not known? Indeed, almost nothing is known about them at all.” [1]

1. Defendant’s Written Submissions

27. On that basis, objection was taken to large tracts of the reports of Dr White, Dr Eagle and Mr Ardasinski. I rejected the argument that there needed to be extraneous evidence about the risk assessment tools to make those parts of the reports using those tools admissible. It is no different to the application of any other medical knowledge and literature used to underpin an expert opinion. As argued by counsel for the plaintiff, an x-ray report is not invalidated by a radiologist’s inability to describe how the x-ray machine was built and it did not undermine that expert’s opinion on what the x-ray shows.

27. There is also no valid basis to exclude the material under s 135 of the Evidence Act 1995 (NSW) as it is not unfairly prejudicial to the defendant and the reports have strong probative value on the issues for decision under the Act, even though they are only a part of the mandatory material to consider.

28. What I needed to know about the assessment tools and their role and limitations was addressed within the experts’ reports. Dr Eagle’s structured professional judgment approach was further explained by her in her evidence:

Q. You considered a structured professional judgment approach is the most reliable form of risk assessment, is that correct?

A. Yes, I do.

Q. Why is that?

A. Well, it's considered by a number of commentators internationally (who are the authors of risk assessment tools and are highly experienced forensic psychiatrists and psychologists) and they believe that there are limitations with the actuarial risk assessment processes (which is your standard tick‑box or empirical form of risk assessment process).

And there are limitations with an unstructured clinical assessment, in the sense that it's unreliable, and that a structured professional judgment tool combines the reliability of and the transparency of the actuarial risk assessment, with the use of expertise, to be able to individualise the approach in a way that they consider to be much more reliable.

And then, in addition to that, the individual structured professional judgment tools, one of which is the HCR‑20 V3, have been extensively studied in terms of the reliability for risk management and they have been considered, in relation to those studies, to be reliable and favourable to the more, to the more other types of tools, if I should put it that way. Yep. [2]

2. Transcript dated 16 February 2022, page 38, lines 13-34

30. Further elucidation on the limitations associated with a “high risk” categorisation utilising the HCR-20 Version 3 risk assessment tool was obtained by counsel for the defendant during cross-examination of Dr Eagle:

Q. On page 7, under the heading Implications of study?

A. Yes.

Q. The first sentence is: "After controlling for time at risk, patients judged to be high risk by SRAI". What's SRAI?

A. The specific abbreviation used by the study they have referred to as Structured Risk Assessment Instrument.

Q. That would be the type that HCR is?

A. HCR is one of those. It doesn't specify structured professional judgment, too. So, it would include other tools.

Q. What this study found is: "After controlling for time at risk, the rate of violence in patients judged to be high risk is not constant, varying considerably and systematically within and between instruments"?

A. Yes.

Q. Would you agree with that?

A. Yes.

Q. It therefore does not seem possible to use them; to use a predetermined numerical probability?

A. That's correct.

Q. It goes on to say:

“This raises the question whether, if practitioners cannot make a reasonable estimate of base rate for the population in question and hence cannot estimate the likelihood of future violence from a member of a category, they should be using high risk categories at all.”

A. That' correct.

Q. You would agree with that?

A. Absolutely.

Q. And you are not able to make an assessment for the estimate of base rate of likelihood of violence for this population?

A. No. Actually HCR‑20 suggests we should formulate risk, look at the risk factors, then use them to inform risk management plans.

Q. What the HCR is actually directed at is not an assessment of risk but, rather, the formulation of management plans?

A. No. I mean, that's how, I mean, it's not a probability. I don't believe the HCR does not support probability estimates of risk. Risk assessment is a process, and the process involves the formulation of risk so that we can identify relevant risk factors that may result in violent behaviour in the future so as to consider the types of scenarios that might be consistent with an increased risk and then formulate management plans to manage that risk. But in some cases, there may well ‑ well, there may not be interventions that can manage that risk. [3]

3. Transcript dated 16 February 2022, page 59.10-60.11

31. This was a specific illustration in my view of the type of limitations around such tools, candidly highlighted by Dr Eagle at the beginning and the end of her report which I deal with below. It should also be borne in mind that the risk assessment tools are not directed to the risk of committing a “serious violence offence” but just “violent offending” more generally, and so the conclusions reached by any expert by application of that tool does not purport at any level to pre-determine the Court’s conclusion on the issue of the risk to which the legislations is directed.

(i) Dr Eagle

32. Dr Eagle acknowledged in her January 2022 report the limits of the risk assessment process required to be undertaken:

“[9] There are inherent limitations in any cross-sectional psychiatric assessment. The opinions in this report are based, to some extent, on a cross sectional assessment of Mr O’Hara. Collateral information was provided and has been taken into account in forming my opinions. The sources of information relied upon are identified above and, where relevant, in the body of the report.

[10] Any risk assessment process also has inherent limitations. A structured professional judgment approach is considered the most appropriate and reliable form of risk assessment with a view to identifying evidence based risk factors that can be relied upon to formulate a person’s individual risk for the purpose of developing a risk management plan. The limitations associated with the risk assessment tools utilised in this report are discussed in the risk assessment section below.”

…

“[147] There are inherent limitations in any process of risk assessment, although the best evidence supports a structured professional judgment approach. Risk assessment is most effectively used to develop a risk formulation utilising evidence based risk factors for the purpose of informing ongoing management and rehabilitation (rather than for prediction of reoffending).

[148] The HCR 20 version 3 has been used to assess Mr O’Hara’s risk. The HCR 20, version 3 is a structured professional judgment risk assessment tool designed to assist in the risk assessment and risk management of forensic and offender adult populations. The instrument has been evaluated as suitable for use in correction-al, civil and forensic psychiatric, whether community or institutional based. The instrument assesses the risk of interpersonal violence and that is defined as “actual, attempted, or threatened infliction of bodily harm on another person.” The HCR 20, version 3 user guide states that serious physical harm clearly meets the general definition of violence used in the instrument. The guide further notes that violence of differing severities and forms are correlated in the research, such that a person who is at an increased risk of violence will be at an increased risk of more serious forms of violence, and that the difference between violence that causes serious harm and violence that does not is often fortuitous (at page 37 of the HCR user guide). Reference is made to a meta-analysis on the HCR 20 version 2, that indicated that the instrument predicted serious and less serious forms of violence with comparable accuracy.

[149] The HCR 20 version 3 does not provide statistical information regarding the likelihood of persons with histories and characteristics similar to those of Mr Davis committing a further violent offence. Recent research has indicated that assigning probabilities to future violent risk on the basis of structured risk assessment is not particularly reliable or useful and that summary risk ratings based on a formulation of risk had greater predictive validity than numerical scores based on ratings of the presence of risk factors.”

33. Dr Eagle outlined her diagnosis of Mr O’Hara:

“[144] Mr O’Hara did not display any signs or symptoms of a major mental disorder Such as a psychotic illness or major disturbance of mood, at the time of this assessment. He has displayed periods of mood disturbance in response to stressors. He has previously been diagnosed as an adjustment disorder, with depressive symptoms. He is at risk of serious mood disturbance and fluctuations in mood due to underlying psychological vulnerabilities such as emotional instability, maladaptive coping skills, low self-esteem, hyper vigilance and poor frustration tolerance. These psychological vulnerabilities have developed in the context of an invalidating and traumatic childhood upbringing and ongoing repeated exposure to physical and psychological abuse. Psychological vulnerabilities have likely contributed to problems with interpersonal interactions, and difficulty developing and maintaining stable relationships, in addition to his offending behaviour.

[145] Mr O’Hara has a substance use disorder on opioid maintenance treatment (methadone). He has engaged in the use of cannabis, heroin and opportunistic substances. Despite spending much of his life incarcerated, Mr O’Hara has used illicit and unprescribed substances in the community and in custody to manage emotional distress. He has been reported to have diverted methadone and pre-scribed medications. He has unsuccessfully tried to control his substance abuse.

[146] Mr O’Hara has displayed pervasive behaviours and attitudes consistent with an antisocial personality disorder. He has engaged in repeated unlawful behaviours. He has displayed impulsivity and aggressiveness, including engaging in repeated physical fights. He has shown a reckless disregard for the safety of others and has not sustained consistent work behaviour or demonstrated any sense of social responsibility in the community. He has displayed behaviours consistent with conduct disorder prior to the age of 15 years old. Antisocial personality traits and attitudes have likely arisen in the context of a disrupted and dysfunctional childhood upbringing characterised by a lack of positive role models, exposure to parental and institutional abuse and early incarceration in correctional institutions.”

34. Under the heading “Clinical Factors”, Dr Eagle made reference to currently present positive and negative matters:

“[153] Mr O’Hara appears to have shown an improvement of insight into his offending, mental state and psychological needs over the last six months. He has continued to display cognitive distortions, such as justifications for violence, a heightened perception of threat and a distorted attribution of responsibility for past behaviours. This reflects ongoing problems with insight and cognitive instability. His level of emotional and behavioural instability has significantly lessened, and this appears to have been sustained following his release into the community. He does not appear to have displayed any violent ideation over the last six months and has been compliant with the interim supervision order. He has not shown any active signs or symptoms of mental illness. Although, Mr O’Hara continues to display some clinical risk factors (problems with insight and cognitive instability), he appears to have improved clinically over the last few years and this has been sustained during his transition into the community under the conditions of an ISO.”

35. With respect to fluctuating or dynamic risk factors, Dr Eagle observed:

“[159.5.8] Mr O’Hara has spent a lengthy period of time in a correctional facility. He has displayed an improved attitude towards his offending, supervision and his behaviour. He has not previously been able to maintain a prosocial lifestyle in the community for any period of time. His ability to develop a prosocial lifestyle and avoid reoffending in the community is yet to be tested. He is likely to require considerable support and encouragement to tolerate the inevitable stressors associated with community living, including exposure to substances, interactions with the public and association with pro-criminal peers. If he is able to develop prosocial relationships, establish a stable lifestyle and living situation, secure employment and avoid antisocial peers, his risk of committing a further serious offence is likely to reduce.”

36. Dr Eagle concluded that Mr O’Hara is in a category of offenders at a high risk of violent reoffending with predominant factors being “entrenched antisocial cognitions regarding the world and others”, his emotional instability and a susceptibility to substance abuse and peer influence. She noted a significantly elevated risk of reoffending without appropriate support and interventions.

37. Dr Eagle concluded that it was “likely to take at least 4 years of supervision and support for Mr O’Hara to address his risk factors for offending and sustain his lifestyle, allowing for a gradual withdrawal of supervision”.

(ii) Dr White

38. Dr White is a psychologist who carried out a s 7(4) assessment of the defendant in January 2022.

39. Under the heading “Mental Health”, Dr White took this history:

“Mr O’Hara reported experiencing fear and distress as a child in response to his father’s violence at home. He commented that he resented his father for years, but later in life came to understand that his father was raising him “the way he was taught” and that this had helped him to “toughen up” for his time in institutions. He discussed a profound impact of the reported physical and emotional abuse suffered at the boys’ home. He expressed an intense fear of being sexually abused there and said that he had used physical violence to protect himself from any perceived threat. Mr O’Hara said that through violence he garnered respect from other boys and “got a feel for it [fighting]” and a sense of identity as well as being feared by others. He also recognised that this meant others would “always try and take you down”, and made him hypervigilant. He said that his time in boys’ homes had resulted in “normalising of extreme violence”. He said that his experience of adult prison had been a “giant version of boys’ homes”. He commented that he dealt with bullies though violence. Mr O’Hara denied that he bullied others, saying he was “never a bully” and was always reacting to a situation.” [4]

4. Report of Dr Amanda White, dated 20 January 2022, pages 4-5

40. Like Dr Eagle, Dr White pointed out the limitations in attempting, as a clinician, to accurately predict whether a person will reoffend:

“At present, it is not scientifically possible for a clinician to accurately predict whether an individual offender will or will not reoffend. The forensic field has developed instruments from which an estimate can be calculated, that is derived from the empirical literature specifying features associated with risk and clinical examination and formulation of how those present features might operate in the individual to the assessment. It has been demonstrated that this allows for a more accurate evaluation of risk rather than using clinical judgment alone.The risk assessment process is multifactorial, drawing on actuarial methods and structured professional judgement tools to evaluate static (unchangeable) and dynamic (changeable) factors that have contributed to violent offending behavior. Dynamic risk factors are also important to consider in terms of treatment planning and risk management.” [5]

5. Report of Dr Amanda White, dated 20 January 2022, page 11

41. Dr White added:

“Assessment combining both static and dynamic risk factors which allows for consideration of information about likelihood, imminence, frequency and severity of risk is currently considered one of the best practice approaches.” [6]

6. Report of Dr Amanda White, dated 20 January 2022, page 12

42. In addressing risk formulation, Dr White observed:

“Mr O’Hara has a chronic history of violent offending and antisocial behaviour commencing at an early age across multiple contexts (school, home, community and institutions), inclusive of critical developmental stages. His acts of violence have resulted in serious physical injuries and death. He has had little opportunity to establish prosocial and meaningful relationships of both an intimate and non-intimate nature, with most of his associations being with offenders. From an early age Mr O’Hara had violence modelled and encouraged as a way to resolve conflict, manage his emotions and protect himself from perceived or real threat. Violence and aggression garnered him respect in the institutional setting during his formative years when one’s sense of identity is being established, and a reputation and status which he came to seek out and need. His violence and reputation have given him his identity and formed a large part of his character, and has been entrenched for over 30 years. He was a victim of emotional and physical abuse at home and then at boys’ homes. He never felt safe and developed a deep anger and resentment towards those who were in positions of authority and those meant to “care” for him.

He entered the criminal justice system at a young age and has spent the overwhelming majority of his life in custody. In the world he has known, he has found violence a means of survival and used this as an effective coping strategy. He is destabilised by perceived injustices, sometimes considering himself as an avenger, punishing those he determines ‘bullies’. He will react if challenged or provoked, with reduced self-regulation in these circumstances. He has a low level of education and no significant employment history. He has a history of substance use reflecting poor coping mechanisms and it is likely this is still a relevant issue for him. He self-discloses a constant state of anger and heightened hypervigilance, suspicion and defensiveness, which have fed into his cycle of violent offending and are likely underpinned by personality dysfunction typified by antisocial traits. His trauma response and violent tendencies have been reinforced through his experiences. He is yet to develop a sense of identity outside the prison context, has limited exposure to life in the community, and is yet to develop an awareness and understanding of potential triggers, stressors or challenges in this setting, and how to respond. Without adequate outlets and ways to identify and manage hypervigilance and perceived threats, he is likely to respond with violence. He has not yet ascertained the level of assistance required to address trauma and alter his thinking. He presents with some longstanding cognitive distortions, some of which appear to be starting to shift but would benefit from further exploration and fostering.

He demonstrates a history of minimising his role in violent acts and externalising issues. In recent years there appears to have been a reduction in violence, better engagement, a shift in his cognitive thinking, and motivation to change the course of his life. Largely, this hinges on a promise made to his mother that he would not return to gaol and resolve to keep his word. He presents with reduced insight into his triggers for aggression and need for treatment to address his violent offending and risk, and perhaps at best a naïve view that he has his behaviour under control and will not relapse. His level of responsiveness to more intensive psychotherapy to address his violent offending cycle and trauma is yet to be determined, although history suggests some resistance to the intensive nature of this and the level of work required. Overall, Mr O’Hara does not present with any well-formed plans regarding treatment, or the amount and intensity required to address his level of risk.” [7]

7. Report of Dr Amanda White, dated 20 January 2022, pages 13-14

43. These are similar concerns to those voiced by Dr Eagle in particular regarding “minimising his role in violent acts” and “externalising issues”.

44. Dr White’s conclusions and recommendations are:

“Overall, results from the current assessment indicate that Mr O’Hara currently requires a high level of intensive intervention and supervision to prevent further violent offences. Despite apparent improvement over the past few years and evidence of reduced violence, Mr O’Hara has significant risk factors which place him at risk of further violence for which he has not received adequate treatment. In particular, these include ingrained response to utilise violence and aggression, particularly in response to perceived threats and trauma. It is anticipated that he will face challenges transitioning to the community and his support network is limited. However, it is important to recognise that an individual’s overall risk level is dependent upon the level of supervision being received and can fluctuate over time depending on the presence or absence of certain factors. Currently under his ISO he is receiving a high level of supervision. As noted above, Mr O’Hara also possesses several mitigating factors that may serve to reduce his risk including family support and contact, abstinence from substances which can destabilise his thought processes and routine, and engagement in the community, which if fostered and sustained will likely assist to reduce his risk of violence over time.” [8]

8. Report of Dr Amanda White, dated 20 January 2022, page 15

45. Dr White referred to both 2 and 3 years as appropriate periods for supervision in her report but in a follow up email, prompted by an email from the plaintiff’s solicitor, she stated that she had concluded a period of 3 years supervision was appropriate.

Reports and assessments of other psychologists and/or psychiatrists or medical practitioners as to the likelihood of the defendant committing a further serious offence; reports of psychologists or others applying statistical or other risk assessments regarding persons with histories and characteristics similar to the offender

46. Most of these assessments pre-date 2015 and so are of somewhat limited relevance to assessing the current state of risk. The relevance is that they refer to long term diagnoses made of antisocial personality disorder and trauma-related symptoms (or PTSD) leading to hypervigilance. The reports also contain the social history of Mr O’Hara. He has clearly had an unstable home environment as a child with domestic violence and abuse and an absence of positive role models.

47. Mr Ardasinski and Ms Cieplucha concluded on their assessment in April 2021 that Mr O’Hara was in the category of high risk of reoffending, given, amongst other things, his long history of violence, but noting that his violence had reduced over the last 2 to 3 years (which is now 3 to 4 years given the assessment is almost a year old and there has been no other violence).

Corrective Services Risk Management Report(s) re management in the community

48. Ms Grabham and Mr Glover’s 2021 report outlined a suite of ESO conditions and how those conditions would be capable of managing Mr O’Hara’s risk in the community. Ms Grabham’s affidavit explained the inter-relationship of monitoring conditions and their purpose and role in reducing risk.

Treatment and rehabilitation programs offered in custody and the defendant’s participation in those

49. Mr O’Hara attended the EQUIPS Addiction and Aggression courses. He attended the (VOTP) Violent Offenders Therapeutic Program twice, but as pointed out by Mr Ardasinski, because of his “significant trauma background”, he was found to be unsuitable to complete VOTP.

50. This is not Mr O’Hara’s fault.

51. Mr Ardasinski noted individual psychological therapy would be more suitable, but that Mr O’Hara has not been provided with this in custody.

What is the likelihood that the offender will comply with the ESO obligations?

52. Dr Eagle offered this view in her report:

“[158] Mr O’Hara has over the last few years, in the context of positive support and influence in the correctional setting and a stable controlled environment, improved in his behaviour and emotional regulation skills. He has shown the capacity to learn, develop and exercise self-control. He continues to display entrenched problematic cognitions regarding the world and others, and has ongoing psychological vulnerabilities that will impact on his ability to navigate inter-actions with others, relationships and cope with stress. However, his progress suggests that an appropriately supportive supervision and rehabilitation regime has the potential to moderate his risk of ongoing offending and facilitate a successful transition into the community.”

53. In my opinion Mr O’Hara has excellent potential to remain offence free and comply with the ESO conditions, but he needs the support and monitoring provided by an appropriately structured ESO to help him in that quest. To that extent the ESO I will impose serves the secondary purpose of the Act in encouraging rehabilitation of offenders.

What has been his compliance so far with prior ESO or parole?

54. Mr O’Hara’s compliance with his ISO during close to 3 months in the community has been very good.

55. Dr Eagle commented upon Mr O’Hara’s “apparent ability to tolerate initial stressors associated with his reintegration into the community and the comprehensive supervision regime…”. This is a significant positive consideration.

56. Mr O’Hara has also reflected to his assessors that the structure provided by the ISO conditions has helped him and it was “not as bad” as he thought it would be. This shows a mature attitude that is a further positive matter to take into account.

Does the defendant pose an unacceptable risk of committing another serious violence offence if there is no ESO?

57. The evidence tendered and that I have evaluated satisfies me to a high degree of probability that the defendant does pose an unacceptable risk of committing a serious violence offence if not kept under supervision under the order.

58. Whilst so far any reintegration stressors confronted by Mr O’Hara on the ISO have been well-managed, the risk of sudden violent response to an actual or perceived threat has not evaporated. There are many years of entrenched behaviours and thought patterns that are yet to be treated, and this risk needs to be monitored and managed for a period in the community where interactions are less controlled than in custody.

59. Mr O’Hara knows that he is the person who controls his responses to stressors and events, but the report writers have all referred to a lack of real insight into his triggers for violence. Judges who have sentenced him for violent offending have referred to his positive attitude, valid perception of threat related to some of his offending (and violent over-reactions in others) and his genuine remorse, but still there were incidents of violent offending well after these observations in 2016 and 2017 while in custody.

60. I am satisfied Mr O’Hara is entirely genuine in his wish to “turn his life around” and he has made large strides towards that. The question is, does this comprise a sufficient consideration to cause me to decline to make an ESO at all, or simply to make it shorter and/or on less intrusive conditions?

Should an ESO be made?

61. Mr O’Hara has spent nearly all of his adult life in custody. He has had a complex and traumatic upbringing which has left him with cognitive distortions around violence. He – to an extent understandably – has hypervigilance. A lot of his offending has its origins in that hypervigilance and his sudden violent responses to perceived (and actual) threats.

62. I am satisfied that he has shown remorse for his past violent offending and a determined and positive approach to avoiding violence in his last few years in custody. There has been a marked reduction in offences in custody over the last five years.

63. He is intelligent. He is optimistic that he can avoid trouble. As observed by Dr Eagle, he has a number of positive factors, namely strength of character, the fact that he is articulate and intelligent, and that he is in regular contact with his family and has their support.

64. It is worth noting that Mr O’Hara attended Court for his hearing and throughout the day calmly observed, occasionally instructing his solicitor and counsel in an appropriate manner.

65. The question as to whether to impose an ESO is a complex one, involving as it does a weighing and balancing of risk and unknowns, against incursions into the liberty of a person who has already served his or her sentence(s) for prior offending.

66. This is aptly described by Gleeson JA said in Lynnv State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57at [148]-[149]:

“[148] It can be readily accepted that orders for the supervision or detention of a “high risk violent offender” involve a significant restriction on the personal liberty of the subject outside the ordinary principles of the common law. The basis for that interference with liberty in specific cases is to be found in Parliament’s determination that such orders may be made for the protection of the public. The pre-condition for the making of such orders is that the offender is a “high risk violent offender”: s 5E(1), Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of “unacceptable risk” in s 5E(2) of the Act. There is no “balancing” exercise involved in the court’s assessment of the threshold of “unacceptable risk”.

[149] The interests of the offender in liberty and privacy are to be taken into account in the exercise of the court’s discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order. Although not explicit in the Act, conceptually the exercise of the discretionary power can be viewed, as Basten JA has suggested, as involving an intermediate stage of considering the appropriate conditions which might be imposed as part of an extended supervision order, before considering whether such an order is otherwise appropriate. I agree with Basten JA that consideration of the possible intrusions on the offender’s liberty and privacy are appropriately taken into account at that intermediate and final stage of exercise of the discretionary power. Contrary to the appellant’s submissions in the present case, there is nothing inherently artificial in separating the adverse consequences for him and dealing with them only after the threshold assessment of unacceptable risk has been made.”

67. I have concluded that an ESO should be made, but because of the positive factors already exhibited by Mr O’Hara, that order should be significantly shorter in time than the length contended for by the plaintiff.

68. I am satisfied that to do so serves both the safety of the community and promoting rehabilitation of the offender in providing for a focussed period to demonstrate his capacity to remain free from violent offending, but with the assistance of focused supervision and monitoring for that shorter period. Mr O’Hara would be well aware that the plaintiff can apply for a further order if there is a basis demonstrated for it to do so. Mr O’Hara has the power over that prospect, depending on his compliance and engagement in the ESO.

Conditions and length of the ESO

69. Section 11 of the Act provides for the Court to impose conditions that it considers appropriate, and sets out a series of the types of conditions that could be considered to be appropriate.

70. The reality of applications under the Act brought to this Court is that almost invariably, the plaintiff submits the same or a very similar suite of conditions in every case. The common sense and interaction of those proposed conditions, in terms of reducing the risk presented to the community by a defendant, is sometimes very evident and sometimes not.

71. In this case, substantial challenge was made by counsel for the defendant to the appropriateness of a number of the conditions. As observed by Beech-Jones CJ at CL at the preliminary hearing, in Lynn, Basten JA at [124] made some apposite remarks concerning the relationship between the potential conditions that might be imposed and the identified risk:

“[124] The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order.”

72. To that I would add the following observations of Basten JA at [129] to [130] as applying to my task at this stage of my decision:

“[129] The second step, not reached until the court is comfortably satisfied that the offender presents a heightened risk of further offending, absent supervision, involves a determination of what conditions may be imposed with the purpose of diminishing the risk to an acceptable level. It is self-evident that this will involve a “balancing” exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective. If the evidence suggested that effective supervision (described as “adequate supervision” in s 5G(1)) would not be provided by an extended supervision order, the State might consider an application for a continuing detention order: none was sought in the present case.

[130] The submission that this step engages a balancing exercise involving possible intrusions on the applicant’s liberty and privacy should be accepted and they will properly be treated as relevant considerations in ensuring that unjustifiable conditions are not imposed.”

73. Obviously questions of incursions into a defendant’s liberty include evaluating with care the appropriate length of an ESO. The plaintiff contended four years was appropriate, and the defendant, one year. I am satisfied something much closer to the defendant’s position is appropriate given in particular the positive matters demonstrated by the defendant over the last few years. The length of the ESO will be 18 months.

74. Counsel for the defendant argued that the Court should impose only a small number of selected conditions, none of which would provide for monitoring and checking on Mr O’Hara or much of a basis to require him to comply with supervisory steps and strategies. The argument posed was that anything more than that would be unduly intrusive. However the package of limited conditions proposed by the defendant would in my view amount to no more than the defendant “checking in” weekly and telling his DSO what he had been doing.

75. It would not be consistent with the purposes of the Act to impose a package of conditions that has no synergy to provide adequate supervision of an offender because there is no in-built basis for a DSO to monitor and manage Mr O’Hara’s behaviour, should he begin to stray into potential risky behaviours or associations. For that reason I have imposed many of the conditions contended for by the plaintiff, some with adjustments to take into account accepted submissions made by counsel for the defendant.

Monitoring and reporting: Proposed conditions 1, 4, 5, 6 and 7

76. The defendant argued that “supervision and guidance” stated in proposed condition 1 is not provided for in s 11 and so is an “over-reach” of power. The plaintiff submitted that s 11 is a non-exhaustive list of permissible conditions (State of New South Wales v Davison (Final) [2019] NSWSC 1140 at [92]), and it is consistent with the provision in s 11 that an ESO “may direct an offender to comply with such conditions…” and so is simply an assertion of who will manage that direction.

77. Given the expert views as to the susceptibility for relapse into an unstable lifestyle, some express power to manage a situation proactively is necessary. The condition in the form contended for by the plaintiff is imposed.

78. Electronic monitoring and a schedule of movements is obviously intrusive, but has a significant role in assisting the defendant to plan and manage his time and stay out of trouble. It is in my view protective of the community, assists the defendant with compliance, and is appropriate and so conditions 4 to 7 are imposed.

Accommodation: Proposed conditions 9 and 10

79. I have adjusted the curfew to 10:00pm to 6:00am. If the defendant obtains suitable employment that requires further adjustment to the time of curfew, no doubt that can be arranged.

80. I am not prepared to impose condition 10 because to do so would criminalise failure to comply with a “rule or by-law” of accommodation where Mr O’Hara lives. There is no way of knowing whether such by-laws or rules made are reasonable or necessary. It would be unfair to the defendant to impose such a potentially problematic condition.

Employment, finance and education: Proposed conditions 18, 19 and 20

81. I have adjusted condition 18 to allow the defendant some flexibility to seek out and obtain useful work, including volunteer work, without having to first have it approved. He must notify the DSO first, but Mr O’Hara is not a person who should be kept from exploring or involving himself in work because of the potential risk of committing a serious violence offence. If anything, having something useful and meaningful to do is protective.

Non-Association: Proposed condition 27

82. The defendant opposed this condition that provided that Mr O’Hara must agree to his DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. It was argued that it will induce a feeling of no control or ability to navigate his own interactions with others.

83. The plaintiff argued that because Mr O’Hara’s violence is reactive, and potentially overreactive, people living or working with him need an opportunity to develop safety plans. There is also a concern that he will minimize his past offending.

84. Both arguments have merit. In my view the defendant should have a reasonable opportunity to disclose his offending, but he must do so accurately, hence the adjustment I have made to the condition proposed.

Weapons: proposed condition 30

85. Given the defendant’s utilising of available items as weapons, some focus on what is and is not permitted in that regard is appropriate. The proposed condition has the effect of making the defendant mindful as to how he conducts himself at home as well as in public to ensure he is not unintentionally (or intentionally) conveying a sense of threat. For these reasons a condition making what is and is not allowed to be held or owned by him and in what circumstances is appropriate.

Search and Seizure: proposed conditions 42 and 43

86. Powers of search and seizure have the effect of keeping Mr O’Hara mindful of weapons and their potential threat in his living environment. It is an appropriate condition for both safety of the community and safety of the staff supervising him.

Medical intervention and treatment: proposed conditions 48, 49, 50, 51, 52, 53 54 (now agreed) and 55

87. Counsel for the defendant expressed concern that these conditions were repetitive and unnecessarily broad.

88. Whilst on their face they may appear that way, they are directed to slightly different – and important – aspects of Mr O’Hara’s supervision.

89. Condition 48 deals with the premise that Mr O’Hara should participate in these identified treatment goals and approaches. This is important given his unmet treatment needs.

87. Condition 49 requiring identification of health care practitioners is important information for a DSO to have in terms of schedule of movements and health issues that may be relevant to know about and to help ensure these are being adequately managed to keep Mr O’Hara well and his stress levels down.

88. Condition 50 emphasises Mr O’Hara’s obligations to attend and engage in relevant psychological, psychiatric and other relevant therapy sessions as well as cooperating with the process of securing a mental health care treatment plan with his GP, so this condition highlights the requirements Mr O’Hara needs to personally fulfill.

89. Condition 51 is appropriately directed to Mr O’Hara’s admitted off-script use of legally prescribed drugs to get a “buzz”.

90. Condition 54 was argued to be more properly confined to relevant public authorities rather than being “at large”. I accept that argument and so the confinement to police, DSO and CSNSW.

91. Condition 55 – the disclosure of criminal history – I have determined should be limited to GPs, psychiatrists and psychologists as the relevant treating professionals who need to know about his criminal record. The defendant should, in agreeing to that, be fully aware of the importance that disclosure has to his treatment. More general revelations to other “health care professionals” I did not see as necessary as a group. This should be the subject of discussion with the DSO and management under condition 27.

Orders

95. I make the following orders:

1(a)   Pursuant to ss 5B and 9(1)(a) of the Act, the defendant is subject to an extended supervision order for a period of 18 months from midnight 24 February 2022.

1(b)   Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, is to comply with the Conditions set out in the Schedule to this Judgment.

1. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

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O'Hara - Schedule of Conditions (193585, pdf)

Endnotes

Decision last updated: 28 February 2022