State of New South Wales v Ryan (Final)

[2023] NSWSC 1062

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Ryan (Final) [2023] NSWSC 1062

Hearing dates:

15 August 2023

Date of orders:

5 September 2023

Decision date:

05 September 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) The State shall bring in Short Minutes of Order reflecting this judgment by 4pm, Tuesday 5 September 2023.

Catchwords:

HIGH RISK OFFENDER – final hearing – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – consideration of factors in s 9 – disputed conditions resolved - extended supervision order made

Legislation Cited:

Bail Act 2013, s 77A

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 6, 8, 9, 12

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14

Cases Cited:

ASIC v Rich (2006) 235 ALR 587; [2006] NSWSC 826

State of New South Wales v Boney(Final Hearing) [2020] NSWSC 1375

State of New South Wales v Coe (Preliminary) [2023] NSWSC 644

State of New South Wales v Fisk [2013] NSWSC 364

State of New South Wales v JC (Preliminary) [2023] NSWSC 31

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

State of New South Wales v Ryan [2023] NSWSC 236

State of New South Wales v Wynne (Final) [2021] NSWSC 488

State of NSW v Biber(No 2) (Final) [2021] NSWSC 104

State of NSW v Kamm [2016] NSWSC 1

State of NSW v RC (Final) [2023] NSWSC 26

State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813

Wilde v State of New South Wales [2015] NSWCA 28

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Benjamin Michael Ryan (Defendant)

Representation:

Counsel:
H El-Hage (Plaintiff)
R Khalilizadeh (Defendant)

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

File Number(s):

2022/374338

JUDGMENT

1. By a Summons filed on 9 December 2022, the State of New South Wales (“the State”) sought the following final relief in relation to Mr Benjamin Michael Ryan (“the defendant”):

1. An extended supervision order (“ESO”) for a period of three years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”);

2. An order pursuant to s 11 of the Act, that the defendant comply with the conditions set out in the Schedule attached to the Summons for the period of the ESO.

2. A Further Amended Summons was filed on 10 August 2023 in which the final orders sought by the State remained the same, but the Schedule of conditions had been revised.

3. On 14 August 2023, both the defendant and the State filed further written submissions which reflected recent developments relating to the defendant’s drug overdose. In these further written submissions and in closing submissions at the hearing, the issues in dispute were narrowed to conditions 13 and 38 (per the Schedule in the Further Amended Summons).

Procedural History

4. On 3 March 2023, following a preliminary hearing of the matter, Fagan J made orders appointing qualified experts to conduct examinations of the defendant and write a report and imposed an interim supervision order (“ISO”) on the defendant: State of New South Wales v Ryan [2023] NSWSC 236 (“Ryan No 1”). His Honour’s judgment detailed much of the background to this application, which I will not repeat.

5. Pursuant to those orders, reports were provided by Dr Sathish Dayalan, forensic psychiatrist, on 15 May 20223 and Ms Lisa Zipparo, clinical neuropsychologist on 15 May 2023.The matter was then listed for final hearing on 15 August 2023.

Evidence

6. The plaintiff relied on the following evidence in support of the application:

1. Affidavit of David Yang affirmed 12 December 2022, together with Exhibit DY-1;

2. Affidavit of Kelli Grabham affirmed 26 February 2023;

3. Report of Dr Sathish Dayalan dated 15 May 2023;

4. Report of Lisa Zipparo dated 15 May 2023;

5. Affidavit of David Yang affirmed 14 July 2023; and

6. Affidavit of John Banton sworn 17 July 2023.

7. Affidavit of David Yang affirmed 8 August 2023;

8. Affidavit of John Banton sworn 11 August 2023.

9. Updated OIMS Case Notes filed in Court.

7. The defendant relied on the following evidence in the final hearing:

1. The affidavit of Michelle MacDonald affirmed 20 February 2023.

2. The affidavit of Michelle MacDonald affirmed 3 March 2023.

3. The affidavit of Hannah Bruce affirmed 4 August 2023.

The Statutory Preconditions

8. Section 5B of the Act provides as follows:

5B Making of extended supervision orders—unacceptable risk

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

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

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

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

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

9. A “serious offence” is defined at s 4. It includes a “serious sex offence”. A “serious sex offence” is defined in s 5. It includes certain offences under Div10 of Pt 3 of the Crimes Act 1900 (NSW) (and other enumerated offences).

10. As noted by Fagan J in Ryan No 1, the statutory preconditions in s 5B(a)-(c) are satisfied in this matter. His Honour stated and, I agree, with respect, at [3]:

[3] He is an "offender" within the definition in s 4 of the Act. The index offence was a "serious violence offence", as defined in s 5A(1)(a). As the defendant is currently serving a sentence of imprisonment for the index offence, he is a "supervised offender" and is amenable to the making of an extended supervision order by force of s 5B(a) and s 5I(2)(a)(i). The summons having been filed during the defendant's current prison term for the index offence and within the last 9 months of that term, as required by s 6(1), complies in all respects with the formal and jurisdictional prerequisites of the Act. On final hearing, the only further question that the Court would have to determine is whether it is "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an order": s 5B(d).

11. I also note that both parties accept that ss 5B(a)-(c) are satisfied.

Section 5B(d) of the Act and the Assessment of s 9 of the Act

12. In the assessment of whether the defendant poses an unacceptable risk of committing another serious offence under s 5(d), it is appropriate for the Court to consider the factors under s 9 of the Act in addition to any other matter it considers relevant: see State of NSW v Kamm [2016] NSWSC 1 at [42]; State of New South Wales v Fisk [2013] NSWSC 364.

13. Section 9 of the Act provides as follows:

9 Determination of application for extended supervision order

(1) The Supreme Court may determine an application for an extended supervision order—

(a) by making an extended supervision order, or

(b) by dismissing the application.

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

(2A) (Repealed)

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

(a) (Repealed)

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

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

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

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

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

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

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

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

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

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

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

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

14. Again, I note that the parties were agreed that the defendant poses a risk under s 5(d). The defendant did not oppose the making of an ESO.

15. Ultimately, this is a question for the Court but, on the evidence, I have reached the requisite state of satisfaction for the purposes of s 5B(d). I am satisfied, per s 9(2) of the Act, that the safety of the community would be best served in the making of an ESO.

16. I turn now to consider the factors under s 9(3) in that context.

The Defendant’s Background

17. The defendant is a 42-year-old Aboriginal man with several vulnerabilities, including a history of homelessness, trauma, mental health issues and drug addiction. He has an extensive criminal history which includes matters involving violence, as well as matters that are directly or indirectly related to his drug addiction.

18. The defendant has very recently been discharged under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in respect of two charges of stalk/intimidate and one count of failing to comply with an ISO.

The Index Offences

19. The index offences were helpfully summarised by the State in their written submissions and are extracted here as follows:

On 23 April 2021, Mr Ryan was sentenced for one count of recklessly inflicting grievous bodily harm contrary to s. 35(2) of the Crimes Act 1900. Two further offences of custody of a knife in a public place and have custody of an offensive implement in a public place contrary to ss. 11C(1) and 11B(1) of the Summary Offences Act 1988 respectively were taken into account on a Form 1.

Herbert DCJ imposed a sentence of imprisonment for 3 years, commencing on 26 May 2020 and expiring on 25 March 2023 with a non-parole period of 1 year and 8 months, expiring on 25 November 2021.

The index offence occurred on 9 March 2020 while the defendant was living in a motel in Katoomba. The defendant was mixing the drug ice in the motel room when the victim arrived, intending to tell him that the friendship was over. The defendant’s brother, Chris, was also briefly present, but left when an unknown male arrived. The defendant then appears to have accidentally dropped the drug he was mixing and became angry either at that point or when the victim then told him the friendship was over. The victim then left but then returned to retrieve his car keys. The victim knocked on the door. He then kicked the door when he was told to “fuck off” by the defendant. The victim kicked the door again, at which point the defendant opened the door and struck him to the face with a tomahawk.

The defendant stood over the victim and said: “not so tough now cunt, ay?”. While he attempted to offer basic aid, the defendant also told the victim to put his hood up and stay in the corner of the motel room and stop bleeding and that the defendant might then take him to hospital (which he later did). The incident was captured on external CCTV. The victim suffered significant injury including a complex jaw fracture, loss of teeth, a significant scar and permanent left sided facial nerve damage.

When police went to arrest the defendant three days later, he was found sleeping rough in Katoomba, asleep with a Leatherman tool in his right hand. The tomahawk was concealed in his pants. The defendant told police and medical staff that some people thought his brother had stolen $1000 from a car and were coming to get him with knives, so he used the tomahawk when the victim kicked the door, saying “let me in”.

Herbert DCJ was satisfied that the use of a weapon, a tomahawk, was a circumstance of aggravation and that in this case the weapon was a “substantial weapon”; the level of recklessness was high; the victim was left with permanent disfigurement to the face and ongoing nerve issues; there was a degree of provocation; and that there was no planning or premeditation. The offence was found to be just within the midrange of objective seriousness.

Her Honour accepted that there was a “clear nexus” between the defendant’s mental condition and the commission of the offences and therefore his moral culpability and need for denunciation were both reduced. Her Honour also found that the defendant was an inappropriate vehicle for general deterrence. However, her Honour noted the need to take into consideration personal deterrence and the protection of the community, as this was the third time the defendant had inflicted grievous bodily harm on another person and because of his ongoing issues with impulse control. Her Honour further noted that the defendant was on conditional liberty at the time, which was an aggravating factor.

Her Honour made a finding of special circumstances on the basis that the defendant would benefit from an extended period of supervision, so that he has the opportunity to engage with service providers for his mental health and substance abuse.

Other Serious Offending

20. The defendant has an extensive criminal history involving serious historical violence offences. Fagan J summarised the defendant’s record of principal violent offences at [5] in his judgment Ryan No 1. With respect, I adopt his Honour’s summary:

(1) 13 June 1997, aged 16½ years: assault occasioning actual bodily harm. A community service order was made.

(2) 26 August 2001, aged 20½ years: common assault. The defendant received a suspended sentence.

(3) 15 August 2001, aged 20½ years: maliciously inflict grievous bodily harm – 12 months imprisonment with a non-parole period of 9 months.

(4) 15 February 2004, aged 23: assault occasioning actual bodily harm – 9 months imprisonment with a non-parole period of 6 months.

(5) 14 April 2007, aged 26: using a weapon to prevent lawful detention and aggravated assault with intent to take or drive a motor vehicle – 2 years with a non-parole period of 1 year and 6 months.

(6) 1 October 2009, aged 28½ years: stalk and intimidate – 2 months imprisonment.

(7) 13 October 2009, aged 28½ years: common assault – 2 months imprisonment.

(8) 21 June 2013, aged 32½ years: recklessly causing grievous bodily harm – 4 years imprisonment, with 2 years non-parole period.

(9) 8 March 2020: the index offence.

(10) 17 February 2022: using a weapon to resist lawful detention.

Reports received by appointed persons (s 9(3)(b))

Report of Dr Sathish Dayalan of 15 May 2023

21. Dr Dayalan’s report was based on a review of the materials filed in the case, together with an interview with the defendant on 1 May 2023. At the interview, the defendant presented as highly agitated during the assessment, had “minimal interest in discussing topics that he regarded as not relevant” and “struggled to stay on topic.”

22. Dr Dayalan diagnosed the defendant with borderline personality disorder, antisocial personality disorder, an acquired brain injury and alcohol, opiate, cannabis, stimulate and benzodiazepine use disorders.

23. Dr Dayalan noted that the findings of the assessments contained in the brief indicate the presence of cognitive impairment which, in the defendant’s case, is a manifestation of his acquired brain injury. Dr Dayalan reviewed an occupational therapy assessment report and noted that it is indicative of a significant impairment in the defendant’s level of functioning. As a result, the defendant will have difficulty learning new information (including any conditions imposed under an ESO).

24. Dr Dayalan assessed the defendant’s risk of violent offending using the Violence Risk Appraisal Guide – Revised (“VRAG-R”) actuarial risk assessment tool. The defendant was assessed to be in the high-risk category of violence risk.

25. Dr Dayalan identified the defendant’s main contributory factors for violent offending are substance use, poor regulation of emotions and behaviour, and unstable social circumstances and interactions with antisocial individuals. Dr Dayalan also noted that the defendant’s personality traits perpetuate his substance use disorder. Overall, Dr Dayalan considered that the defendant poses a risk of committing a further serious violent offence.

26. Dr Dayalan noted that the defendant’s history of aggressive behaviour appears to be largely impulsive and reactive to his situation which makes it challenging to predict.

27. In relation to managing the defendant’s risk, Dr Dayalan said:

Mr Ryan will require an intensive and structured approach to managing his risk when he transitions into the community. Access to opiate substitute treatment methadone, engagement with a drug and alcohol counsellor preferably from his cultural background and increased frequency of urine drug screening will assist with reducing his risk of relapse. Consistency in treatment providers such as psychologists and general practitioners could improve his prospects of continued engagement in treatment. I note that he has been granted additional funding through NDIS and he will require a lot of assistance with accommodation, management of finances, attendance for appointments and incorporation of healthy leisure and social activities.

28. Dr Dayalan considered that an ESO would be the most appropriate and effective means of managing the defendant’s dynamic risk factors relevant to him committing a serious violence offence.

29. Dr Dayalan opined that a period of 3 years would be appropriate to allow the defendant to make progress with treatment and rehabilitation and to provide for a graded reduction in the conditions imposed so that he is on minimal conditions when the order expires.

30. Dr Dayalan generally supported the conditions imposed by Fagan J on 3 March 2023. However, Dr Dayalan noted the defendant’s concern regarding his inability to remember all the conditions imposed and the potential for inadvertent breaches. Dr Dayalan suggested that input from a psychologist in providing the information in a format that is easier for the defendant to register, repetition of information and visual aids may assist the defendant. Dr Dayalan also reviewed the simplified conditions in the Amended Summons and noted that “[a]ny efforts to minimise the content in the document will improve [the defendant’s] registration of the conditions if an ESO was imposed” and therefore could assist with reducing the risk of breaches.

Report of Ms Lisa Zipparo of 15 May 2023

31. Ms Lisa Zipparo, a fellow of the College of Clinical Neuropsychologist, a member of the Australian Psychological Society and a member of the Australasian Society for Traumatic Stress Studies, prepared a report of her psychological examination of the defendant based on a review of the materials filed in the case, together with two interviews with the defendant.

32. During the first interview, the defendant attended with his NDIS support worker. He was highly emotionally dysregulated and fixated on obtaining a prescription which his GP had refused to provide. He was in an agitated state for two hours without being able to be calmed or diverted to other topics. As a result, the interview was terminated. The second interview occurred via AVL as the defendant had been reincarcerated. The defendant indicated that he was unable to participate due to not having received his methadone and therefore being unable to concentrate.

33. Ms Zipparo opined that the defendant meets the criteria for the following conditions:

1. Cluster B Personality Disorder – Borderline Personality Disorder;

2. Substance Abuse Disorder – severe for opioids and stimulants;

3. Major Neurocognitive Disorder due to traumatic brain injury with behavioural disturbance;

4. Post-Traumatic Stress Disorder.

34. Using the HCR-20 structured professional judgment risk assessment tool, Ms Zipparo identified various risk factors relevant to the defendant’s risk of future violence:

1. Historical risk factors: history of violence, antisocial behaviour, employment, substance use, major mental disorder, personality disorder and problems with supervision and treatment compliance.

2. Clinical risk factors: poor insight into his triggers for emotional dysregulation and his need for appropriate treatment, poor treatment compliance.

3. Risk Management factors: the defendant has some protective factors, including a supportive relationship with his adoptive parents, a trusting relationship with Uncle Chris and a $400,000 NDIS plan.

35. Overall, Ms Zipparo assessed the defendant as having a high risk for future violent offending, noting that he has “a number of significant risk factors which overlay each other to create a significant risk of future violence”. She considered that the defendant’s diagnoses will impact on the risk of him committing a serious violent offence because his symptoms feature emotional dysregulation, difficulties with impulse control, affective instability, and inappropriate intense anger and aggression.

36. Ms Zipparo opined that the defendant’s risks could not be managed in the community without an ESO. She went on to say:

Mr Ryan has an extensive history of recidivism and significant and complex risk factors, many of which do not have effective risk mitigating options available, other than ongoing supervision and support. Whether his risks can be managed in the community by an ESO depends largely on the quality and extent of supervision available in the community. Currently Mr Ryan has a significant NDIS package which offers considerable structure and support. However, NDIS workers are generally not trained to deal with highly dysregulated behaviour, and therefore cannot be relied upon to manage Mr Ryan’s behaviour when he is experiencing extreme emotional difficulties. It is suggested that in addition to ongoing mental health treatment, that crisis mental health interventions be available in the form of an established contact from the Aboriginal Mental Health Team who can be contacted by Mr Ryan’s support workers in the event of a mental health crisis.

37. Ms Zipparo expressed the view that an ESO of 3 years duration is a minimum but that 5 years is more appropriate given the defendant’s high risk of recidivism, the complexity of his presenting problems and his many long-standing difficulties. She generally supported the conditions imposed by Fagan J. Ms Zipparo said that he is unlikely to have good planning capabilities and will be unable to plan ahead in order to comply with various conditions. She opined that the defendant’s heightened impulsivity and mental inflexibility will pose the greatest challenge to his ability to comply with the conditions and that he will require significant assistance from his support workers to assist in complying with the various conditions.

Risk Assessment Report (s 9(3)(c))

38. Sarah Wright, Senior Psychologist, prepared a Risk Assessment Report (“RAR”) in relation to the defendant, dated 13 July 2022. Ms Wright interviewed the defendant via AVL for 3.5 hours over two occasions. A third interview was scheduled but the defendant refused to attend, which meant that information relating to current attitudes to risk factors and his release plans was not obtained.

39. Ms Wright noted that an AVL interview necessarily has some limitations, such as not being able to identify any issues with hygiene and body language not captured by the Webcam. Ms Wright noted that some agitation was present, with sometimes tangential speech and repetition. However, she considered that the defendant did not demonstrate perceptual disturbance or psychotic symptoms. He reported ongoing passive suicidal ideation but denied current plans to harm himself.

40. In relation to the defendant’s risk of general offending, an assessment carried out in February 2022 (just after his release to parole) using the LSI-R determined that the defendant’s risk/needs were within the medium/high risk category.

41. The defendant was assessed using the Violence Risk Appraisal Guide – Revised (VRAG). His score placed him in the highest of nine ‘bins’ which would classify him as high risk. 76% of violent offenders in this category re-offended within 5 years.

42. The defendant was also assessed using the Violence Risk Scale (“VRS”). The VRS is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, in particular, those who are being considered for release from institutions to the community after a period of treatment. The overall result of the VRS estimated the defendant’s risk of being convicted of further violent offences as being within the high-risk range. The defendant’s score was compared to a group of 918 federally sentenced Canadian inmates who had also been rated on the VRS. Of those offenders from this group who obtained a similar score to Mr Ryan, 44.5% were criminally convicted for a new violent offence within five years after release to the community, while 67.8% were criminally convicted for a new non-violent offence within five years after release.

43. The defendant’s criminogenic needs include substance abuse, his mental health issues, impulsivity when under the influence of substances, violence in relation to perceived threat or as a response to anger.

44. Given his substantial history of violent offending, including his escalation of violence in recent years, Ms Wright considered that it is possible that any future offending would reach the threshold of a “serious violence offence”.

45. Ms Wright notes that any potential future violence would almost certainly occur in the context of substance use and may occur in the context of medication non-compliance and a destabilisation in his mental health. Ms Wright identified non-compliance with medication, substance use, homelessness, associating with anti-social peers as warning signs of increased risk for the defendant.

Risk Management Report – s 9(3)(d)(1)

46. Mick Glover, Community Corrections Officer, prepared a Risk Management Report (“RMR”) dated 22 August 2022. The report suggests that previous drug and alcohol-related interventions in 2001-2007 appear to have had limited success at least in part due to the defendant’s “apparent inability to disentangle himself from a chaotic and disorganised lifestyle.”

47. During the interview, the defendant was seen as able to acknowledge the nexus between drug use and deteriorating mental health, however “he found it difficult to acknowledge that this had led to serious offending in the past and was also relevant to his current situation.”

48. Mr Glover proposed the following risk management strategies:

1. weekly contact with his Community Corrections Officer and unannounced home visits monthly;

2. attempting to use behavioural change therapy through various exercises (including managing high risk environments, managing cravings and managing impulsivity);

3. field visits and surveillance;

4. monitoring associations;

5. electronic monitoring, and;

6. future psychological risk management intervention.

49. Other engagement/supervision contemplated includes a curfew and schedules, accommodation requirements conditions, place and travel restrictions, finance/expenditure monitoring, employment monitoring, alcohol, drugs and weapons possession conditions, non-association conditions, internet/social media conditions to permit associations to be monitored, search and seizure relating to compliance with the ESO and associations, and conditions enabling directions to be given concerning engagement with mental health clinicians.

Other Section 9 Factors

50. The defendant has participated in a variety of interventions, treatments, and rehabilitation programs. Despite this, he has not maintained a prolonged period of abstinence: s 9(3)(e).

51. I agree with the State that the defendant requires carefully guided and intensive supervision to ensure he complies with the obligations of any ESO.

52. The defendant has a history of non-compliance. His has, in the past, breached parole conditions, breached bonds, failed to abstain from substance use and committed further offences: s 9(3)(f).

53. The defendant has serious mental health and substance abuse problems which increase the risk that he will commit further serious offences: s 9(3)(i).

CONDITIONS

Principles

54. The defendant referred to the decision of Wilde v State of New South Wales [2015] NSWCA 28 as to how the Court should assess the appropriateness of a disputed condition urged by the State in the context of the scope, purpose and objects of the Act, (see State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 (“Wilkinson”) at [44] (iv) and State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 (“Boney”) at [119]) and the more recent cases dealing with the appropriateness or otherwise of various standard conditions including search and seizure, employment, association and disclosure of criminal record).

55. In considering the imposition of conditions, I note the following principles from Wilkinson set out by Hoeben CJ at CL (as his Honour then was) at [44]:

[44] i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83].

ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68].

iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].

v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38].

vi) Conditions must not be unjustifiably onerous or punitive, “[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

vii) Conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131].

56. Despite it being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127] in which the principles for the imposition of conditions are applicable. Those principles are as follows:

[119] The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

[120] Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).

[121] The Court of Appeal further held at [53]-[54]:

[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.

[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

[112] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 (“Sturgeon”) at [99]:

[99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:

(1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];

(2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];

(3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];

(4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a highrisk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];

(5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];

(6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];

(7) a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].

[123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed “there must be some sort of identification of the unacceptable risk and how that condition goes to it”.

[124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.

[125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).

[126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):

[59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.

[Original emphasis.]

[127] With respect, I accept Button J’s statement of principles in Farringdon.

Conditions in Dispute

57. In the Further Amended Summons and at the hearing, the conditions in dispute were narrowed to the following conditions proposed by the State:

1. Condition 13: “The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained. In the event of a breach of this condition, there is discretion to direct the defendant to engage in further treatment related to the drug involved in the breach rather than the defendant to be subject to breach proceedings under s 12 of the Crimes (High Risk Offenders) Act 2006”; and

2. Condition 38: “Subject to the restrictions on information sharing set out in condition 37, the defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, the NSWPF ESO Investigation Team and any other police officers working with or assisting that team, and CSNSW.”

58. Condition 4 of the Further Amended Summons was not pressed by the State.

Condition 13

59. After judgment in this matter was reserved, the defendant sought to file further evidence and make further submissions as to this contested condition. For convenience, I will set out the parties’ original submissions followed by that which emerged in evidence and submissions after the reopening of the defendant’s case, in this respect.

The Defendant’s Original Submission

60. In its original form, in summary, the defendant made the following submissions as to condition 13:

1. There is evidence that the defendant is a drug addict. There is recent evidence as to the extent of the defendant’s drug addiction, which resulted in an overdose and admission to hospital. It is not known whether any charges arise from this. There is a real concern that the defendant will be criminally charged and arrested with breaches of the ESO each time he engages in drug use, even if he admits it to his DSO and even if there is a discretion to direct him to engage in treatment. Given the defendant’s struggle with drug addiction, the defendant seeks deletion of condition 13 and submits there is still a suitable legislative regime to disincentivise (and criminalise, where appropriate) drug use by the defendant.

2. While the condition notes a discretion, it does not direct the DSO to operate in favour of the discretion over breach, nor does it guarantee that the discretion will necessarily be exercised over the three-year period of the order. It could have no practical effect if the DSO so chooses.

3. The defendant has a continuing pattern of drug use and addiction. One instance of this has resulted in the defendant being criminally charged with breaching the ISO. Most recently, the defendant was admitted to hospital after an overdose, in the context of concerning and distressed comments made about self-harm and suicide (despite later saying that the overdose was accidental). The defendant remains in hospital in a detoxification program.

4. The Court should be cautious of the consequences of over-criminalisation. An ESO condition prohibiting use or possession of prohibited drugs, or abuse of drugs unlawfully obtained, runs the following risks:

1. Over-criminalisation: If the defendant is charged with a drug-related or medication related offence, he can be charged with breaching the ESO for the same conduct. The presence of multiple charges for the same conduct is more likely to result in arrest rather than charge by way of Court Attendance Notice, and likely to result in a more severe penalty.

2. Higher likelihood of being criminally charged: The evidentiary threshold to be criminally charged with a drug-related or medication-related offence is likely to be higher (i.e. the police would require some evidence of this occurring) than a criminal charge of breaching this condition (which may occur on the basis of the defendant’s own admission after the fact – noting that he is making regular admissions to drug use).

3. Consequent higher likelihood of rehabilitation and progress being thwarted: The higher likelihood of arrest and incarceration for minor drug-related matters undermines the efforts made to rehabilitate and achieve stability, including:

1. Interruption of treatment and rehabilitation programs/services;

2. Loss of housing (see, for example, most recent hospital admission resulting in loss of temporary accommodation);

3. Withdrawal of support services that do not support those who are in custody.

4. The Court may be satisfied that if the defendant’s drug or medication abuse is sufficiently serious to warrant criminal charge, that there is sufficient scope within legislation to do so.

5. Deletion of the condition in its current form reduces the risk of the defendant being repeatedly charged and placed in custody on the basis of admissions to minor drug use and is more likely to ensure the defendant maintains stable housing, treatment and therapeutic relationships.

6. In the alternative, the defendant asks the Court to consider an amendment to the following effect (the amendment being underlined):

The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained. In the event of a breach of this condition, there is discretion to direct the defendant to engage in further treatment related to the drug involved in the breach rather than the defendant to be subject to breach proceedings under s 12 of the Act.

Note: If it appears the defendant has failed to comply with this condition, in deciding what recommendation to make about the breach, the DSO must take into account whether the defendant disclosed any drug use to the DSO and/or whether the defendant took any steps in relation to AOD counselling/courses/programs/other medical intervention.

61. At the hearing, the defendant submitted that there are other conditions proposed that are fashioned to target the risk associated with substance use, including conditions 14 and 17. Those conditions concern the prohibition of possession or consumption of alcohol without prior approval of a DSO and the defendant’s mandatory attendance and participation in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO.

The State’s Original Submission

62. In its original form, the State submitted, in summary, the following, with regard to condition 13:

1. It is not merely the case that “the defendant is a drug addict.” His use of illicit drugs is one of the main contributory factors for his violent offending. In the judgment delivered following the preliminary hearing, Fagan J observed that “defendant has been a user of illicit drugs for at least two decades and has battled to control them. Their affects upon him undoubtedly contribute to his commission of violent offences.” Dr Dayalan stated that “Substance use has been an important contributory factor to Mr Ryan's violent offending. The disinhibiting effects of certain substances and increased physiological arousal associated with stimulants increase the risk of violent behaviour”.

2. Dr Dayalan also stated that improved “regulation of emotions and behaviour along with abstinence from substances will significantly reduce his risk of committing a serious violent offence”. Similarly, Ms Zipparo stated that “past offences seemed to be linked to his drug use and therefore it is possible that if Mr Ryan achieves abstinence from substance abuse, that this would have a significant impact on his likelihood of reoffending.”

3. Hence, the condition seeks to address one of the defendant’s central risk factors. Further, it is directed to achieving both objects of the Act (namely, ensuring the safety and protection of the community and encouraging the defendant to undertake rehabilitation): s 3 of the Act. Neither of the court-appointed experts suggested that the condition should not be made by the Court. Ms Zipparo stated that the condition would assist. Further, Fagan J imposed the condition following the preliminary hearing.

4. The non-inclusion of condition 13, in the face of the defendant’s risk profile, would be antithetical to the primary object in s 3(1) of the Act. Moreover, the absence of that condition might leave the defendant with the impression that the Court does not have any concerns with his drug use, with the likely consequence that he will be less incentivised to avoid illicit substances.

5. Whilst the defendant pointed to the availability of criminal offences for drug use under other State and Commonwealth legislation, the existence of such offence provisions is not a sufficient reason for not imposing condition 13, particularly in light of the strong link between the defendant’s drug use and his violent offending. There are numerous instances of the Court having imposed a condition similar to condition 13, despite the availability of criminal offences for drug use under other State and Commonwealth legislation: e.g. State of New South Wales v McGee (Final) [2023] NSWSC 546; State of NSW v RC (Final) [2023] NSWSC 26; State of NSW v Biber(No 2) (Final) [2021] NSWSC 104; State of New South Wales v Wynne (Final) [2021] NSWSC 488.

6. The defendant’s submissions as to condition 13 express a “real concern that the defendant will be criminally charged and arrested with breaches of the ESO each time he engages in drug use…even if there is a discretion to direct him to engage in treatment”. The concern is not grounded in the evidence. The evidence discloses that, since the ISO was imposed, there have been at least 4 instances where those supervising the defendant have exercised their discretion not to charge the defendant with a breach of the drug condition, despite the defendant admitting (or seemingly admitting) that he used illicit substances. That evidence suggests that those supervising the defendant are well aware of the need for a balanced approach and the importance of steering the defendant towards rehabilitation to address his substance abuse disorder.

7. Finally, given the evidence in the preceding paragraph it is not necessary to insert a note of the type sought by the defendant. Those supervising the defendant are, evidently, exercising their discretion in a manner that is reflected in that note.

Notice of Motion filed 30 August 2023 RE Condition 13

63. On 30 August 2023, the defendant filed a Notice of Motion seeking leave to re-open the defendant’s case in order to file further evidence and consequently made further submissions.

64. The defendant’s submissions in support of the Motion were, in summary, as follows:

1. The defendant sought leave for a short re-opening of the defendant’s case, by way of written evidence and submissions only. The entirety of the evidence sought to be adduced is contained in the affidavit of Hannah Bruce dated 30 August 2023 (“HB affidavit”). The re-opening is sought on the basis that it is in the interests of justice, based on the following principles from ASIC v Rich (2006) 235 ALR 587:

1. Evidence has arisen since the hearing of the matter that was not known at the time of the proceedings and fully culminated in the production of OIMS notes on 23 and 28 August 2023.

2. The evidence goes to, and is probative of, issues which were raised in this matter, being:

1. The defendant’s latest living and rehabilitation arrangements (which has evolved); and

2. Background relevant to the application and the extent of the defendant’s drug addiction.

3. The evidence will not result in an undue waste of time as they consist only of a brief affidavit and “OIMS” records and short written submissions.

4. The evidence will not result in prejudice to the State as most of the evidence arises from the OIMS notes which is a document produced by the State.

5. The evidence could not have been called in chief at the hearing as it arose after the hearing.

2. As to 2(b) above, the evidence is relevant in the following ways as it demonstrates the following facts which bear upon the discussion as to condition 13:

1. The defendant is back to temporary accommodation. He was discharged from Nepean to Rainbow Lodge. He was immediately arrested for a bail breach. He was transferred to St Vincent’s Hospital for a mental health assessment. He was released on 23 August 2023 and booked into a Penrith motel. On 25 August 2023 he was transferred to temporary accommodation in Penrith.

2. The defendant’s referral to rehabilitation facilities, The Buttery and Kedesh, were not accepted. He was accepted into Rainbow Lodge but they would not take him if he was prescribed Lyrica. He then suffered withdrawals from Lyrica and (possibly relatedly) took drugs. His admission to Rainbow Lodge was delayed while he was placed on lockdown, but he still tested positive for drugs upon admission. His admission was rejected. He was then arrested. When released, Corrective Services did not wait for his pick-up and told him that he was left to his own devices. Corrective Services denied having spoken to the DSO who had phoned in advance to arrange pick-up. He was released unsupervised and without knowing his accommodation. He told his DSO he needed to get a “fix”.

3. The new evidence shows that the defendant’s drug addiction is chronic and continuing. The defendant has, in effect, returned to where he started. The risk of the “perpetual cycle” continues. His vulnerability also continues. It is also noted that the continued incidents and drug use have not resulted in any violent offending.

65. On 31 August 2023, leave was granted to the defendant to re-open his case insofar as the re-opening was confined to issues relating to proposed condition 13. The application was not opposed by the Crown and the factors relied upon for the re-opening amply established that the application should be granted in the interests of justice.

66. That further evidence in substance, consisted of an affidavit affirmed by Hannah Bruce on 30 August 2023 (as mentioned) which contained evidence effectively summarised above and further written submissions for both the defendant and the plaintiff, in reply.

67. The defendant filed further submissions to the following effect:

1. The defendant is now in possession of evidence which demonstrates that the position at hearing is no longer the correct current position. On the basis of the new material, the correct current position is:

1. While he was at the Nepean Hospital detoxification unit, he was further rejected by two other rehabilitation facilities.

2. He was accepted into Rainbow Lodge but they would not take him if he was prescribed Lyrica.

3. He then suffered withdrawals from Lyrica and (possibly relatedly) took drugs.

4. His admission to Rainbow Lodge was delayed while he was placed on lockdown.

5. He was discharged from Nepean Hospital detoxification unit to Rainbow Lodge on 21 August 2023.

6. He still tested positive for drugs upon admission. His admission was rejected.

7. He was immediately arrested for a bail breach.

8. He was transferred to St Vincent’s Hospital for a mental health assessment.

9. As at that time (22 August 2023), the referral to the Involuntary Drug and Alcohol Treatment Program had still not been completed because the doctor was “under the impression that [the defendant] may not survive the overdose that he was in ICU for” (noting that by this stage he had already been discharged from the ICU some ten days earlier).

10. He was released on 23 August 2023 and booked into a Penrith motel.

11. When released, Corrective Services did not wait for his pick-up and told him that he was left to his own devices. Corrective Services denied having spoken to the DSO, who had phoned in advance to arrange pick-up. He was released unsupervised and without knowing his accommodation. After this, he told his DSO on the phone he needed to get a “fix”.

12. On 25 August 2023 he was transferred to temporary accommodation in Penrith.

68. I interpose to note that I accept this summary of the fresh evidence.

69. The defendant’s submissions in support of deleting condition 13 continued as follows:

1. The defendant continues to suffer serious drug addiction and is not in a rehabilitation facility, is further supported by these most recent developments.

2. The new evidence demonstrates that on 21 August 2023, the defendant was arrested after a positive drug test at Rainbow Lodge.

3. The arrest was made by police. The police would have had the discretion to charge the defendant with a breach of bail, or a breach of the interim supervision order, or both (in this case, the discretion was exercised to arrest for a breach of bail). The police also have a discretion as to whether or not they arrest at all for a breach of bail (s 77A of the Bail Act 2013 provides that the police may take other steps such as taking no action, issuing a warning, issuing an application notice or issuing a court attendance notice). Despite the availability of alternatives, the police exercised the discretion to arrest. In future, where the defendant is not on bail, but is subject to an ESO, the police maintain a discretion to charge and arrest the defendant for a breach of the ESO (as it is a criminal offence).

4. The fact that police exercised their discretion to arrest the defendant for breaching his bail as a result of his drug use, rather than exercising an alternative, lends support to the submission that when the defendant is no longer subject to bail conditions but is subject to the ESO, police may exercise the discretion to arrest him for a breach of any drug use condition on an ESO. The defendant submitted that the higher likelihood of arrest and incarceration undermines efforts for rehabilitation and stability. This was a feature of his most recent instance of incarceration, where he was released unsupervised (despite the best efforts of his DSO) and then put up at a motel. As submitted at the hearing, the defendant is concerned that condition 13 may mean that the defendant is “set up to fail” – doomed to a perpetual cycle of drug use, incarceration and temporary housing, thwarting the possibility of any meaningful rehabilitation.

70. In their written submissions, the Crown reply was as follows:

1. That the latest developments referred to by the defendant support, rather than detract from, the making of condition 13.

2. There can be no dispute that significant efforts have been made to get the defendant accepted into a rehabilitation facility however the defendant’s own behaviour has impeded these efforts.

3. There is no evidentiary basis for the submission that because the police exercised their discretion to arrest the defendant for breaching bail that they would do the same when the defendant is subject to the ESO.

Consideration

71. It is clear from the evidence before the Court that the defendant’s use of illicit drugs significantly contributes to his commission of violent offences and his risk profile generally. That conclusion is a fortiori given the further evidence called in the reopening of the hearing.

72. I agree, therefore, with the State, that the defendant’s use of substances is a risk issue that must be addressed by the conditions of an ESO. Whilst I accept the defendant’s contention that treatment and adjustment from drug use is an appropriate consideration because it is directed to rehabilitation, the primary objective under the Act is the protection of the community (s 3(1)).

73. It is regrettable that the defendant has not yet been placed in a rehabilitation facility, but I accept that the State has made strenuous effects to help the defendant attend such a facility and such effects have been thwarted, in many respects, by the defendant. There is no evidence that the State’s efforts to find a facility have diminished.

74. I agree with the submission of the State that the existence of other legislation which prohibits drug use has not prevented Courts from imposing similar conditions to this one in the past. Further, in my view, the ESO is required to address the particular violence risk factors associated with the applicant.

75. As aforementioned, since the ISO was imposed, there have been at least four instances where those supervising the defendant have exercised their discretion not to charge the defendant with a breach of the drug condition, despite the defendant admitting (or seemingly admitting) that he used illicit substances. The Crown is correct in its contention that those supervising the defendant are well aware of the need for a balanced approach and the importance of steering the defendant towards rehabilitation to address his substance abuse disorder.

76. This is reassuring evidence to combat any concerns of overcriminalisation and also indicates that those supervising the defendant are aware of the importance of prioritising his rehabilitation. The condition itself recognises the need for such a discretion.

77. I accept the submission of the State that the defendant’s submission regarding discretion is speculation. That is, I accept that challenge by the State to the submission that that if the defendant was no longer the subject of bail conditions but the subject of an ESO (incorporating condition 13), that police would exercise a discretion to arrest for a breach of the ESO for breach of the drug condition. The proposition that the police will simply revert to arrests for beaches of the ESO does not sit comfortably with the evidence that when given an opportunity to arrest for breach of bail or the ESO, police selected the former only.

71. In any event, I consider that the amended version of condition proposed by the defendant further reduces any concerns raised regarding overcriminalisation and the thwarting of rehabilitation progress for the defendant. The alternative condition provides some further urging upon the future personnel dealing with the defendant over the next three years, when exercising their discretion, to account for any disclosure he has made and any steps that he may have taken in seeking help.

72. The amended version of condition 13 proposed by the defendant, ensures, in my view, the appropriate balance of the objectives under s 3(1) of the Act, namely, exercise of protection of the community as well the rehabilitation of the defendant.

73. However, I accept the State’s suggestion that the word “should” replaces the word “must” in the note attached to the amended condition, so as not to ‘direct’ the DSO in an inappropriate way.

74. Accordingly, I have determined condition 13 should be in the following form:

The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained. In the event of a breach of this condition, there is discretion to direct the defendant to engage in further treatment related to the drug involved in the breach rather than the defendant to be subject to breach proceedings under s 12 of the Act.

Note: The Court recommends that if it appears the defendant has failed to comply with this condition, in deciding what recommendation to make about the breach, the DSO should take into account whether the defendant disclosed any drug use to the DSO and/or whether the defendant took any steps in relation to AOD counselling/courses/programs/other medical intervention.

Condition 38

The Defendant’s submissions

82. The defendant submitted the following with respect to condition 38:

1. The sharing of the defendant’s medical, psychological, and counselling disclosures with NSWPF disincentivises frank disclosures by the defendant to his healthcare practitioners, in circumstances where such frankness would encourage his rehabilitation and result in appropriate treatment from healthcare providers. Loss of patient confidentiality is counter-productive to the objects of the Act.

2. The defendant has expressed his concerns about his comfort levels in being frank with treating practitioners where that information will be shared with the DSO, the police and Corrective Services, to the effect that “I won’t want to get help. It’s just increasing my fear of all these people and that they will lock me up again”. The defendant expressed this directly to the Court at the preliminary hearing, with Fagan J stating at [15]:

The defendant has a strong objection to a condition that would permit healthcare providers, particularly psychologists and psychiatrists, to divulge information to Community Corrections or other law enforcement personnel, across such a wide scope. In the course of the hearing, the defendant expressed this objection to the Court directly. He explained that he is willing to receive psychiatric and/or psychological care and assistance, but he has a sensitivity about disclosure to third parties of the facts and circumstances of his background. He finds it acutely embarrassing to contemplate that others may know of the things that he tells healthcare professionals in confidence, concerning his upbringing and his psychiatric and social difficulties.

3. There are appropriate safeguards available generally in terms of the limitations of doctor-patient confidentiality, in circumstances where an exception arises where there is a serious and imminent threat to the life, health or safety of the individual or another person, or a serious threat to public health or public safety. A similar safeguard exists with respect to psychologists, where there is an immediate and specified risk of harm. These safeguards provide some comfort that any disclosure by the defendant involving a risk of harm to himself or others would be not be shrouded in confidentiality, but subject to sufficient reporting requirements without the need for a further condition waiving the defendant’s confidentiality.

4. In the present case, there are sufficient safeguards imposed upon medical and psychological practitioners to report imminent harm, so as to warrant the protection of the defendant’s privacy in declining to impose the condition in its current terms.

83. At the hearing, the defendant agreed that the terms of the condition could stop at “the DSO” and the State would have achieved its objectives in proposing the condition.

The State’s Submissions

84. The State, in written submissions, submitted that having regard to the balancing the concerns raised by the defendant, on the one hand, and the reality that there are members of the NSWPF who form part of or provide regular assistance to the ESO supervision team, on the other hand, a revised condition in this area would be appropriate as follows:

Subject to the restrictions on information sharing set out in condition 38, the defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, the NSWPF ESO Investigation Team and any other police officers working with or assisting that team, and CSNSW.

85. At the hearing, the State clarified that the information about the defendant’s health related issues referred to in the condition would only be shared with police who are members of the ESO team or working with them in the supervision of the defendant. That is, the State agreed with the defendant that the terms of the condition could stop at the words “the DSO”. Consideration

86. During the hearing, the State made clear that it is not the intention of condition 38 to make information available to the police generally, but only to police who are part of the supervision of the defendant. It was not disputed that the condition would have the same effect if it was limited to the acronym “DSO”.

Conclusion

87. Hence, to accommodate that acquiescence made during oral submissions, I grant condition 38 amended as follows:

Subject to the restrictions on information sharing set out in condition 37, the defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO.

DIRECTIONS

88. The State shall bring in Short Minutes of Order reflecting this judgment by 4pm, Tuesday 5 September 2023.

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Decision last updated: 05 September 2023