State of New South Wales v Sines

[2017] NSWSC 592

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Sines [2017] NSWSC 592

Hearing dates:

5 May 2017

Date of orders:

05 May 2017

Decision date:

16 May 2017

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006:

 

(a)   Two qualified psychiatrists and/or registered psychologists (or any combination of such persons) as agreed between the parties, to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

 

(b)   Direct the defendant to attend those examinations.

 

(2) Give the parties liberty to approach the list manager to fix a further hearing date.

 

(3) Give the parties liberty to approach Wilson J’s chambers by email to facilitate the fixing of a date for the reports to be furnished to the court and the parties.

 (4) Grant liberty to the parties to restore the matter to the list with 48 hours’ notice.

Catchwords:

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk offender – preliminary hearing

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Cornwall v. Attorney General for New South Wales [2007] NSWCA 374
Lynn v State of New South Wales [2016] NSWCA 57

Category:

Procedural and other rulings

Parties:

State of New South Wales (Plaintiff)
Peter James Sines (Defendant)

Representation:

Counsel:
Mr L Fernandez (Plaintiff)
Mr P Coady (Defendant)

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

File Number(s):

2017/111393

Publication restriction:

None

Judgment

1. In December 2010 the defendant, Peter James Sines, was convicted of a charge of Wounding with Intent to Cause Grievous Bodily Harm and sentenced to a term of 7 years imprisonment. A non-parole period of 5 years and 3 months was specified. The sentence will expire on 10 July 2017.

2. The State of NSW contends that the defendant represents an unacceptable risk to the community and, as such, should be made subject to a high risk violent offender extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). An amended summons was filed in Court with leave on 5 May 2017.

3. The matter came before me on 5 May 2017 at a preliminary stage of the proceedings, when the Court was asked to make orders to facilitate the examination of the defendant by appropriately qualified practitioners.

4. Without any concession as to the ultimate disposition of the matter, the defendant did not oppose the Court making the interim orders sought by the State, and the orders were made. The orders were as follows:

“1 Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006:

(a)   Two qualified psychiatrists and/or registered psychologists (or any combination of such persons) as agreed between the parties, to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b)   Direct the defendant to attend those examinations.

I give the parties liberty to approach the list manager to fix a further hearing date.

I give the parties liberty to approach Wilson J’s chambers by email to facilitate the fixing of a date for the reports to be furnished to the court and the parties.

I grant liberty to the parties to restore the matter to the list with 48 hours’ notice.”

5. These are my reasons for making those orders.

The Application

6. By its Amended Summons the State seeks the following orders:

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

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

b.   Directing the defendant to attend those examinations.

2.   An order:

a. pursuant to s. 10B of the Act, that the defendant be subject to an interim supervision order from 10 July 2017 for a period of 28 days ("the interim supervision order"); and

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

3.   An order:

a. pursuant to s. 5F and s. 9(l)(a) of the Act that the defendant be subject to a high risk violent offender extended supervision order ("the extended supervision order") for a period of five years from the date of the order; and

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

4.   An order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services New South Wales, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s).

5.   An order that access to the Court's file in respect of any document shall not be granted 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 be given an opportunity to be heard.”

7. Only prayer 1 was pressed at the preliminary hearing.

The Background to the Application

8. The defendant was born on 7 January 1971. He is now aged 46 years. His first appearance before the criminal courts came as a 13 year old charged with dishonesty offences. He continued to appear before the Children’s Court for larceny and break enter steal offences until, in July 1987, he was committed for trial from the Children’s Court to be dealt with at law before the District Court for an offence of assault and rob. He was ultimately acquitted of that charge.

9. Throughout his childhood years the defendant was regularly before courts in Kempsey and Taree, receiving his first custodial sentence in May 1986 as a 15 year old for an offence of break enter steal. The imposition on him of custodial terms became a regular event thereafter.

10. The defendant has multiple entries for malicious injury (an offence title which, in the nineteen-eighties probably referred to property damage), break enter steal, assault police, malicious damage, unlawful use of a conveyance, steal from person, assault occasioning actual bodily harm, and common assault, all as a child.

11. On attaining his majority the defendant continued in the commission of regular offences, appearing before the Local and District Courts for drink driving, illegal use of a conveyance, assault, malicious damage, improper use of a carriage service, resisting police, drug offences, assault occasioning actual bodily harm, driving whilst disqualified, stealing and attempting to steal motor vehicles, dangerous driving, hindering police, stealing from the person, and refusing a breath analysis. Where a community based sentence was imposed, the defendant was almost invariably called up for breaching the terms of the sentence.

12. In November 1996 the defendant was sentenced by the District Court sitting at Port Macquarie for an offence of robbery whilst armed with wounding and given a head sentence of 4 years. Whilst at liberty on parole for that offence the defendant was dealt with for common assault and damaging property, and soon after for common assault, larceny, and driving whilst disqualified.

13. Thereafter, the defendant has continued to flout the law, making regular appearances for various, and for the most part summary, offences before the Kempsey Local Court. He was imprisoned regularly, serving short gaol sentences for driving whilst disqualified, intimidation, assault, and contravening an apprehended domestic violence order. In 2007 the defendant was convicted for a 2005 aggravated assault with intent to rob with wounding, and imprisoned for 4 years and 6 months, with a non-parole period of 2 years 6 months specified. His release was made subject to supervision and participation in a residential rehabilitation programme, apparently directed to drug and alcohol problems. His 2008 offences of assault and contravention of an apprehended domestic violence order, and the index offence of wounding with intent to do grievous bodily harm in 2009, were all committed whilst subject to parole.

14. The latter offence is one contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) and carries 25 years imprisonment, with a standard non-parole period of 7 years specified. An offence of this nature is a “serious violence offence” for the purposes of s 5A(1)(a) of the Act. As the defendant remains in custody serving the sentence imposed upon him for this offence, he is a “detained violent offender” as provided by s 13C(2)(a)(iii) of the Act, with the timing of the State’s application meeting the requirements of s 13C(3).

15. The defendant was convicted of the index offence after a violent assault upon his then partner that took place less than two weeks after he was released to parole.

16. The defendant had been in a domestic relationship with the victim and the couple had a young son and daughter. Although his release to parole had been conditional that he have no contact with his former partner, the defendant immediately began residing with the victim. The arrangement quickly became fraught, and late on the night of 16 November 2009 the defendant attacked his partner with a shovel. The victim had been walking along behind the defendant holding the couple’s young daughter by the hand. The offender saw the shovel, picked it up, and swung it, hitting his partner in the back of the head. She screamed, and fell to the ground. The defendant then struck her a number of times to the head, mostly with the flat side of the shovel, although one blow was delivered with the edge of the blade, striking the victim to the top of the head. As he struck the victim the defendant was screaming at her about having “blokes” at the house whilst he had been in gaol.

17. The couple’s daughter witnessed the entire assault. She had been standing or sitting in between her mother’s legs crying, yelling “Stop hitting Mum. Mum, Mum”. Despite her injuries the victim managed to kick the defendant and, grabbing her daughter, she ran away.

18. The victim went to a nearby house for aid and an ambulance was called. She was taken to Kempsey Hospital and thence to Port Macquarie Base Hospital, and ultimately John Hunter Hospital in Newcastle, where she was treated for a 15 centimetre laceration to her head, together with an open, depressed skull fracture with underlying laceration and bleeding over the surface of the brain. The fracture was comminuted, with many fragments. It was regarded as a significant head injury and the victim faces lifelong possible complications, such as seizures.

19. On arrest the defendant denied the attack upon his partner, saying he didn’t want to be charged. He nominated another man as the likely attacker, but the nominated individual had been in another town at the relevant time.

20. In sentencing the defendant Judge McLoughlin referred to his long history of domestic violence towards the same victim. His Honour referred to the multiple blows struck to the victim, including blows struck when she was on the ground. He regarded the offence as very serious and at least in the middle of the range of gravity for such crimes. His Honour referred to the defendant’s lengthy criminal history, and his chronic alcoholism, as well as his general history of non-compliance with bonds and parole orders. The defendant’s disadvantaged background was noted, a background characterised by alcoholism and violence. Despite the defendant’s “appalling upbringing” the sentencing judge concluded that only a lengthy sentence of imprisonment was appropriate.

21. In declining to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge said that he could have no confidence that the defendant would abstain from alcohol or the repetitive commission of crime.

22. That would appear to have been a well-grounded observation, since the defendant does not seem to have successfully completed any community based sentence. Dr Richard Parker, who prepared a risk assessment report for these proceedings (Ex. KN-1.4) noted,

“Mr Sines has an extensive criminal history, beginning at 13 years of age. While his early crimes were offences of dishonesty, by 16 years of age, he began committing violent offences. Since that time, he has lived a generally antisocial lifestyle, where violence is a regular part of his life. Based on CSNSW records, I calculated he has spent 76% of his adult life in custody. The average time for him to return to custody is 121 days.”

The Statutory Framework to the Application

23. For an application under the Act to be made with respect to the defendant a number of “threshold” matters must be satisfied. As the history of his circumstances set out above demonstrates, the defendant is:

1. An adult who has been convicted of a serious violence offence, as defined by s 5A(3)(a) of the Act, being offences contrary to s 33 of the Crimes Act, and

2. At the time the State filed its application, the defendant was in custody serving a sentence: s 5J(2)(a)(i).

24. The defendant does not dispute that the State has complied with s 14 of the Act.

25. Section 15(4) provides for the Court to appoint two suitably qualified psychiatrists, two registered psychologists, or practitioners from each discipline, to provide reports to the Court.

26. Section 15(5) provides for the State’s application to be dismissed if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order.

27. Section 5E provides:

“(1)    An offender can be made the subject of a high risk violent offender

extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender.

(2)    An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.

(3)    The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence.”

28. The terms “high degree of probability” and “unacceptable risk” are not defined in the legislation. Their meaning must be determined in the context of the objects of the Act, set out 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.

(2)       Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.”

29. Both terms have been judicially considered.

30. In Cornwall v. Attorney General for New South Wales [2007] NSWCA 374 the meaning of “high degree of probability” in predecessor legislation was said to be (at [21]):

“[…] something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion “likely” as explained” in TSL.”

31. In Lynn v StateofNew South Wales [2016] NSWCA 57, at [50]-[51], the meaning of “unacceptable risk” was considered:

“[…] the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

What the court, therefore, must find to be unacceptable is the “risk” that the offender poses “of committing a serious violence offence if … not kept under supervision”. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.”

32. That evaluative task must have regard to those matters set out in s 17(4) (relevant to the making of a detention order) and s 9(3) (relevant to the making of a supervision order).

33. For the purposes of the preliminary proceedings the defendant concedes that the Court would be satisfied that the documentation filed by the State in support of its application, if proved, justifies a conclusion that the defendant poses an unacceptable risk of committing a serious violence offence if not made subject to supervision: ss 5E and 15(4) of the Act.

34. The defendant does not oppose the State’s application for the appointment of appropriate forensic experts pursuant to s 15(4) of the Act, and for an order directing him to attend upon each of the appointed experts for examination.

Risk Assessment Report – Dr Richard Parker

35. Dr Parker, senior psychologist with the Serious Offenders Assessment Unit, prepared a risk assessment report concerning the defendant on 2 December 2016 in anticipation of the current application. His report forms part of the evidence before the Court.

36. Dr Parker prepared his report by reference to the Corrections file and other documentation, as the defendant refused to be interviewed or co-operate with Dr Parker. The documents reviewed were wide ranging, addressing the defendant’s criminal, personal and psychological history.

37. Dr Parker noted the defendant’s dysfunctional childhood, being brought up as one of six children on an aboriginal mission by neglectful and abusive parents. Alcoholism and family violence were the norm. The defendant had limited schooling, leaving school in Year 8. He has no history of employment, being chronically unemployed.

38. After setting out the defendant’s criminal history, Dr Parker noted that the defendant has responded poorly to supervision. In custody the defendant has incurred 12 institutional offences since 2007, with a history of offending in prison; when subject to community based supervision the defendant has failed to take opportunities for a more acceptable lifestyle, reoffending quickly after release. That cycle is doubtless influenced by the defendant’s long history of substance abuse, with Dr Parker noting that the defendant commenced drinking alcohol at 13 years of age, with alcohol use quickly escalating. The majority of the defendant’s offences, including the index offence, have been committed when the defendant was affected by alcohol, drugs, or both.

39. A neuropsychological report concluded that the defendant has poor verbal and intellectual skills, possibly reflective of his limited education.

40. As to the risk posed by the defendant, Dr Parker had access to the results of actuarial risk assessments administered to the defendant when in custody, including, in May 2011, a Level of Service Inventory – Revised, or “LSI-R” test. The score on that test was one consistent with a medium / high risk of reoffending.

35. Another actuarial assessment conducted by Dr Parker in October 2016 returned a very high score for the defendant, placing him in the high risk category. Further testing utilising the Violence Risk Scale also found the defendant to be in the high risk range for further violent offending (Ex. KN-1.5).

36. A number of risk factors have been identified relevant to the defendant, such as criminal peers (encompassing family members, many of whom have criminal records), substance abuse, and criminal thinking, including the idea that violence is a normal and acceptable way of solving problems.

37. In custody the defendant has completed some courses aimed at addressing his offending behaviour, but has refused others, including the Violent Offenders Therapeutic Programme (“VOTP”). The defendant was offered and refused VOTP placement in December 2007, June 2008, April 2014, April 2015, August 2015, and October 2015. After notification of the prospect of action being taken against him under the High Risk Offenders Act, the defendant accepted a referral to VOTP in December 2015 and commenced in April 2016. He completed the first component of the programme. He was noted to participate well, but was uninterested in community based maintenance upon release, saying he had “done all this before” (Ex. KN-1.4, at [35]). Dr Parker was unable to draw any conclusions as to the genuineness of the defendant’s commitment to changing his lifestyle, given the nature of the impetus to his participation in VOTP, and the defendant’s refusal to undertake maintenance.

38. In 2015 the defendant completed the EQUIPS Foundation and EQUIPS Addiction, being programmes directed at offending and substance abuse.

39. Dr Parker concluded that the defendant’s violence is derived from a

“[…] combination of underlying aggressive cognitions and the disinhibiting effect of mind-altering substances – the former provides the motivation for violence, and the latter represses the inhibitions against actual violence.”

46. The defendant’s age may, however, somewhat reduce the risk posed by him.

47. The actuarial instruments used place the defendant at a high risk of violent recidivism and a medium / high risk of general recidivism. The speed with which the defendant has returned to the commission of crime in the past (generally within three months of release from custody) is a troubling feature.

48. Overall, Dr Parker concluded that the defendant would need an extended period of strict monitoring to implement and consolidate skills learned on those courses the defendant has undertaken. He thought the defendant would benefit from electronic monitoring, movement schedules, scrutiny of social contacts, employment and other activities, and supervision.

49. If released at the expiration of his sentence on 10 July 2017 without supervision, Dr Parker is of the view that the defendant will “gravitate to old acquaintances and resume his previous [criminal] lifestyle” (Ex. KN-1.4, at [53]).

Risk Management Report – Kevin Makar

50. A senior Community Corrections Officer within the Extended Supervision Order Team at the Department of Corrective Services, Mr Makar provided a risk management report on 3 February 2017. The report was prepared in anticipation of this hearing.

51. Mr Makar was able to interview the defendant prior to preparing his report, contact staff involved with administering the VOTP, and review relevant documentation.

52. Referring to the defendant’s criminal history, Mr Makar noted that the defendant had repeatedly breached good behaviour bonds and parole orders, resulting in repeated revocations. The defendant acknowledged having consumed illicit substances when at conditional liberty, and failing to attend “interventions” (Ex. KN-1.7, p.2).

53. During interview with Mr Makar, the defendant was polite, but said that he did not wish to be subject to supervision as he didn’t like taking or following orders. His expressed intention was to return to northern NSW upon release, and he was unwilling to enter a Community Offender Support Programme (“COSP”).

54. Mr Makar noted the risks to be managed as association with criminal peers, substance abuse, and criminal thinking. Management strategies included weekly interviews between a Community Corrections officer and the defendant, to maintain some supervision over suitability of accommodation. There are limitations to that strategy, the most significant of which is that, consistent with his history, the defendant will not comply and not maintain contact with Community Corrections or, if he did, that he would not be truthful or open.

55. Field visits, drug tests, and interviews with third parties can be conducted, although the defendant’s former criminal associations could prove a barrier to such strategies. Monitoring, including electronic monitoring, may be a useful management tool, inclusive of schedules and curfews. A referral to a psychologist for therapy and maintenance (inclusive of drug and alcohol rehabilitation) is noted to be important, although the defendant’s attendance may be problematic.

56. The principal limitation to any proposed risk management strategy is noted to be the defendant’s history of non-compliance, and his stated refusal to accept supervision.

57. The weekly interviews will be utilised in conjunction with scheduled and unscheduled monthly home visits and field visits, in order to monitor the defendant’s relationships and community reintegration.

Consideration

58. At this interim stage the State seeks orders for the appointment of relevant practitioners to examine the defendant and report to the Court, pending the finalisation of proceedings. The defendant concedes that the Court would be persuaded to make the interim orders and I have had regard to that concession as a relevant feature of the matter.

59. There can be no doubt, on the evidence if accepted, that the defendant poses a risk of committing further offences of serious violence when he is released to the community. The risk is a significant one.

60. Having considered all of the evidence relied upon by the State, and noting the defendant’s concession as to interim orders, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is not supervised. I have concluded that the matters alleged in the supporting documentation would, if proved, justify the making of the final orders sought by the State.

61. That being so, it was appropriate to make the orders sought at this stage of the proceedings, for the appointment of two qualified psychiatrists or psychologists to separately examine the defendant and report to the Court.

**********

Decision last updated: 16 May 2017