State of New South Wales v SLD (Final)

[2021] NSWSC 409

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

State of New South Wales v SLD (Final) [2021] NSWSC 409

Hearing dates:

18, 19 and 25 March 2021

Date of orders:

22 April 2021

Decision date:

22 April 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under Sections 17 and 18 Crimes (High Risk Offenders) Act 2006 (NSW) SLD is subject to a Continuing Detention Order for a period of 2 years commencing on the expiration of the Interim Detention Order on 22 April 2021

(2) Under Section 20 of the said Act, direct that a warrant issue for the committal of the said SLD to a correctional centre for the period specified in Order (1)

(3) Confirm Order (5) pronounced on 14 December 2020 relating to Court file access

Catchwords:

HIGH RISK OFFENDERS – final hearing – application for a continuing detention order – serious violent offender – whether Court satisfied to high degree of probability defendant poses unacceptable risk of committing another serious offence if not kept in detention – antisocial personality disorder – non-completion of Violent Offenders Treatment Program in custody – absence of suitable accommodation – Duration of orders so imposed – continuing detention order imposed

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5C, 6, 7, 11, 13, 15, 17, 18A, 25B

Crimes (Administration of Sentences) Act 1999 (NSW) ss 97, 198, 271(A)

Child Protection (Offender Registration) Act 2000 (NSW)

Child Protection (Offender’s Prohibition Orders) Act 2004 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174

Jones v the State of New South Wales [2020] NSWCA 202

Lynn v State of New South Wales (2016) 91 NSWLR 366; [2016] NSWCA 57

R v SLD [2002] NSWSC 758

State of New South Wales v Donovan [2015] NSWSC 1254

State of New South Wales v SLD (Preliminary) [2020] NSWSC 1803

Texts Cited:

N/A

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
SLD (Defendant)

Representation:

Counsel:
P. Aitken (Plaintiff)
E. Kerkyasharian with Ms L. Jardim (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2020/308796

Publication restriction:

S 15A Children (Criminal Proceedings Act) 1987 (NSW) and Pseudonym order made by Bellew J

Judgment

1. This is the final judgment determining the application brought by the State of New South Wales (“the State”) for a continuing detention order of two years duration against the defendant (“SLD”) under s 17 Crimes (High Risk Offenders) Act 2006 NSW. Unless otherwise specified, all references to legislation in this judgment are to this Act.

2. SLD has been under a series of interim detention orders (“IDO”) since the expiration of his term of imprisonment for murder on 28 January 2021. The current (third) IDO expires on 22 April 2021.

3. I conducted the preliminary hearing required by s 15(3) on 8 December 2020 after which I was satisfied that the matters alleged in the State’s supporting documentation as required by s 14(3) would justify the making of a continuing detention order (CDO) in accordance with the requirements of s 18A: State of New South Wales v SLD (Preliminary) [2020] NSWSC 1803 at [53]–[57]. I will from time to time in this judgment refer to my preliminary judgment. Although the conclusions there were expressed by reference to the relatively low s 18A standard of persuasion, as was then appropriate, as I will make clear, having had the opportunity to review the material as evidence led in the final hearing, I am satisfied of the matters of primary fact there referred to on the balance of probabilities. In these reasons, I will refer to some of these matters by reference to my earlier judgment.

Issues

4. The substantial, indeed sole, ultimate issue in the case is whether SLD should be subject to a CDO as claimed by the State rather than an extended supervision order (“ESO”) as SLD contends. I direct myself that under s 17, the Court may determine an application for a CDO by making an ESO: s 17(1)(a). Having said this, SLD challenges the threshold requirement established by s 5C(d). He argues that I could not be satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept in detention under a CDO. He accepts that I would be satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under an ESO: cf. s 5B(d). None of the other threshold requirements of s 5C are in issue.

5. To make matters clear, for the reasons summarised at paragraph [6] of the preliminary judgment, SLD accepts that the preconditions specified in sub-ss 5C(a) to (c) are satisfied in his case.

The index offending

6. Questions of identifying any risk posed by SLD, the nature of it, its magnitude, and how it may be managed, whether under a CDO or an ESO, depend upon a consideration of all of the circumstances of the case. These circumstances include the considerations listed in sub-ss 17(4)(a)–(k) even though those matters are not expressed to be mandatory for that purpose. I will refer to them as appropriate.

7. In my judgment, the nature of the index offending and SLD’s long-term response to it are important circumstances informing a decision about unacceptable risk. The views of the sentencing judge, Wood CJ at CL in R v SLD [2002] NSWSC 758 strike me as most prescient. They are also mandatory considerations in determining the appropriate disposition of the State’s case under s 17(1): s 17(4)(h1).

8. There is no gainsaying that SLD’s index offence of murdering a 3-year-old child he abducted from her bed when he was but 13 years and 10 months of age are truly shocking. I set out what I regarded as the matters relevant for present purposes, the circumstances of the offending and the views of Wood CJ at CL at preliminary judgment [12]–[18]. I propose to reproduce this passage from that judgment in full in the immediately succeeding paragraphs:

“Remarks on sentence

[12] In dealing with s 17(4) matters, I propose to commence with the views of the Sentencing Court at the time the sentence was imposed for murder: s 17(4)(h1). Sentence was passed on SLD on 30 August 2002 by Wood CJ at CL (R v SLD [2002] NSWSC 758). The offence occurred on 29 January 2001 and SLD entered a plea of guilty on 5 February 2002. The facts of the offending are shocking. SLD left the home of his adoptive parents in the early hours of a very hot late January morning and went to the home of the victim, a short distance away. He broke in by cutting the wire gauze on a screen door to unlock it. Because of the heat the external door had been left open to promote ventilation. He removed his 3-year-old victim from her bed, carried her a distance of about 300 metres where he removed her night clothing and murdered her with a single stab with a steak knife into her heart. He then disposed of her body by concealing it in long grass nearby. Investigating police later found a pool of blood and the steak knife on the driveway where the murder had been committed. Despite the removal of the child’s clothing there was no forensic evidence of sexual interference. Although this concern lingered over the proceedings, it could not be established beyond reasonable doubt. SLD’s adoptive parents became aware of his absence and also that a neighbour’s child was missing. Because of recent serious misconduct of SLD they made contact with the police. Wood CJ at CL was satisfied that far from co-operating with the police in their investigation, “SLD went out of his way to play with police” (R v SLD at [18]).

His Honour said (at [15]–[16]):

[15] Clearly, this was an exceedingly disturbing killing of a very young child with devastating consequences for the immediate family, as is apparent from the victim impact statements which I have carefully read. They demonstrate as clearly as could be imagined, the heartbreak and destructive impact of the loss of their child, in circumstances which exceed any parent's worst nightmare. ...

[16] The objective criminality of the young person, SLD, whether spontaneous or planned, was extremely high. An adult who abducted a young child from her bed in the middle of the night and who then deliberately killed her, in a senseless and savage way, particularly one who had a lengthy history of deviant and antisocial behaviour, would be at a very strong risk of being sentenced to the maximum term available, that is, imprisonment for the term of his natural life.

While the murder appeared to be “motiveless and inexplicable” it should be seen as “serious as one which was pre-planned and motivated, for example by revenge or greed, at least so far as it might be an indicator of future dangerousness” at [17].

[13] His Honour assessed the objective seriousness of the offence as “extremely high” and attended by a number of circumstances of serious aggravation. His Honour said at [18]:

…They include the fact that it involved a night time break and enter of the victim's home… that the victim was abducted while asleep in bed… that the killing involved the use of a knife… that the killing accompanied an intent to kill, that the victim was a defenceless 3 year old girl, that her murder was utterly callous and cold-blooded, and that following the killing SLD went out of his way to play with police. (Citations omitted.)

[14] His Honour, however, referred to SLD’s youth and immaturity “when he committed this terrible offence” (at [19]). He referred to the well-known principles informing the sentencing of children including the emphasis to be placed upon “the interest of rehabilitation”. His Honour said at [20]:

However, as the authorities also show, where the offence is one of grave criminality, as is the case here, the interests of punishment and personal deterrence do need to be taken into account, and they may provide a counterbalance to the special concern for rehabilitation.

[16] His Honour set out, when dealing with SLD’s personal circumstances, “that his background is almost as bleak and disturbing as his crime”: at [24]. It is not necessary to set these details out for present purposes. However, on appeal (R v SLD [2003] NSWCCA 310), Handley JA described them as “horrific” (at [5]). He became a ward of the State before being adopted by his foster parents who did the very best they could by him. But his disturbed background, it seems to me, had already taken its toll upon the development of his personality leading to severe and destructive misbehaviour at school and criminal misconduct. This previous misconduct included some matters suggesting the element of deviancy that Wood CJ at CL referred to in his sentencing judgment.

[17] The proceedings on sentence were conducted over 7 days and a great deal of both lay and expert evidence was taken for the purpose of informing the Court about SLD’s mental state. Perhaps somewhat chillingly to the lay person, there was no credible evidence that he suffered from a recognised mental or psychiatric disorder. Given his youth the psychiatrists and psychologists who gave evidence were unable to say that he met the criteria for the anti-social, or borderline, personality disorder with psychopathic features his disturbing conduct, including the index offence, suggested. They mostly forecast, however, that such was likely to have emerged by the time he attained his maturity. There was no suggestion of intellectual or cognitive disability, but appropriate testing and examination suggested that SLD’s IQ was in the low average range.

[18] Having comprehensively reviewed the lay and expert evidence Wood CJ at CL said, of particular relevance for present purposes, (at [126]-[130]):

[126] In my view, his history is such that, consistently with the expert opinions placed before the Court, he must be judged as posing a significant level of future dangerousness and to be at a substantial risk of reoffending in both violent and sexual ways. There are also very strong indications from his history of elevating aggression and disruptive behaviour, and from the killing itself, that he will develop a significant antisocial or borderline personality disorder, of some magnitude.

[127] Whether that can be addressed in the course of the Robinson programme, and precisely how SLD would behave once freed of the structured and controlled environment of the custodial system, are problematic in the extreme. There are some indications both of progress and of regression, but clearly SLD has to change to a very significant extent, if he is to overcome the effects of a tragic background, which was not of his making, and if he is to leave behind a pervasive history of seriously anti-social, aggressive, disruptive, destructive and homicidal behaviour.

[128] These findings do need to be taken into account in structuring a sentence that will reflect the interests of the community, in accordance with the principles noted in Veen v The Queen (No 2) (1988) 164 CLR 465. While preventative detention is impermissible, it is proper for the Court to take into account the risk which the community faces from an offender when he or she is sentenced.

…

[130] I do not consider that it displays much in the way of remorse, as distinct from an acceptance that a conviction was inevitable. The presence of remorse and insight remain highly questionable, since there has been very little which SLD has done, or said, to convey that he has any genuine feelings in this regard. On the other hand it is possible that he entertains some regret and shame, but is emotionally unable, by reason of his personality problems, to show that openly.”

9. This assessment remains as valid today as it was when Wood CJ at CL passed sentence on SLD in 2002.

Section 17(4)(h) – Criminal History

10. I will also set out my preliminary judgment at [19] – [22] which accord with my findings having reconsidered the evidence after the final hearing:

[19] The material discloses a number of incidents of anti-social or criminal behaviour preceding the index offence. Relevantly on one occasion he broke into a neighbour’s house, ransacked a daughter’s bedroom and urinated on the bed. On other occasions he was alleged to have stolen female underwear from the washing line. He caused $10,000 of damage by fire to the school he was attending. And only a week before the index offence he was charged on compelling evidence with abducting a female child and indecently assaulting her by touching her on her vagina. These charges were dismissed when he was sentenced for the index offence.

[20] Mr Kerkyasharian properly points out in his written submissions that while in juvenile detention he was assaulted on 16 separate occasions by other inmates, sometimes seriously. After his transfer to the correctional system he was assaulted on 3 further occasions between February 2007 and April 2015.

[21] For his own part, he has been convicted of a number of offences in custody: an assault occasioning actual bodily harm for which he was sentenced to a control order of 12 months duration in September 2003; assaulting a corrections officer and inflicting actual bodily harm for which he received a sentence of 27 months imprisonment, substantially accumulated upon the non-parole period imposed for the index offence, in August 2006; and an offence of sending a document to a CSNSW employee threatening death and grievous bodily harm to the employee and their family, for which he was sentenced to a fixed term of imprisonment of 27 months in February 2013, accumulated upon the expiration of the non-parole period for the offence of assaulting the corrections officer. The sentence expired on 27 January 2014. In December 2013 he was sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months for the offence of wounding a law enforcement officer. The non-parole period for that offence expired in September 2014, the additional term on 27 March 2016. I interpolate that because of the subsequent sentences it can be said that he has been in custody solely for the purpose of serving the balance of his term only since March 2016.

[22] All offending in custody raises serious questions about an offender’s progress towards rehabilitation. The facts of the wounding offence which admittedly was committed as long ago as 22 August 2011 are greatly concerning. SLD was being held in segregation. When a prison officer was placing his meal through the hatch in the cell door SLD cut his hand with a blade which, obviously, should not have been in his possession, requiring 22 stitches.

11. A number of things need to be said about the dismissed charges in relation to the abduction of the female child. First and most importantly, SLD denies this misconduct in his unsworn draft affidavit set out at Volume 2, Tab 17 of the Working Folder (“WF”) adopted as his evidence-in-chief under oath. Secondly, Mr Kerkyasharian of counsel, who appeared with Ms Jardim for SLD, objects to the facts being taken into account in any event as the charges were dismissed.

12. I do not accept SLD’s denial of involvement (181.30 – 183.48 T). The substance of the cross-examination by Mr Aitken who appeared for the State is drawn from a statement by Detective Senior Constable Steven Robinson dated 23 April 2021 (Affidavit of Briony O’Loughlin affirmed 27 October 2020, Exhibit BO-1, Vol. 1 Tab 12). DSC Robinson was one of the police officers who investigated the murder. His statement concerned a conversation with SLD about the earlier matter on the day he was arrested for the murder. SLD denied DSC Robinson’s account. However according to DSC Robinson during the conversation SLD admitted abducting and indecently assaulting the 7-year-old female victim. He admitted the occurrence and said, “It was a trial run” (Exhibit BO-1, page 218). He also admitted taking her from her bed at the Pacific Palms Resort, Forster (Exhibit BO-1, page 219). DSC Robinson’s statement contains, what to my mind, is a significant corroborating detail. The child victim had described how her assailant demonstrated how he could “[change] his face” (Exhibit BO-1, page 218). DSC Robinson said SLD had demonstrated this to him and described that demonstration. I prefer DSC’s Robinson’s comparatively contemporaneous account to SLD’s denial 20 years after the event. I appreciate that evidence of this admission may well not have been admissible in a prosecution of SLD for the Pacific Palms offence having regard to ss 85,86, 138 and 139 Evidence Act 1995 (NSW). Moreover, it appears to have been secured in the absence of a support person for the juvenile SLD. However, these are civil proceedings and I am of the view that DSC’s account is not only relevant but reliable.

13. The charges in relation to the Pacific Palms incident were dismissed without a contest hearing. No issue estoppel arises from the dismissal even had there been a contest. There is no suggestion of any issue estoppel arising.

14. I accept that as the charges have been dismissed they do not form part of SLD’s criminal history. But I accept Mr Aitkin’s submission that they are at least relevant for the purpose of s 7(4)(i) as “other information that is available as to the likelihood that the offender will commit a further serious offence”: Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27], [124] (Adamson J).

15. Although dealt with here, the matter relating to the assaults on SLD in custody are not strictly matters relevant under s 17(4), rather they are relevant to the question of the general or residual discretion reposed in the Court under s 17(1). To the extent to which they may be relevant as an aspect of SLD’s general right to be at liberty informing the exercise of the s 17(1) discretion, it must be recognised that they are not relevant at all to the unacceptable risk question: Lynn v State of New South Wales (2016) 91 NSWLR 366; [2016] NSWCA 57.

11. To these matters it should be added that I received a body of evidence that SLD had been assaulted again in the textile’s workshop at Lithgow Correctional Centre on 18 February 2021. From his affidavit sworn on 3 March 2021 the Governor of the Correctional Centre, Governor Michael Green, was called to the incident in its aftermath and observed SLD lying on the floor of a meal room at the rear of the textiles workshop. He was being attended to by medical staff. Apparently, a laceration to his scalp required a number of stitches. During his conversation with SLD, Governor Green attributed to SLD the following words:

I was assaulted. I knew this was coming. Now they have to release me.

The Governor was not cross-examined to suggest that his recall was other than accurate. It was put to him that, I assume given the nature of an injury to the head area, that SLD might not have been thinking “in the most straight manner (sic)”. Governor Green did not feel qualified to comment.

17. Ms Michelle Puzicha was a Senior Assistant Superintendent at the Correctional Centre. She had occasion to speak to SLD about the incident on 22 February 2021. She made a contemporaneous case note. It was her evidence that SLD said:

I made sure I was assaulted to get out of gaol as they are trying to keep me in gaol.

In cross-examination Ms Puzicha agreed that she had asked SLD, “Did you know you were going to get bashed?” It was put his response, as recorded by her, was “sarcastic” (50.48–51.7 T). She could not recall “whether he was being sarcastic or being factual”. She did not recall SLD saying, “of course, I didn’t know it was going to happen.” And she denied he said, “You don’t get your head cut open and stitches like that”.

18. SLD dealt with this issue at [94]–[99] of his unsworn affidavit. I infer that his account is that he had been inveigled into the lunch area by a fellow inmate on the pretext of assisting him make a call to legal aid. He then realised from the expression on the other inmate’s face “there was going to be a fight”. He was struck suddenly and felled with a single blow during a moment of inattention. Other blows and stomping followed. His injury required six stitches. At [102] he gave the account on which Ms Puzicha had been cross-examined. At [104] he said, “I know bashings don’t get me out of prison. I didn’t want to get bashed and I didn’t ask to get bashed. The guy who did this was stomping on my head. It was vicious and brutal and I didn’t ask for it at all.”

19. Under cross-examination, he denied saying anything to Ms Puzicha to the effect that he incited the assault as a means of getting out of gaol, sarcastically or otherwise (187.17 - 40 T), which is slightly inconsistent with his evidence. He could not recall the conversation with Governor Green (187.40T). He denied goading the assailant into an attack (188.7T). He also agreed he would “at times… lie if it [suited]” him (188.25T).

20. As I have started to make clear, I am not persuaded that SLD’s evidence can be accepted at face value. Even on this topic his oral evidence in cross-examination was inconsistent with the relevant paragraphs of his unsworn affidavit adopted as his evidence in chief, which formed the basis of the cross-examination of the State’s witnesses concerning this incident. However, I am not persuaded on the balance of probabilities that he deliberately incited an assault on his person as some misguided means of attracting sympathy for his plight tending in favour of an ESO instead of a CDO. Even were I of a different view, as I have said, it is not a matter which has any bearing upon the central question of unacceptable risk. Furthermore, I would regard it as barely relevant to the s 17(1) discretion as a factor either for or against the making of a particular order. Assaults in custody and the harshness of a person’s particular circumstances of incarceration may be relevant to the discretion.

21. Finally, I would wish to amplify what I have recorded concerning the offence of 24 April 2003 for which he received a control order of 12 months duration. The facts in respect of that matter are set out in Exhibit B0-1, Tab 13. The assault was upon a nurse at the Reiby Juvenile Detention Centre. While receiving treatment from a nurse he lunged at her and applied a headlock and caused her to collide with a filing cabinet by which she bruised her back. Although the facts were disputed, it was alleged that he produced a gaol-fashioned shiv during the assault. When interviewed by police he admitted grabbing the victim but said he was unable to recall further details because he “blacked out”. He denied possession of the shiv. The shiv is not mentioned in the victim’s statement. In the circumstances, I am unable to make any positive finding against SLD in relation to the use of that instrument. The elements of the offence with which he was charged for which he was punished did not necessarily include the use of a weapon.

22. There are three other matters of primary fact relevant to the unacceptable risk question and also for the purpose of s 17(4)(i). They are: the matters asserted in the report made on 25 July 2017 by the Reverend Mark Muss, a prison chaplain; the list of female names with ratings of attractiveness seized from SLD’s cell during a search on 17 May 2020; and the pornographic material seized during a cell search on 13 December 2020.

23. The Rev Muss swore an affidavit on 24 March 2021 which was read over SLD’s objection. The Rev Muss is an Anglican Chaplain to the Lithgow Correctional Centre and has been since March 2013. In that capacity he has provided pastoral care to SLD. Part of that care involved counselling SLD in a program referred to as the Positive Lifestyle Program. Following a discussion on 25 July 2017, the Rev Muss thought it necessary to report its content to the authorities at Lithgow Correctional Centre. Rev Muss’ note is Annexure A to his affidavit.

24. During the discussion, SLD informed Rev Muss that he continues to fantasise about killing people and if things don’t go well for him on release he will resort to killing. SLD spoke about killing as many as 100 people to publicise what he regarded as the injustice of his incarceration. He said he would go overseas and kill sex slave-traders. If he remains incarcerated for life he will resort to rape of a female officer and killing other correctional officers. He told Rev Muss that he would prefer not to have these thoughts, but that violence became his survival strategy while he was in custody. He had to learn to fight so others would not attack him. SLD said he was scared to report the content of his disclosure to a psychologist as he feared it would hinder his chances of release. The Rev Muss informed SLD that he was bound to report the matter. SLD said, if asked, he would deny the conversation.

25. In evidence SLD said he had no recollection of saying the matters represented in Rev Muss’s note. He had no recollection of the particular meeting with the Rev Muss. He denied he had fantasies about killing people in late 2017 and certainly not “killing as many as 100 people” (203.15 – 203.26 T). SLD said if he had said those things the explanation “would be stress, anger and frustration, depression [for] the Parole Board always refusing me parole” (203.32 T).

26. In cross-examination SLD accepted that he had adopted violence as a survival strategy in detention, particularly juvenile detention (204.37 – 205.22 T). When asked whether he “wouldn’t be surprised that [he] had said similar things to” Rev Muss, he responded (at 205.25 – 205.31 T):

“It’s difficult for me to answer that, like, I don’t want to seem like I am lying, but is it something that I might have said? Of course, yes, but is it something that I did say, I can’t remember. So I don’t know which question, which answer you want me to give. Like, I don’t understand. Is it something I could have said, yes. Is it something I did say, I can’t remember.”

However, he denied that he ever said to the Rev Muss that he continued to fantasise about killing people (206.33 T).

27. He denied he had said to the Rev Muss he would rape anyone (208.5 T). It was put to him that his assertion in paragraph [44] of the unsworn affidavit that his conviction for writing the threatening letter to a corrections officer on 2 June 2011 was the only time he had threatened to rape anyone in custody was wrong having regard to the Rev Muss’ letter (207.32 – 208.10 T).

28. It may be possible that SLD has forgotten the content of the specific discussion with Rev Muss, but there is no question in my mind that it occurred as recounted by the Rev Muss. Rev Muss’s contemporaneous note comfortably satisfies me of the accuracy of his account.

29. In the cell search on 17 May 2020 a number of diary entries were seized containing the names, in some cases the age, and the rating of women and girls. In his unsworn affidavit (at [70]) SLD acknowledged that he had devised a system for rating the attractiveness of the females on a scale of 1 to 10, 10 being the highest. He said the women were people he had seen on the television. When he is released, he would search for them on social media and if they were single, he would try to date them. He said that he had now been informed that this expectation was not realistic which he accepted.

30. It is of particular concern that some of the females named are underage girls.

31. SLD was cross-examined about this topic (commencing at 188.41 T). He asserted that all of the persons named were “adults” (189.47 T). It was put to him that the rating system was “based on… sexual attractiveness” (190.18 T). He agreed adding, “as adults”. He denied a sexual interest in children but said he had recorded the names and ratings of some underage girls so that he could “look them up when they’re 18 years of age and they are attractive” (192.23 T). He agreed that he had named and rated the attractiveness of an 11-year-old girl (192.45 – 193.2 T). He had also recorded details on a rating for an 8-year-old who he hoped to meet “in 10 years’ time” (193.19 T). He may have rated boys because he is “bisexual” (193.24 T), but he said “children aren’t attractive” (195.27 T). He was asked the following (at 195.34 T).

Q. Are you saying that [children are unattractive], because if you were to admit that you had rated a child as attractive that that may suggest that you have a sexual interest in children?

A. No. Because I don't even believe 16 or 17 are appropriate. I think that the law should be changed too. Honestly, to go at 16 and 17, why should they be able to have sex?

32. It was pointed out to him that he had written the names of certain primary schools on his list which he accepted. But he denied it was for the purpose of contacting children. He said it could be someone working there or a mother (196.5 – 197.1 T).

33. I did not find it credible that he recorded the names of schools and young girls with a rating because he may have been interested in a worker or a mother. It seems far-fetched that he recorded the names of young girls with a view to contacting them after they had attained the age of 18 years. This material has some relevance to the assessment of SLD’s risk of re-offending.

34. The evidence about the pornographic material seized during the cell search of 13 December 2020 was given by Ms Catherine Turner, a Senior Correctional officer at Lithgow Correctional Centre. In her affidavit of 16 February 2021, she said that she had conducted a random search during which she located a book inside of which were hidden pages that had been ripped out of other books as well as pictures of naked women. She said (affidavit at [4]):

When I looked at the pages that had been torn out of the books, in my opinion, some of them contained very graphic and derogatory stories involving women and forced sexual intercourse.

She sought to counsel SLD about the matter. She said to SLD, “is this how you think of women?” And he replied, “Yes for sex”. She told him that if he treated women “like that you will be back in custody very soon”. The pornographic material is Annexure A to Ms Turner’s affidavit and I have viewed it for myself. In cross-examination, Ms Turner agreed that SLD had said “that he had had” the extracts for years (165.50 T). She denied that SLD said words to the effect that “he didn’t want to look at real porn when he’s released because of concerns about the women consenting” (166.40 – 166.44 T).

35. In his unsworn affidavit (at [74]), SLD said he’d had the material “for years”. The implication was that the material could have been located on any number of previous cell searches. He said he did not remember reading “any rape scenes” and that Ms Turner had not mentioned rape as opposed to sex scenes. He asserted that he had said that he looked at the material because he had no experience of sex in real life.

36. SLD was cross-examined about this material at (211.30 – 212.25 T). The following exchanges are relevant:

Q. So are you saying that you found when you read this material, that you found it appropriate and it didn't raise any concerns with you that it was suggestive of rape or non‑consensual forced sex with women?

A. Well it's not real, is it, it's all fiction.

Q. It's not the question I am asking you. I am saying, are you saying, you didn't find it to be descriptions of non‑consensual or forced sex with women?

A. This answer is going to sound so bad; I do see it as sex. Is that an answer, or do you want to rephrase?

Q. All right, you see it as descriptions of things which relate to intercourse between two people or more than two people on one occasion?

A. Yep.

Q. But nothing more, is that what you mean?

A. It's not exactly what I mean. It's, obviously if I were to do it outside it would be rape, 100 percent, for most of it, but just because I am looking at it doesn't mean I think that way.

37. From my inspection, the material is quite graphic, much of it involving violent rape, including gang rape. Making every allowance for the consideration that SLD has been in custody since he was a young adolescent and has no experience of ordinary life, his retention of, and interest in, this material is concerning. It is more concerning that he simply saw it “as sex” (212.9 T).

Section 17(4)(c) psychiatric and psychological assessments

38. I interpolate that the court-appointed experts under s 15(4) referred to in s 17(4)(b) are Dr Richard Furst, Consultant Forensic Psychiatrist, and Dr Susan Pulman, Registered Psychologist. I will deal with their reports below. At this stage however it is sufficient to record that the opinion of each of them is that SLD poses an unacceptable risk of committing another serious offence if not kept under a CDO rather than an ESO. Dr Furst suggests a period of five, and Dr Pulman two, years is appropriate.

39. I summarised the matters alleged in the psychiatric and psychological reports provided for the purpose of s 17(4)(c) at [23]–[33] of the preliminary judgment. I will not set that material out in full again but provide the following summary. There is no real issue about the content of these previous reports and except where I may otherwise specify, I find the opinions of the experts established on the balance of probabilities. There is a difference of opinion about whether SLD’s condition is susceptible to treatment.

40. SLD’s most unfortunate background, referred to by Wood CJ at CL and Handley JA, is documented in three pre-offending psychological assessments in evidence as part of Exhibit BO-1. At the age of 3 years and 6 months developmental delay was diagnosed and intellectual disability excluded. At the age of nearly 6, Peter Champion, Psychologist, referred to a chaotic cognitive style and a tendency to “extreme exaggeration and fabrication”. Following the incident at age 11, when SLD had set fire to his school, the psychologist recorded inappropriate sexual comments and angry outbursts. A diagnosis of “global delay” with an IQ of 74 was made.

41. A large body of psychiatric, psychological and like assessments were carried out in relation to the proceedings on sentence for the index offending. Dr Brent Walker, Psychiatrist, referred to SLD as “strikingly lacking in emotion when describing the killing”, he exhibited “gratuitous self-aggrandisement when talking about the death”. I interpolate, this is when SLD is only 14. Test results by Karen Clark were consistent with “mildly elevated” psycho-pathology findings.

42. Peter Champion examined him again after the index offending and recorded “a tendency to be grandiose and confused” with disorganised thinking.

43. Professor David Greenburg regarded SLD as an unreliable historian, subject to fabrication, guardedness, manipulation and intimidation, the latter when challenged. He formed the impression that SLD lacked genuine remorse for his offending. He proffered the probable diagnosis of “Severe Personality Disorder with antisocial and psychopathic features”. The professor said “probable” because the diagnosis may not be maintained until the subject has attained the age of 18 years. He suspected an underlying paraphilic disorder.

44. I will set out [27] of the preliminary judgment summarising the views of Gillian Tulloh, Psychologist, as follows:

[27] Perhaps insightfully Gillian Tulloh, Psychologist, who prepared a report for the Serious Offenders Review Committee (SORC) on 16 May 2007, based on the results from a battery of tests she administered observed that “psychopathic personality features are very strong” (Exhibit BO-1; Tab 64). She also said that high scores on the Psychopathy Check List – Revised (PCL – R) (p.745):

…are considered predictive of further offending and he should be considered a high risk offender. Individuals with high scores on this instrument do not tend to respond well to therapeutic interventions because they display no empathy, remorse, are manipulative and generally have little insight into their behaviour (sic). Because of his high score on the PCL – SV, [SLD] would not be a good candidate for the Violent Offenders Therapeutic Program, and would probably be excluded from it on the basis of this assessment.

Her result placed SLD in the high risk category for sexual offending and she was of the opinion, “there is sufficient evidence to indicate that there was some level of sexual deviancy involved in [SLD’s] offence” (p.745). His youth at the time meant that the results then must be evaluated cautiously.

45. Others, however, including Phillip Snoyman, and Daniel Matsuo, recommended the Violent Offenders Therapeutic Program and CUBIT respectively.

46. Perhaps a little out of step with the general run of opinion, Natasha Ryan, Psychologist, suggested Schizotypal Personality Disorder and Paranoid Personality Disorder in September 2011. While maintaining his concurrence with the majority of psychiatric opinion, that SLD suffers a Severe Personality Disorder, Dr Olav Nielssen received a history of symptoms suggestive of psychotic illness.

47. I am very impressed by the report of Dr Gordon Elliot, Consultant Psychiatrist, dated 23 October 2020, which is Annexure B to the affidavit of Briony O’Loughlin, solicitor, affirmed on 5 November 2020. I will quote my summary from [30]-[33] of the preliminary judgment. I accept the opinions of Dr Elliot have been established on the balance of balance of probabilities:

The examination was conducted by audio visual link and the available time was, because of the current demands on CSNSW’s AVL system, somewhat limited. Dr Elliott had access to the “very full file”. Dr Elliott said that there is no indication that SLD suffers from a major mental illness such as a psychotic illness or mood disorder. He diagnosed a Severe Personality Disorder of a Cluster B nature. This was formerly referred to as Anti-Social or Borderline Personality Disorder. A chief feature was a “cluster of narcissistic traits” (p.8). Dr Elliot said at p.8:

SLD exhibited grandiose fantasies, a lack of empathy for others, prominent features of arrogance and entitlement and emotional detachment from others. He gave self-serving and exculpatory explanations for his offences in custody… He made no real acknowledgment of his index offence or any attempt to provide a motive.

He said he was unable to explain his offending and demonstrated no remorse. His “terrible memory of the victim’s mother in court… affects him more than the offence itself” (p.7).

He too commented upon SLD’s sexually inappropriate presentation. He also considered, having reviewed the documentation, that SLD is at the borderline of the range of intellectual functioning.

Dr Elliott was of the view that “there are few if any evidence based treatments for his personality pathology” (p.9). He recommended a very stringent regime of close supervision including monitoring, strict reporting obligations, abstinence requirements and drug and alcohol screening. He also recommended “continued psychological input encouraging behavioural change” (p.9).

It is notable that although SLD was referred for assessment by CSNSW, Dr Elliott was not provided with a letter of instruction identifying the issues he was being asked to address. He has recommended close supervision in the community but was not asked his opinion about any need for a period of continuing detention.

48. SLD has been treated in custody by Dr Richard Parker, a Senior Specialist Psychologist employed by Corrective Services NSW (“CSNSW”) and attached to the High Risk Offenders Team. In his affidavit sworn on 17 March 2021, Dr Parker states that he has been treating SLD since 26 June 2020 by AVL on a fortnightly basis. The treatment involves an approach referred to as Cognitive Self Change, a four-stage process to assist SLD to be compliant with the conditions of an ESO if released to supervision. There are four stages:

1. Learning to pay attention to your thinking and objectively report this;

2. Learning to understand how your thinking leads to rule breaking/crime;

3. Developing alternative thinking, which allows to follow the law and feel good about that; and

4. Practise using the alternative thinking until you can use it when it counts.

SLD is currently between the first and second stages. Dr Parker is of the view that SLD has reached the stage where to make further progress he needs to be in the community to deal with real life challenges that he will meet, bearing in mind he has been in custody since he was 13 years and 10 months old and he has unrealistic ideas of what the community is like and what supervision is like. (Affidavit at [10]).

49. In supplementary questions, Dr Parker referred to “a particular theory in criminology called the deep freeze where basically putting offenders in prison is equivalent to storing food in the freezer” (214.35 T). According to this theory, given his age when taken into custody, SLD will be more like a teenager than an adult in his thinking. Viewed from this standpoint, the inclusion on his rated list of females who are underage girls may be explicable. Dr Parker said, “while it seems very unusual, it could be understood through that lens” (215.4 T). While pointing out that SLD’s entire development is “atypical” (215.38 T), he accepted that a 13-year-old boy “would normally be looking at girls around his age or adult women” (216.10 – 216.14 T). Dr Parker considered that SLD in some respects fits the characteristics of a juvenile sex offender, but there is very little to help forecast the risk of re-offending presented by juvenile sex offenders (216.40 - 216.49 T).

50. Dr Parker’s opinion was that SLD’s behaviour in custody “in recent years has been relatively compliant” (218.15 T). He is of the view that SLD is unlikely to change much in the coming years if he remains in custody (218.32 T).

51. Dr Parker said it would be useful if SLD completed the VOTP although it is hard to quantify the benefit he may derive (219.10 T). When asked about the Rev Muss material, he said “in criminology and generally, there is a real gulf between what people think about and say what they will do and then what they actually do” (220.5 T). He added however, “that psychopaths don’t need courage to act”. He did not regard SLD as a psychopath (220.21 T).

52. Dr Parker said that if he remained in custody on a CDO for the purpose of completing the VOTP (see below) it may not be necessary for him start again. An assessment would be made of how much gain he had made from his previous participation. “Some people have gone back in and only had to do a relatively small amount” (220.38 T).

53. In re-examination, Dr Parker said that the program he was following with SLD “is a much more individualised process” than the VOTP. Dr Parker had his doubts about whether SLD would complete the VOTP. A CDO would create “impetus over and above the normal pressures in custody” for SLD to complete it. But it was worth considering that he did not do so after he failed to obtain parole when eligible (222.20 T).

Section 17(4)(d) – Risk assessment report

54. I dealt with the Risk Assessment Reports of Mr Samuel Ardasinski, a Registered Psychologist employed in a senior capacity with Corrective Services New South Wales in my Preliminary Judgment (at [34]–[37]). I propose to set out my summary of his evidence in full.

[34] “I have referred in passing to the Risk Assessment Reports of Mr Ardasinski of 5 June 2020 and 16 November 2020. In accordance with CSNSW’s usual practise Mr Ardasinski has produced a very comprehensive report reviewing much of the material on SLD’s file as well as carrying out risk assessment by application of specified risk assessment tools. He records from his file review that previous assessments during SLD’s time in custody rated SLD’s risk for general and violent offending as falling into the Medium-High risk category. Actuarial risk assessment focusing on the risk of violence, estimated SLD’s risk of being convicted of a further violent offence as High.

[35] Mr Ardasinski administered for himself the Violence Risk Appraisal Guide – Revised (VRAG – R) and the Historical–Clinical–Risk 20: Version 3 (HCR – 20). Mr Ardasinski acknowledged that these professional tools have limitations. However, on Mr Ardasinski’s analysis using the VRAG – R, SLD was classified as a High Risk “compared to other violent offenders” (Exhibit BO-1; Tab 1 at p.25). 45 percent of violent offenders in this category reoffended violently within 5 years, and 69 percent within 12 years. HCR – 20 is described by Mr Ardasinski as a structured professional judgment tool involving a check list of risk factors “organised around past (historical), present (clinical) and future (risk management) risk factors (p.26). It “does not provide an algorithmic equation of risk probability” (p.26). The professional is required to reach a judgment based on all available information. The results suggested that SLD “will require a High level of effort to prevent further violence” (p.27). It is of considerable concern to me that, in this context, SLD asserted, unlike the history received by Dr Elliott, that he could not remember the murder. Much as I have difficulty accepting this, on professional grounds Mr Ardasinski considered in the light of his institutionalisation, “It is not inconceivable that he longer possesses a clear memory of the event” (p.28).

[36] While SLD has no convictions for sexual offences, given his presentation, Mr Ardasinski assessed his characteristics by reference to an actuarial measure of dynamic risk for sexual offending, the STABLE–2007 and expressed the view that SLD shares several characteristics with sexual recidivists. Given that SLD has been incarcerated since fairly early in his adolescence, Mr Ardasinski did not consider it appropriate to express an opinion that he posed a specific risk of sexual offending. Mr Ardasinski said that SLD’s risk for violent offending is most likely to materialise in the form of reactive violence and retaliation for some “perceived slight” and would involve use of a weapon, if one was available (p.29).

Mr Ardasinki made recommendations for the conditions under which an ESO could be imposed. He considered it highly undesirable that SLD be released to the community on unconditional liberty after 20 continuous years in custodial settings since the age of 13. He acknowledged continued detention after the expiration of his sentence may be “punitive”. In his supplementary report, after reviewing additional information he adhered to his view that SLD fell into the High Risk category for violent re-offending relative to other men who have offended violently. It is conceivable that violence perpetrated could cross the “serious violence offence” threshold. He may pose a real threat of sexual offending given his preoccupation with, and disinhibition concerning, sexuality.”

55. Mr Ardasinski was called to give oral evidence on 18 March 2021. In examination in chief he said that if the Pacific Palms incident was left out of his calculations according to the VRAG – R assessment, the overall risk rating would remain the same, although SLD’s score would be reduced from 16 to 12. Scores from 12 to 17 are covered by the high rating he made. Mr Ardasinski was of the view that SLD met the criteria for both a Psychopathic Personality Disorder and Anti-Social Personality Disorder. He added [13.25 - 13.40 T]:

…the Factor one traits that are described in the diagnosis of psychopathy relating to callousness, a lack of remorse, or lack of empathy, some of those are ‑ potentially have greater consequences for individuals that are diagnosed with a psychopathic personality disorder because they don't have as much of a connection to society and it is sort of seen that they… don’t feel emotions the same way that you and I would feel emotions. Whereas an antisocial personality disorder doesn't necessarily involve such a deep set personality disturbance.

56. He believed a resumption of the VOTP “would be in the best interest of the defendant and would help him to moderate his risk” (14.8 T). However, Mr Ardasinski believed the program needed to be more flexible to take account of SLD’s “unique characteristics” (14.47 T). He regarded SLD’s explanation for not deriving benefit from the course as “sound”. Complementary sessions with an experienced clinician could provide the necessary flexibility (15.15 T).

57. He said he was prepared to give SLD the “benefit of the doubt” over his asserted lack of recall of all of the details of the index offending (16.3 T).

58. The material seized from SLD’s cell in May 2020 didn’t cause him to alter his opinion as he was already of the view that SLD’s level of sexual preoccupation was of concern. Rating younger females did not necessarily correspond with a diagnosis of some form of paraphilia (17.49 – 18.2 T). He did not regard the concerning sexual preoccupation of SLD as crossing over into an area of sexual deviance (18.45 - 18.50 T).

59. The VOTP team are part of a dedicated therapeutic unit which isn’t available in the community (24.13 T). Mr Ardasinski said that an advantage of the VOTP in custody is that it allows for the observation of the behavioural change because the inmate is constantly under supervision. At the same time, it could perhaps be replicated in the community if the supervision is sufficiently intense. Mr Ardasinski agreed in cross-examination that exposing SLD in group therapy sessions “to some of the worst things that the worst people have done in that community that he really has no frame of reference for, that might actually be a bad thing” (25.24 - 25.28 T). I interpolate, according to Wood CJ at CL and my own appreciation of the index offending, SLD did one of the worst things that the worst people have done in the community.

60. Mr Ardasinski said that there is a risk that the same result will pertain next time if SLD was required to re-engage in the VOTP.

61. The nature of the index offending and SLD’s subsequent record of offending commencing in juvenile detention and continuing into adult custody may have meant that officers responsible for case management continued to see SLD “as an ongoing threat even if they later calm down. The leopard can’t change its spots mentality” (34.11 - 34.12T). If a CDO is made, this attitude may continue to dog SLD.

62. Mr Ardasinski was reluctant to diagnose that SLD actually has a personality disorder because of his youth when he came into custody and the effect of “his prison experience” on the development of his personality (34.40 T).

63. Although he was cross-examined for some time on the inapplicability of the tools and instruments he used as aids in assessing the risk posed by SLD on the basis that there was unlikely to be anyone included in the normative samples who reflected SLD’s circumstances precisely, Mr Ardasinski did not agree that “the diagnostic and predictive abilities are quite limited” (37.15 T). He said at (37.15 - 37.25 T):

There were juvenile murderers in the normative samples for these forensic instruments because there are juvenile murderers in custody around the world. Whether those juvenile murderers had the same fractured upbringing as the defendant is I don’t think a necessary pre‑condition to be able to use those because there would have also have been offenders in the normative samples that would have had a similar fractured upbringing where they are given up for ‑ as wards of the state and go into foster care.

64. He stated that recent New Zealand research demonstrated psychopaths are treatable. That being so, inmates with high psychothapy scores have been included in the VOTP. I interpolate this is somewhat different from the UK research referred to by Dr Furst in his report which I will refer to later, although Dr Furst has also referred to supportive NSW research.

65. Mr Ardasinski formed the view that SLD poses a moderate risk that violence perpetrated by him “will involve or escalate to life threatening physical harm” (44.40 - 44.45 T). In re-examination he accepted that he was something of “an outlier” in his reluctance to arrive at a diagnosis of Antisocial Personality Disorder (46.43 T).

Section 17(4)(d1) Risk Management Report

66. At [38] to [41] of the preliminary judgment, I summarised the “very detailed Risk Management Report dated 13 July 2020” prepared by Senior Community Corrections Officer, Terry O’Brien. Given SLD’s particular circumstances, Mr O’Brien expressed the opinion that he “was wholly unequipped to manage the challenges inherent in adjusting to community life” (p 46). But as I understand Mr O’Brien’s opinion, subject to a difficulty with placing SLD in suitable accommodation which has proved somewhat impracticable, Mr O’Brien is of the opinion that he can be managed in the community subject to the imposition of a suite of very stringent conditions imposed in accordance with s 11. These conditions involve ongoing supervision; field visits by departmental officers; restrictions on third party contact; monitoring including electronic monitoring; schedules of movement and curfews; the provision of ongoing psychological services; prohibitions, or at least restrictions on contact with children; and non-association and place restrictions. SLD’s compliance, I infer, would need to be very intensively monitored by a departmental supervising officer.

67. It is quite clear to me that the provision of suitable accommodation is an essential component of effective supervision under an ESO. In my judgment in SLD’s case this involves the provision of accommodation that is supervised 24 hours, 7 days per week. CSNSW has accommodation of this type under its control. As Ms Kelli Grabham, the Operational Governance Officer of the Extended Supervision Audit Team has made clear in her affidavits affirmed on 4 December 2020 and 26 February 2021. These facilities are the Nunyara Community Offender’s Support Program (“COSP”) and the Campbelltown Integrated Support Centre (“ISC”). The COSP can accommodate up to 45 male offenders including those with mental health issues and those subject to an ESO. The emphasis is on helping residents transition into stable accommodation in the community. The ISC is a 26-bed residential program “for supervised high risk offenders who have no other suitable accommodation” (affidavit 4 December 2020 at [29]).

68. I am of the opinion that placement in either of these facilities would be suitable for SLD. However, it seems that although both are agencies within CSNSW, they are relatively autonomous and management has the authority, apparently, to refuse a placement. In the case of the Nunyara COSP, SLD has been declined a place on a number of occasions since 25 July 2016 because of an “alert” requiring him not to be alone with female staff, general staff safety alerts and a history of assaults against staff. As he is yet to complete the VOTP he is also regarded as an untreated violent offender. He has not demonstrated that he can submit to supervision “in a normal disciplined environment and mix with other offenders” (Affidavit 4 December 2020 at [25]). As at 4 December 2020, the ISC had not made a decision about placing SLD pending the decision on a further application to the COSP.

69. Ms Grabham had made a number of applications to various external accommodation providers as detailed in her affidavit without succeeding in obtaining an offer. I interpolate that in my view given SLD’s particular needs, the majority of the places, in any event, are unlikely to have been suitable.

70. In her affidavit of 26 February 2021, Ms Grabham detailed further attempts to place SLD, including at the COSP on 26 February 2021. The application was rejected for the same reasons as previously.

71. On 26 February 2021, the Acting Manager of the ISC rejected a request for placement for substantially the same reasons. Despite other enquiries, no other appropriate placement was located.

72. In cross-examination, Ms Grabham said that suitable accommodation is a very important aspect of risk reduction strategy (131.40 T). In SLD’s case there needs to be “an appropriate level of supervision… and a level of stability or permanency” (132.15 - 132.20 T). Ms Grabham said that his very young age on entry to custody and his lack of adult experiences in the community were “complexities of this matter” (133.26 T); so too, the absence of any “effective community ties” (133.31 T).

73. Obviously if SLD was released to an ESO, the ESO team would continue their efforts to try and find appropriate accommodation and funding (141.45 T).

74. In answer to a question from me, Ms Grabham said even if funding was not an issue, if an ESO was made CSNSW had not identified a place where SLD could be accommodated upon release (143.45 T).

75. I elicited the following evidence from Ms Grabham (144.40 – 145.30 T):

Q. I know you cannot speak generally because everyone has a different experience in custody and people might have undertaken courses successfully and the like, and some people have not done. But has it been necessary, on any of the previous cases that you have been involved in, not just as in the senior position now, that special arrangements have been made to accommodate a particular offender, in either the ISC or COSP because of that offender's particular history?

A. Yes, offenders have been accommodated in both the ISC or COSP, not only because of their offending, but because of other concerns and also on the other side of things such as high media attention or public interest that have caused safety for them at other locations, yes.

Q. But what I was trying to find out is whether, given the particular concerns that are given to an individual, that might give rise to, has it been ever been (a) necessary, and (b) possible to make special arrangements outside the ordinary run of the mill management within the COSP or within the ISC?

A. I would suggest that there is. There is a capacity for the both locations. They have a crisis bed at both locations, but again to access that bed, referral has to be made and the same information that I have provided in the referrals needs to be provided and they make the decision about whether it is an appropriate referral as a crisis also.

Q. I think Ms Jardim was trying to find out, or it is underlying something Mr Kerkyasharian will put to me by way of argument, the danger that this could be a vicious circle and there will never be a conclusion to the problem. Can you help me with that?

A. I agree. It is a very complex matter and every time we apply for something at this stage we hit a brick wall or be declined for a variety of different reasons, both within the Department and also within the community options that we have available to us. But, all I can say is that, depending on whatever the outcome of the court is, the ESO team continue to work out through those issues and try to find funding options. But, as I said before, we can't predict what will happen in the future.

Q. I am just trying to find if there is some solution. I know you don't control the COSP or the ISC, is there some kind of, higher, as it were, dispute resolution mechanism within the Department to which there can be an appeal to people, even more senior than you, and the people who manage the COSP and the ISC?

A. Of course, your Honour. We can certainly take those issues to our senior hierarchy to see if they hold the same views, or if they hold different views and that would then impact a potentially new referral.

It seems to me from this evidence that there is at least a prospect, given additional time, and a definite start date, provided SLD completes the relevant intensive program, that CSNSW could find a place for SLD in either the Nunyara COSP or the ISC with appropriate arrangements as to supervision. In re-examination Ms Grabham agreed that completion of the VOTP would be taken into consideration by accommodation providers. She said, “I don’t see how that could impact negatively on a referral” (146.12 T).

Section 17(4)(e) engagement in treatment or rehabilitation programs

76. In my preliminary judgment I said (at [42] – [46]):

“Mr Ardasinski and Mr O’Brien both indicate that there has been what seems to me to be surprisingly little offered to SLD by way of treatment or rehabilitation in his nearly 20 years in custody. Mr Ardasinski is perhaps more obviously sympathetic to SLD than Mr O’Brien. The latter is more “matter of fact” in recounting the history. It is clear that SLD has been a difficult management challenge for CSNSW. Having received a long sentence, and in custody since the age of 13 years and 10 months, he has been in a somewhat unique position within juvenile detention and adult correctional institutions. His history of offending in custody, breaches of prison discipline and inappropriately sexualised behaviour towards female staff have made him difficult to manage. He has been frequently moved from centre to centre which has inhibited the availability of suitable programs. Moreover, he has spent the vast majority of his time in either segregation, because of his intractability or recalcitrance, or protection at his own request because of the nature of the index offending. As I have relayed above in a different context, initially he was the subject of much victimisation.

Then there are the challenges of his severe Antisocial Personality Disorder. Such a condition is not that uncommon in the New South Wales corrections system. But it does make the given inmate more difficult to manage and treat because of his attitudinal issues.

This combination of circumstances has meant that SLD has not progressed through prisoner classifications in a way that would open up to him greater opportunities for rehabilitation. Apart from infrequent psychological assessment and consultation, it was not until June 2017 that SLD was allocated “to the case load of the PBDS”. By then, of course, he had been in custody for 16 years. And it was not until July 2018 that he was assessed and an individualised treatment plan developed. The plan was spread over 3 phases. SLD completed phase 1 in April 2019 and phase 2 in July 2019. He exhibited treatment interfering behaviours, resistance to change and difficulty with interpersonal interactions with female facilitators. At the same time he did make progress. Likewise, he made further progress in the phase 2 program, but continued to endorse attitudes supportive of violence, such as in self-defence. He was influenced in this by another likeminded group member when he was present at the meetings.

Bearing in mind the mixed views about his suitability, phase 3 consisted of placement in the VOTP which commenced in October 2019. His participation was suspended in February 2020 due both to his request to leave the program and what was regarded as inappropriate and intimidating behaviour or comments towards a female staff member. This led to him being transferred to another centre and being placed, again, in segregated custody. From material written in his own hand including that seized from his vacated cell, it is clear that SLD felt strongly that the VOTP course content did not relate to him or his circumstances given the nature of his offending and the consideration that he had been in custody since early adolescence, when all other participants were adult offenders whose motivations and circumstances were different from his.

As I have pointed out, Ms Tulloh, at least, recognised that the VOTP was unlikely to be a good match for SLD given his particular circumstances including his Anti-Social Personality Disorder. Possibly, greater success might be obtained from participation in a one on one therapeutic course conducted by a male psychologist. Although, the threatening letter the subject of in-custody offending was written to a male. Sustained individual treatment is more likely to happen under supervision in the community than in custody.

77. Having reviewed the evidence, for the purpose of the final hearing and considered the other evidence led, I am satisfied that these provisional views have largely been borne out by the evidence at the final hearing. Having said that there are some aspects of the evidence led at the final hearing which need to be taken into account and may lead to slightly altered conclusions. Mr Ardasinski, in oral evidence, said about 25 percent of prison inmates suffer from an Antisocial Personality Disorder. He also said that, as I have recounted above, that recent New Zealand research suggests that these disorders are treatable and that such an inmate may derive benefit from participation in the VOTP course.

78. In his first report of 20 February 2021 (Exhibit A), Dr Richard Furst (page 31 – 2) expressed the view that SLD should undertake VOTP “and/or” the High-Intensity Sex Offender treatment program (HISOP). He pointed out that studies relating to like programs in the United States and the United Kingdom “have so far failed to demonstrate statistically significant reductions in rates of violent and sexual reoffending amongst groups of sexual offenders and violent offenders”. He also said, however, that studies published by the New South Wales Bureau of Crime Statistics and Research “suggest there are specific benefits in terms of reducing general offending and reducing the rate of offenders returning to custody in follow-up periods, even if the overall rate of sexual offending and/or violent offending is not significantly reduced.” On the whole, this seems to suggest that SLD would benefit from completion of the VTOP.

79. On reflection Ms Tulloh’s view that the VOTP was unsuitable for SLD because of his Antisocial Personality Disorder may be out of step with the studies referred to by Mr Ardasinski and Dr Furst. I acknowledge her view that a one-on-one therapeutic course conducted by a male psychologist may also be appropriate and in this regard, the evidence of Dr Parker is germane. SLD deals with his involvement and attitudes towards the VOTP at [30]–[35]. It will be recalled that Mr Ardasinski thought SLD’s reasons for withdrawing from the course were “sound”, or, I would infer, at least rationale.

80. In paragraphs [36] to [41] of his unsworn affidavit, it seems clear that SLD will be resistant to re-entering the program. He said in adamantine terms (at [38]):

I never said to anyone that if I got CDO I would do the VOTP. I will never do the program. (My emphasis.)

He preferred to pursue one-on-one therapy of the type he has been undergoing with Dr Parker.

81. In her report of 22 February 2021 (Exhibit B), Dr Susan Pulman while recommending that SLD be subject to a CDO for a period of 2 years said (at page 19):

There is indication however that [SLD’s] violent behaviour has reduced in recent years. Despite this, [SLD] has not completed a program such as a violent offenders treatment program and participation in such a therapeutic intervention or individualised program is necessary to ameliorate his current high risk of committing a serious violent offence.

Section 17(4)(e1) available options

82. I set my provisional views about this topic out at [47]–[48] of my preliminary judgment. The options are, of course, either a CDO or an ESO. So far as the former is concerned, it should not be overlooked that the risk of SLD offending in a violent way is not confined to his risk if at liberty in the community. He has offended in a violent way in custody. As late as mid-2020 he threatened to self-harm and harm officers such that he was required to be subdued with “the deployment of chemical weapons”. I assume capsicum spray.

83. Dr Furst (Exhibit A, page 32) is of the view that the appropriate steps necessary to facilitate SLD’s transition into supervision in the community include completing the psychological treatment programs he has identified; acceptance of psychiatric input with a view to consideration of treatment with antilibidinal medication; improved levels of insight and attitudes in relation to his past offending; acceptance of the need for long term supervision; demonstration of a capacity to get on with other inmates at lower security levels; and satisfactory completion of episodes of day leave.

84. Apart from the consideration of antilibidinal medication, Dr Pulman’s description is not so dissimilar. She recommends: completion of the recommended program; no further incidents of misconduct or inappropriate behaviour toward custodial staff; the development in consultation with others of “a realistic plan for integration into the community”; referral to a community based VOTP program; and successful escorted and supervised day leave to allow an opportunity for SLD to demonstrate compliance in a pro-social manner. Electronic monitoring may have a part to play initially.

85. I confess to seeing real difficulties with SLD complying with the regime suggested by either Dr Furst or Dr Pulman. Given his apparently adamant refusal to re-engage with VOTP (whatever Mr Ardasinksi’s view about the soundness of his reasons), he is likely to fall at the first hurdle. That is not to say that SLD should be permitted to set his own agenda. However, it is unlikely that he can be forced rather than cajoled into compliance.

86. Moreover, I have had the benefit of evidence from Angela West, the General Manager of Inmate Classification and Placement whose affidavit affirmed on 1 March 2020 was read in the proceedings. SLD is currently classified as Category A2 relating to inmates who in the opinion of the Commissioner should at all times be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment. High risk offenders are subject to the functions of the Serious Offenders Review Council (“SORC”) in accordance with s 197 of the Crimes (Administration of Sentences) Act 1999 (NSW). The SORC can provide advice to the Commissioner CSNSW in relation, inter alia, to the security classification of serious offenders and the development of programs for them. Under s 271A of that legislation, the regulations may provide for the preparation and implementation of plans of management in respect of persons who are high risk offenders and the provision of services and programs in respect of those persons. The regulations may also confer functions on SORC in respect of them. On my review of the regulation, no specific or special provision is made in respect of high risk offenders. Rather, they seem to be subject to the general provisions applicable to all convicted inmates. The provisions of s 198 which apply to offenders subject to a CDO by virtue of s 271A appear to make it difficult for a serious offender to progress to a less stringent security classification. According to Ms West, serious offenders may not be classified below category C1 until recommended therapeutic interventions have taken place. An offender would need to be category C2 or below to be eligible for escorted or day release under a local leave permit. C1 inmates are therefore ineligible day release or leave.

87. According to paragraph [18] of Ms West’s affidavit, SLD is managed by both the Review Committee and the High Security Inmate Management Committee. Progressions in classification, placement and management are required to be assessed by both committees and referred to the Commissioner for approval. In terms of practice, Ms West said in cross-examination that serious offenders are “reviewed at least once a year” (117.20 T). The review may occur more frequently “in a time frame of … six months” (117.31 T), “It all depends on the progress of the offender”. She also confirmed that a high security inmate, “generally speaking” would not be classified as a C classification (118.46 T). In Ms West’s opinion, it was unlikely that SLD could lose his high security inmate designation within the next six months (120.50 T). It could potentially occur within twelve months (121.2 T). Progression of a high security inmate to a lower classification will depend upon whether they have “addressed their offending behaviour and they have been positive contributors within the correctional system in regard to how they interact with others” (121.44 T). As a matter of practice, there is no particular or special track for offenders on a CDO, they are “able to access the programs and services similar to all other inmates” (125.6 T).

88. All of this evidence rather suggests that one needs to be pessimistic about SLD’s ability to progress whether he is on a CDO for five years, as suggested by Dr Furst or for two years as suggested by Dr Pulman.

89. As I said in paragraph [48] of my preliminary judgment, “the very stringent conditions of supervised release described by Mr O’Brien, provided that they are assiduously applied, do provide an option for reducing [SLD’s] risk of re-offending in the community over time. However, the absence of a secure, stable, presently identified residence is a real problem with his release” on an ESO.

90. On review of this evidence, although one must be naturally guarded in one’s prognostications about SLD’s compliance and his failure to progress to the lesser classifications in custody is of real concern, for what it’s worth, there may be a greater chance of him complying with a tailored stringent suite of conditions of supervision under an ESO than with the general requirements of good order and discipline in custody. On one view, his conduct is said to be better in custody than it once was, but this is not entirely clear to me.

Section 17(4)(e2)(f) and (g) – compliance with other obligations

91. As SLD has been steadfastly denied any release to parole he has not had the opportunity to demonstrate any level of compliance with that degree of trust.

92. As I said at [51] of my preliminary judgment, the nature of his index offending means that SLD would be subject to obligations if released, under the Child Protection (Offender Registration) Act 2000 (NSW) and possibly the Child Protection (Offender’s Prohibition Orders) Act 2004 (NSW). As he has not been at liberty no occasion has arisen for him to comply with any such obligations. But it does seem unlikely that reporting obligations or even a prohibition order under the latter legislation would be sufficient to manage the risk of further offending he presents.

Section 17(4)(b) the opinion of the experts appointed by the Court under s 15(4)

Dr Furst’s opinion

93. In his first report of 20 February 2021 (Exhibit A), Dr Furst expressed the view that SLD was co-operative and lucid throughout the assessment period, although his speech and communication style were emotionally detached. He regarded SLD as arrogant, resenting his treatment in custody. There is no evidence of psychosis. He gave a selective and somewhat unreliable account of past events as he perceived them.

94. Dr Furst is of the opinion that the relevant diagnosis in SLD’s case is that of Severe Personality Disorder with a mixture/combination of antisocial, borderline narcissistic features (page 20). The expert said that people with this disorder have a history of Childhood Conduct Disorder, which in my view certainly fits in with the pre-index offending and other misconduct of SLD as disclosed by the evidence. The narcissistic features of the condition seem to be important as they involve an inflated sense of self-importance and an excessive need for admiration. Dr Furst said that other features include a disregard for the feelings of others, resentment of criticism, a sense of entitlement, grandiosity, callousness and unemotional traits.

95. SLD also has a chromosomal abnormality in the form of XYY syndrome. This is a congenital abnormality. There are physiological consequences. But perhaps more pertinently for present purposes, symptoms may include learning disabilities and behavioural problems such as impulsivity and reduced intelligence compared to one’s siblings. It can increase susceptibility to explosive temper, hyperactivity, impulsivity, defiance and, sometimes, antisocial behaviour.

96. Dr Furst said (at page 22):

People with severe personality disorders, especially of the antisocial variety, are over-represented in the criminal justice system. In some respects, this association is circular and his criminal offending being one of the core diagnostic criteria of anti-social personality disorder; however, the clinical features of antisocial personality disorder are also related to such individuals having a higher risk of offending, including “serious offending” as defined in “the Act”, compared to people without antisocial personality disorder (sic).

The expert also said:

A core feature of antisocial personality disorder is a lack of empathy and lack of respect of others, a tendency towards lying and deceitfulness, a lack of remorse for actions, which are clearly clinical features evident in [SLD] from a very young age and persistent throughout his period of management in custody over the last 20 years. Those traits are also worrying indications in relation to his future risk of committing a serious offence.

97. Dr Furst is also of the view that more recent research published in peer reviewed literature supports an increased risk of offending including for sexual and violent crimes amongst XYY individuals.

98. In Dr Furst’s opinion, SLD poses a high risk of committing a further serious offence of a violent and/or sexual nature. The primary clinical dynamic relates to his Antisocial Personality Disorder with a contribution from the XYY syndrome.

99. In Dr Furst’s opinion, the most reliable indicator of the risk of future offending is the nature of the past offending. He considers it hard to conceive of a more horrific offence than the index offending. The seriousness of the offending “is magnified by his attitudes and lack of remorse and lack of empathy, both at the time of his offending when effectively toying with the police, and in the years that followed, including a 20 year long refusal to disclose his true motivations for killing the child and feigning a loss of memory for his thoughts at the time” (page 24). Dr Furst characterised the index offending as “a sexual homicide”. He formed this opinion from the nature of the index offending and by taking the Pacific Palms incident into account. One might also add the stealing of underwear and urinating on a girl’s bed. SLD’s conduct in custody including his offending and in particular the content of threatening letter for which he was convicted contributes this assessment.

1. He has suggested that his conduct in custody has in fact improved in recent years.

133. I wish to make it quite clear that I am well and truly satisfied that SLD “suffers” a severe personality disorder of a Cluster B nature as diagnosed by Dr Elliot. I do not regard this as in any material way different from the diagnosis proffered by Dr Furst. I accept unreservedly that the deprivation of his early formative years for which he is in no way to blame, and perhaps his XYY syndrome, contributed to the development of what I will refer to as his prodromal Childhood Conduct Disorder as described by Dr Furst and evinced by his relevant history prior to the index offending. As I have already said, Dr Pulman very eloquently explained the structural changes in the brain brought by social deprivation including the absence of appropriate parental love and affection. Dr Furst described the possible contribution of the XYY syndrome. By the time SLD was adopted his condition was beyond retrieval by his adoptive parents, their best efforts notwithstanding. I have included the Pacific Palm’s incident in his proceeding misconduct for the reasons I gave above.

134. I am well satisfied from the evidence of Dr Furst and the evidence set out for the purpose s 17(4)(c) above, that when he murdered his three-year-old victim he was suffering from what Professor Greenburg described as the probable diagnosis of “Severe Personality Disorder with antisocial and psychopathic features”. The diagnosis was “probable” because in accordance with the relevant edition of the diagnostic manual utilised by psychiatrists at the time, antisocial disorder is not an available diagnosis until the subject has attained the age of 18 years. Dr Elliot made the same diagnosis.

135. The alternative argument that no diagnosis of personality disoder was available to be made because of SLD’s age when he committed the index offence and that his subsequent offending and other misconduct in custody is best understood as a survival strategy, rather than manifesting his personality disorder, is simply untenable. The relatively complex approach contended for by Mr Kerkysharian which I have summarised above involving separating relevant primary facts into self-contained and separate elements is unattractive. All of these apparently disparate areas of concern are accounted for by his personality disorder. Rather than view SLD as a victim of the system, which seems to be implicit in some of his contentions, an application of the law of parsimony exemplified by “Occam’s Razor” strongly suggests to me that the simpler explanation, that these matters are manifestations of SLD’s personality disorder should be preferred.

136. Acknowledging Mr Ardasinski’s opinion that loss of memory in relation to the index offending is “conceivable”, I do not accept it. I am of the opinion that SLD has complete recall of the circumstances of his very grave offending which he chooses not to disclose. I prefer the opinion of Dr Furst in this regard, robustly, even stridently, as it was expressed during cross-examination. This conclusion is consistent with the opinion of Dr Brent Walker (summarised above) and the opinion of Professor Greenburg who regarded SLD as an unreliable historian. Dr Furst’s opinion was also consistent with the opinion of Dr Elliot. When Dr Elliot examined SLD the latter made “no real acknowledgment of his index offence”. He claimed to Dr Elliot that he was unable to explain his offending and in Dr Elliot’s view SLD demonstrated no remorse. I am of the view that SLD is able but unwilling to speak fully of his index offending essentially for the reasons explained by Dr Furst.

137. As Wood CJ at CL suspected, and as Gillian Tulloh opined, this unwillingness to speak about the matter may be a function of his personality disorder. Ms Tulloh said that individuals with SLD’s “high scores” on the PCL-R display “no empathy, remorse (and) are manipulative and generally have little insight into their behaviour”. Ms Tulloh also stated that those high scores “are considered predictive of further offending”.

138. I am satisfied that there was a strong sexual motive in the index offending even accepting that the child was not interfered with sexually. This is supported by the Pacific Palms incident. Wood CJ at CL suspected as much, as did Professor Greenburg. Dr Elliot commented upon SLD’s sexually inappropriate presentation. And I accept the opinion of Dr Furst that the index offending was a sexual homicide for the reasons he gives. For this reason, I find the list of females with an attractiveness rating and in particular the violent pornography seized in the December 2020 cell search as particularly significant. The use of pornography may not be of itself predictive of further offending, but I accept the State’s submission that much of the material was particularly violent and degrading of women. That SLD thought of it just “as sex” is disturbing of itself. I accept the views of Dr Pulman about this material. I do not accept that this material demonstrates no more than the adolescent boy who did not grow up because he has been kept in custody. Viewed against the features of his anti-personality disorder, his pre-occupation with sex, including violent sex, is highly relevant to the assessment of risk. His ongoing inappropriate sexualised banter or comments directed towards female CSNSW staff should also be seen as an aspect of this rather than SLD’s clumsy attempt at flirtation, which in the context would be disrespectful and inappropriate in any event.

139. The Rev Muss material is also evidence relevant to risk in that it demonstrates that he does continue to fantasise about killing and sexual offending. This I take to be a manifestation of his Antisocial Personality Disorder, particularly of its narcissistic and psychopathic features. It is also notable that when he became aware that the Rev Muss had reported his disclosures to CSNSW, SLD became increasingly antagonistic towards him such that the program had to be “paused” (Exhibit BO 1, Vol. 2, page 856).

140. I accept that the familiar actuarial tools used in this area may have more limited application than usual, as explained by Dr Furst and Dr Pulman, because of SLD’s age when he committed the index offence. However, I do not regard the HCR – 20 v3 as falling into this category. Rather it provides structure for the marshalling of information upon which to make a clinical judgment, as explained by Dr Pulman. I am not of the view that the cross-examination directed to testing Dr Pulman’s knowledge and challenging the validity of the specialised knowledge underpinning it deprived HCR – 20 v3 of utility in the present case.

141. The assessment of risk in the statutory context is not determined purely by reference to available professional tools which may be applicable to a given case. Rather, the Court is required to make a judgment based on all relevant evidence including the opinions of relevantly qualified experts.

142. I am satisfied to a high degree of probability, by the evidence to which I have referred and for which I have expressed a preference, that SLD poses an unacceptable risk of committing another serious offence if not detained under a CDO at this stage. In coming to this conclusion I have had regard to the opinions of both Dr Furst and Dr Pulman as part of the body of evidence which I prefer. The assessment of risk is a matter for my judgment and it would be inappropriate for the Court to delegate that function to the Court appointed experts. However, s 15(4) renders the opinions of the Court appointed experts integral to the process. Section 17(4) makes it mandatory for the Court to consider them when determining the State’s application.

143. It remains that the opinions of the Court appointed experts are evidence and need not be determinative. But where, as here, both experts agree about the assessment of the risk I would be justified in rejecting their opinions only for very good reason. Those reasons would include the consideration, for example, that the facts assumed by the experts were not sufficiently like the facts as found by me to support the opinions expressed. This is not such a case. It may also include a case where the opinions expressed by the experts were not wholly or substantially based upon their specialised knowledge; or travelled well beyond their legitimate expertise. However, where that occurs the impugned opinion is not admissible. But there was no objection to their admission in this case. Indeed, it is not argued that the conclusions expressed are beyond expertise.

144. In my judgment, the risk of serious offending includes the risk of violent sexual offending and involves some risk of a further sexual homicide. Given SLD’s history, an element of premeditation and planning could well be involved. Although involving a consideration of historical facts, the offender’s clinical issues and the consideration of future probabilities, risk assessment in the statutory context is not determined on a numerical basis. While I accept Dr Furst’s opinion, it should be pointed out that his calculation tended to focus on the risk of commission of a further homicide/sexual homicide. Even so, his numbers demonstrating the risk of a sexual homicide offender committing a further homicide/sexual homicide at 25 to 250 times higher than the general male population is not insignificant for so grave a crime; nor is Mr Kerkyasharian’s less than 0.5 percent per annum. But this is not the statutory focus. The statute is concerned with the risk of commission of serious offences generally.

145. Dr Pulman expressed the opinion (Exhibit B, page 18) that SLD has a high risk of committing a further serious violent offence. In her supplementary report, (Exhibit B2) she explained this as committing an offence causing grievous bodily harm or homicide.

146. I appreciate that Mr Ardasinski expressed his opinion with some restraint. He estimated the risk of violent re-offending generally to be in a high risk category relevant to other men who have offended violently. He added, “it remains likely that any future violence [SLD] perpetrated could conceivably reach the threshold to be considered a “serious violence offence”” (Exhibit BO-1, Vol. 1, page 29 [[75]). Mr Ardasinksi also considered that SLD shared “several characteristics with sexual recidivists”. Although he did not consider it appropriate to opine that SLD poses a specific risk of sexual offending if released, if his ongoing sexual pre-occupation continued, “it may indeed be a sexual violence risk which will need to be taken into account in his risk management.” (Exhibit BO-1, Vol. 1, page 29). I do not regard Mr Ardasinski’s opinions to be helpful to SLD or as suggesting that the proofs proffered are not capable of discharging the elevated standard of “a high degree of probability”.

147. Although Dr Elliot thought the risk could be managed in the community under “a very stringent regime of close supervision” he does not seem to have been asked about any need for a period of continuing detention.

148. There are a number of reasons why I am of the view that the current risk is unacceptable if SLD is not kept in detention. First, that is the unanimous opinion of the Court appointed experts. Secondly, that opinion is based upon the conclusion each arrived at independently that SLD’s personality pathology has not been adequately addressed. And, at this time it is better addressed in custody by requiring him to undertake the VOTP. I appreciate that there is a significant body of reliable evidence led in this case that antisocial personality disorders of the type to which SLD is subject are not amenable to psychological treatment. However, I accept the opinion of Mr Ardasinski that recent New Zealand research shows that gains can be made, and of Dr Furst that New South Wales studies suggest the same thing, notwithstanding pessimistic outcomes in the studies in the United States and the United Kingdom.

149. Thirdly, there is also a degree of pragmaticism involved here. The VOTP is available. Its purpose is to provide an intensive program of rehabilitation for violent offenders in custody before their release into the community. It appears to be the best CSNSW has to offer and I am of the view that it is incumbent on SLD to fully engage in the program before his release. From the point of view of community protection at least, he should be given another opportunity.

150. Fourthly, notwithstanding 20 years in custody, SLD has failed to progress through less constraining classifications as are available to all inmates. This has been due to his custodial misconduct, not limited to offending, and his failure to show that he is willing to participate appropriately in the requirements of custodial life. As I have already stated there may be real difficulties with SLD complying with the regime suggested by either Dr Furst or Dr Pulman. However, those observations are not relevant to the assessment of risk.

151. Notwithstanding Mr Ardasinski’s concession that SLD’s reasons for withdrawing from the VOTP were “sound”, he remains of the opinion that he should undertake it, and it will be of benefit to him. Dr Parker is of the same view. None of this detracts from the idea that he will also benefit from an individualised program conducted in conjunction with the VOTP.

152. Fithly, there is the difficulty with the absence of suitable supervised accommodation. As I remarked in my preliminary judgment (at [56]), this situation cannot be permitted to go on forever “and it cannot be beyond the wit or resources of the Commissioner to make suitable provision to accommodate SLD while reducing the perceived risk … to female staff”. However, I conceive it to be beyond my power to order the Commissioner to make a place available in either Nanyara COSP or the ISC at Campbelltown.

153. In my judgment the prescience of Wood CJ at CL has been borne out by subsequent evidence and SLD’s current clinical status. I repeat his Honour said (at [126] of the sentencing judgment; see the quote at [8] above):

… he must be judged as posing a significant level of future dangerousness and to be at a substantial risk of reoffending in both violent and sexual ways. There are also very strong indications from his history of elevating aggression and disruptive behaviour, and from the killing itself, that he will develop a significant antisocial or borderline personality disorder, of some magnitude.

I am not persuaded that SLD’s personality pathology has receded in any material way, all of the evidence including the recent evidence led before me clearly establishes that he continues to pose a significant level of future dangerousness which I am satisfied to a high degree of probability is unacceptable if not kept in detention.

Section 17 Decision

154. I fully appreciate that s 17 confers a discretion to dispose of the State’s application by either making a CDO, making an ESO, or dismissing the application. Given my findings as to risk, I do not consider it appropriate to dismiss the application. It is hard to envisage a case when s 17 has been engaged and regard is had to the safety of the community, that dismissing the State’s application would be an appropriate exercise of the Court’s discretion.

155. There may be cases where the Court is satisfied to the high degree of probability necessary that the s 5C(d) pre-condition has been met yet the making of an ESO rather than a CDO may be the proper order. But in my view an ESO under s 17(1)(b) will most often be appropriate when the Court has not been satisfied about s 5C(d) but is satisfied that the risk is unacceptable if the offender is not kept under supervision: s 5B(d).

156. In exercising the s 17(1) discretion, I have called to mind that an offender shares the general community right to be at liberty after the completion of his sentence. And this will be an important consideration for the Court to have regard to in the exercise of its discretion. In this regard, I have borne in mind the dictum of McCallum J (as her Honour then was) in State of New South Wales v Donovan [2015] NSWSC 1254 at [2] – [3]:

After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is “the most fundamental and important of all common law rights“. It is one which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes“: Williams v R [1986] HCA 88 ; 161 CLR 278 at 292 per Mason and Brennan JJ.

Some offenders reoffend (some, predictably so). In Fardon v A-G (Qld)[2004] HCA 46 ; 223 CLR 575 at [12], Gleeson CJ observed that the way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is “an almost intractable problem“. At common law, the response is governed by the principle of proportionality, which prohibits preventive detention. The principle holds that, while it is permissible for a sentencing judge, in fixing an appropriate sentence, to have regard to the protection of society, a sentence cannot be increased beyond what is proportionate to the crime in order merely to extend the period of protection for that purpose alone: Veen v R (No 2) [1988] HCA 14 ; 164 CLR 465 at 472. The case of Mr Veen provides an exquisite illustration of the problem.

157. In Jones v the State of New South Wales [2020] NSWCA 202, Basten JA (at [23]) said that in the exercise of the discretionary power regard should be had to the importance of maintaining rights of liberty to the extent possible consistent with the purpose and express provisions of the Act. And McCallum JA at [39] said:

There is some guidance as to what “adequate supervision“ does not mean. In Winters v A-G (NSW)[2008] NSWCA 33 ; 182 A Crim R 107, the primary judge had expressed the view that it meant “supervision which reduces the risk below either a high degree of likelihood of reoffending or making it ‘less probable than not’“ (recorded in the appeal judgment at [42]). It was not necessary for the Court of Appeal to determine that issue, but Giles JA (with whom Mason P relevantly agreed at [2]) disapproved that formulation. His Honour noted that in Attorney-General of New South Wales v Tillman[2007] NSWSC 605, the court had held that “likely“ did not mean “more likely than not“ (a proposition now reflected in the statute): see also Tillman v A-G (NSW)[2007] NSWCA 327 at [89] to [90] per Giles and Ipp JJA Justice Giles considered, accordingly, that the primary judge’s view could not stand. His Honour said at [45] “the standard of making the risk of re-offending less probable than not would have been unduly favourable to the [defendant]“.

Bearing these important, indeed fundamental, principles in mind I am of the view that the nature of the risk I have identified, the paramount consideration of community safety, the prospect of amelioration of the risk if SLD undertakes a VOTP in custody in a meaningful and constructive way and the current difficulty with the availability of suitable accommodation means that the proper exercise of my discretion requires the making of a Continuing Detention Order.

158. So far as the last consideration concerning accommodation is concerned, as McCallum JA has observed, a point will be reached beyond which that consideration itself cannot stand in the way of SLD’s release under supervision.

Duration

159. Notwithstanding my general acceptance of Dr Furst’s opinions, I am not of the view that I should impose a CDO of 5 years duration. Notwithstanding the desirability, after SLD’s completion of the VOTP, if he undertakes it, of him achieving a classification that would permit his controlled and gradual release into the community, for the reasons I have rehearsed that may not be reasonably capable of being realised. It is the experience of the Court in this area that many offenders are released into the community at the completion of their whole sentence under stringent supervision pursuant to an ESO without having had the benefit of day or work release previously. Notwithstanding the level of dangerousness I have assessed, at some stage the State must accept the responsibility for SLD’s release, as Dr Elliot would have it, under the stringent conditions of close supervision.

159. Dr Pulman has suggested a period of 2 years. Her prescription also depends upon SLD making himself eligible for day release prior to his release under supervision. I am not confident that a classification that would permit this is achievable by SLD within a reasonable period time, but I hope my pessimism is misplaced.

160. Principle suggests that the duration of the order should be commensurate with the period necessary for the risk SLD poses to be ameliorated sufficiently for it to be managed under an ESO. Realistically that is his only likely pathway to liberty. This involves SLD not only accepting the challenge of undertaking and completing the VTOP as a willing, contributing participant, but also adjusting his general behaviour in custody to demonstrate he can comply with prison discipline without disrupting the good order and security of the correctional centre where he is housed.

161. I am satisfied that the period of two years sought by the State is likely to be the time necessary for SLD to achieve these goals. In making such an order I have borne in mind that Mr Kerkyasharian strongly submitted that if a CDO was to be made, it should be for a period of 28 days only or, at the very outside, not exceeding 6 months and I have given those submissions very earnest consideration.

Section 25B

163. I have also given earnest consideration as to whether I should also make an ESO in respect of SLD to commence on the expiry of the CDO under s 25B. I requested that counsel provide me with written submissions concerning this topic, which I have gratefully received and considered.

164. While there is much to be said for making cumulative orders under s 25B to provide certainty to both parties and to avoid the unnecessary duplication of further proceedings at the conclusion of the CDO, I have decided against exercising that power.

165. Despite my pessimism I hope that SLD will make real progress over the next 2 years. Although it is likely that the s 11 conditions that will be imposed with any ESO made on completion of the CDO will be stringent, it is important that they be fashioned as appropriate to the risk as assessed then. Although the Court has wide power to vary an ESO under s 13, my own view is the formulation of the conditions under which SLD may be released at the conclusion of the CDO should abide any revised risk assessment made closer in time to the expiration of the order.

166. My orders are:

1. Under Sections 17 and 18 Crimes (High Risk Offenders) Act 2006 (NSW) SLD is subject to a Continuing Detention Order for a period of 2 years commencing on the expiration of the Interim Detention Order on 22 April 2021;

2. Under Section 20 of the said Act, direct that a warrant issue for the committal of the said SLD to a correctional centre for the period specified in Order (1);

3. Confirm Order (5) pronounced on 14 December 2020.

**********