State of New South Wales v SLD (Preliminary)

[2023] NSWSC 330

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v SLD (Preliminary) [2023] NSWSC 330

Hearing dates:

23 March 2023

Decision date:

05 April 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Order pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant be subject to an interim supervision order commencing on 17 April 2023 for a period of 28 days (“the interim supervision order”).

(2) Order pursuant to s 11 of the Act that the defendant is for the period of the interim supervision order to comply with the conditions set out in the Schedule to these orders.

(3) Order pursuant to s 7(4) of the Act:

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

(b)   That the defendant attend those examinations.

(4) Order pursuant to s 19 of the Act that the continuing detention order made by Campbell J on 22 April 2021 is varied to expire on 16 April 2023.

(5) Order pursuant to s 13 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the orders relating to the defendant’s pseudonym made pursuant to the short minutes of order filed in Court on 23 March 2023 be revoked, so that the defendant will continue to be identified as SLD.

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

Catchwords:

HIGH RISK OFFENDER – Preliminary hearing –Serious violent offender – Application for interim supervision order – No controversy about the making of order – Line of sight condition imposed given significant risk posed by defendant and need for gradual reintroduction into community

Legislation Cited:

Crimes Act 1900 (NSW), ss 31, 60A, 61M, 90A

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 7, 5C, 5B, 9, 10A, 10C, 11, 15, 17, 18A, 18C, 19, 20

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 13

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119

R v SLD [2002] NSWSC 758

State of NSW v SLD (Final) [2021] NSWSC 409

State of NSW v SLD (Preliminary) [2020] NSWSC 1803

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
Mr P Aitken (Plaintiff)
Mr D Bhutani (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ryan Payten Le (Defendant)

File Number(s):

2023/67091

JUDGMENT

1. By a summons filed on 28 February 2023, the State of New South Wales (the plaintiff) sought interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. Orders are sought for the appointment of two psychiatrists and/or psychologists to examine SLD (the defendant) and furnish their reports to the Court and directing the defendant to attend their examinations (ss 7(4) or 15(4)). The plaintiff sought an interim detention order (an IDO) for a period of 28 days from 22 April 2023 (ss 18A, 18C and 20(1)), which is the date of expiration of a continuing detention order (a CDO) to which he is presently subject. In the alternative, the plaintiff sought the imposition of an interim supervision order (an ISO) for the same period (ss 10A, 10C(1) and 11). Orders are also sought forbidding access to the court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. The plaintiff seeks final orders that the defendant be the subject of a CDO for a period of 1 year (ss 5C and 17(1)(b)), followed by an extended supervision order (an ESO) for a period of 5 years (ss 5B and 9(1)(a)). As is usual when an ESO is sought, a schedule to the summons set out the proposed conditions of that order. In the alternative to the CDO, the plaintiff maintains the application for an ESO for a period of 5 years.

4. The plaintiff amended its prayers at the hearing to seek only an ISO as an interim constraint upon the defendant. I was advised that a place is available for the defendant at a suitable location in the community from 17 April 2023.

The relevant statutory provisions and principles

5. Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application pursuant to s 7(5) of the Act.

6. Accordingly, although this is a preliminary hearing, it is necessary to evaluate whether the supporting material is sufficient to justify the making of an ESO, pursuant to the relevant statutory tests.

7. Three prerequisites for the making of an ESO are required by s 5B of the Act. Section 5B, subs (a), (b) and (c), concern aspects of the defendant’s status as an inmate or supervised offender in the community. Those subsections are not contested, and I am independently satisfied that they have been met.

8. This leaves the key provisions of ss 5B(d) and 10A(b) for consideration, namely, whether it appears to the Court that the matters alleged in the supporting documentation would, if proved, satisfy the Court:

“…to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

9. Section 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is “more likely than not” in order to determine that there is an “unacceptable risk” of the person committing such an offence.

10. Section 9(3) of the Act sets out the matters the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that these matters are also relevant to an application for an ISO.

11. Section 9(2) of the Act provides that, in determining whether to make an ESO “the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

12. In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119, at [98], in relation to comparable provisions in an earlier version of the Act.

13. As mentioned, the defendant accepts that the statutory preconditions for the making of an ESO (s 5B(a)-(c)) are satisfied. The defendant also accepts that the Court could be satisfied that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an ESO (ss 5B(d)).

The defendant’s background

The index offence

14. On 29 January 2001, when the defendant was aged 13 years and ten months, he crept out of the home of his adoptive parents in the early hours and broke into another residence nearby. He abducted a three-year-old child from her bed after removing her nappy and left her nightdress outside her home. He carried her to a concrete driveway where he stabbed her through the heart with a steak knife, covering her mouth as he did so to stifle her screams. He disposed of her body by concealing it in long grass nearby and arrived back home at 2:45am, when he was confronted by his parents. He told them he had been out walking. Later that day, his parents learned that a child in the area had gone missing during that night and notified police that the defendant had been in the area at the time. Police interviewed the defendant, who initially gave elaborate exculpatory accounts of his movements, including that he had seen the girl while he was out but did not know what had happened to her, before finally admitting the offence.

15. The defendant pleaded guilty to the murder and was sentenced by Wood CJ at CL on 30 August 2002 to a term of imprisonment of 20 years with a non-parole period of ten years: R v SLD [2002] NSWSC 758. In the course of his judgment, his Honour noted the defendant’s attempts to mislead investigating police, his explanation for removing the victim’s clothing (to find a good place to stab her), his denial that he intended to sexually assault her and that he had given different explanations as to why he committed the offence. Wood CJ at CL noted that in the course of being interviewed by police:

“Somewhat disturbingly [the defendant] gave one answer … which suggested that, once he had killed one person, he expected that it would become easier killing the next one and the one after that.”

16. His Honour examined evidence of the defendant’s “bleak” background and upbringing, involving foster placements from the age of one, state wardship from the age of three and adoption when aged about six. He was allegedly sexually assaulted when aged ten by a person to whom he had felt an attachment. The defendant has an XYY chromosomal abnormality and a facial abnormality, which was diagnosed as Trigonocephaly, which exposed him to teasing.

17. His Honour considered reports and evidence from two forensic psychiatrists (Dr Bruce Westmore and Dr Brent Waters) and two clinical psychologists (Peter Champion and Timothy Hannan), as well as other psychologists. The defendant’s level of intellectual functioning was determined by the psychologists to be in the borderline (Champion) and low average range (Hannan). The defendant had a history of disturbing behaviours involving fire-lighting and cruelty to animals.

18. The psychiatrists were unable to come to definitive diagnoses of the defendant, because he was still in the developmental period of maturation. Wood CJ at CL noted:

“63   [Dr Waters] made it clear that there would be difficulties in coming to any definite diagnosis, as to the presence of a personality disorder, before the age of 18 years, although [the defendant’s] history of a very disruptive pattern of behaviour from early childhood, which had worsened during early adolescence, meant that the chances of him developing an antisocial or substance abuse disorder, or a borderline personality, were in excess of 50% and could be of the order of 70%. The fact that [the defendant] had killed once, he agreed, made it even more likely that such a disorder would develop.

64   His continued expression of homicidal thoughts, Dr Waters accepted could either be genuine reflections of his feelings, or a means of attention seeking. Which it was he could not determine with any certainty, although he accepted that [the defendant’s] observations about it being easier to kill again were of concern.

65   Additionally he agreed that while he appeared to respond to a very close supervisional structure, that did not mean that he would continue to behave in the same way after those controls were lifted.

66   In this regard, he accepted the desirability of the possibility of a redetermination or review of sentence for an offender such as [the defendant] when he attained the age of 21 years or thereabouts, because by then he would have been incarcerated for 6 years and his response or progress to the several programs available could be better assessed.”

19. Similarly, his Honour noted, at [73], that Dr Westmore:

“… raised the possibility of [the defendant] suffering from a severe personality disorder, but was reticent, due to his age, to provide a definitive opinion to that effect.”

20. Later, his Honour noted:

“80   While his prognosis was poor at the present time, Dr Westmore accepted that in view of his age, immaturity, intellectual deficits, and the problems in understanding the impact of his earlier history, a positive outcome could not be excluded. In this regard he agreed that if [the defendant] was gaining some insight into the connection between anger and behaviour, and if he was able to form a close therapeutic relationship with a psychologist at the detention centre, then these could be positive indicators.

81   Dr Westmore agreed with the comments of Dr Brent Waters concerning the possibility that offenders, who comply with the ordered structures of the correctional system, can resume their dangerousness once released, that [the defendant] could fit into this category, and that those most likely to be at risk were the more vulnerable people in society. It was his opinion currently that ‘the balance of the information ... is against him in terms of the dangerousness issue.’

82   He agreed with Dr Waters that there was a tradition or practice not to say that a person has a personality disorder before he or she reaches young adulthood, adding:

‘.. as Dr Waters said, the pattern of behaviour during early life leads us to forming the diagnosis in reference to some personality disorder and he has that history of that at an early stage so I am really saying that he has got a very troubled personality at best and in a few years time we will become aware whether or not he has a severe personality disorder’.

83   He was also of the view that there would be merit, if it were possible, to redetermine [the defendant’s] position at a later time, observing that by the time he was in his early 20’s, ‘the patterns of his behaviour are going to be really quite determined and evident’.”

21. His Honour concluded:

“138   As the law presently stands, I must impose a sentence in the light of what is presently known, notwithstanding the circumstance that none of the psychiatrists or psychologists who have examined [the defendant] and who have given evidence, can be certain what the future holds, or what truly motivated him. I have given consideration to the possibility of adjourning the sentencing to a date well into the future, so that [the defendant’s] performance in the Robinson Programme can be better assessed, and so that a firmer diagnosis as to his mental state can be made. However, I am of the view that to leave the matter in a state of uncertainty for the period required, would be counter productive, and that a case such as the present does not admit of an application of the kind of principles which underlie Griffiths remands.

139   The only alternative, as I see it, is to impose a significant head sentence which would reflect my assessment that the present offence fell into the upper range of objective seriousness, and that [the defendant] poses a significant risk of recidivism and of being a serious risk to the community in terms of potentially killing again or committing sexual offences.

140   The interests of rehabilitation, and the faint signs that he may yet acquire some control of his anger, and some degree of empathy and social skills, through the intensive programmes available within the Juvenile Justice System and elsewhere within the Correctional System, should in my view, be reflected by fixing an appropriate non parole period. That should be one which will permit an extended period of release subject to supervision on parole, dependant however upon the way in which [the defendant] responds to these programs while in custody, and upon the resolution or development of the personality problems presently evident.

141   I am satisfied, by reference to his age at the time of the offence, his early childhood trauma, his intellectual impairment, the fact that he has not yet matured either intellectually or emotionally, and the special treatment which can be provided initially within the juvenile justice system, and later within the adult system, that these constitute special circumstances, so as to permit a variation of the usual ratio between the head sentence and the non parole period. Additionally they justify permitting [the defendant] to remain in a detention centre for a limited period after attaining the age of 18 years.

142   However, in view of the fact that he is physically very well developed, has limited empathy and a record of bullying and domination of younger children, as well as one of disruptive and aggressive behaviour over the past 8 months while held in custody, I consider that it would be inappropriate for him to remain in a detention centre beyond the age of 19 years. I say that having regard to the interests of the other detainees who are likely to be exposed to the kind of aggressive behaviour and poor example which he has set so far, but also having regard to his own interests since there is a risk that experience, age and superior physical strength will only entrench any tendency he has to dominate other more vulnerable persons.

143   The period between now and the age of 19 years I regard as sufficient for him to gain at least the school certificate, as well as to establish the basis for readjustment and socialisation, and to prepare him for vocational training more relevant to an adult.

144   In the meantime he can benefit from the sexual assault and violent offender programmes, and can then reinforce those gains in the programs specifically available for adults. In that regard I do not consider that a sentence and non parole period can properly be handed down which would free him from transfer to the adult correctional system. Any such sentence would fail to reflect the objective severity of the offence or the need for the protection of the community.”

22. The defendant was also charged with two offences that were alleged to have been committed the week before the index offence; namely, detain for advantage and cause injury to the victim (Crimes Act 1900 (NSW), s 90A, (since repealed), and aggravated indecent assault of a person under the age of 10 years (Crimes Act, s 61M, since repealed). It appears that those charges were dismissed in view of the proceedings for the offence of murder. The allegations were to the effect that, while staying at a holiday resort with his family, the defendant broke into a nearby holiday unit at night and woke and abducted a six-year-old girl using the ruse that her mother wanted to speak with her and was waiting outside. In a recorded interview, the girl said that the defendant pulled her away from the house. She cried and he tightly covered her mouth, saying she would die if she did not keep quiet. At one point, he “changed his face”. He agreed to take her home if she would “show my private”. She pulled down her pants and “he touched it” and then took her home.

23. The defendant was asked about the incident immediately following his arrest for the index offence, while he was being conveyed to the police station in a police vehicle. In a statement that was tendered without objection in these proceedings, a detective said that when he asked the defendant about the incident, he replied: “it was a trial run”. He told the defendant that he understood that the girl said that during the incident he “changed his face”. The detective stated that the defendant lowered his head towards his lap, lifted it and turned towards the detective, who stated: “His eyebrows were raised and he was glaring at me. His face was strained. He had deliberately distorted his face”.

Offences in custody

24. In September 2003, the defendant was convicted of assault occasioning actual bodily harm, which he committed in Reiby Juvenile Justice Centre earlier that year when aged 16. The circumstances were that while he was alone with a female nurse in her office, receiving treatment, he suddenly put her in a tight headlock which caused her to hit a filing cabinet thus receiving an injury. Her screams alerted a person outside who, on entry, observed the defendant holding a metal instrument which was later found to be filed down so that it was sharper at one end. He was not charged separately in relation to that allegation. He received a control order for a period of 12 months.

24. In October 2004, when aged 17, the defendant stabbed a Juvenile Justice worker in the neck and on his ear lobe with a pen while being restrained, following a threat by him to “stab the first boy that comes out of his room”. In 2006, he was sentenced to imprisonment for a period of 27 months with a non-parole period of 18 months, to be served concurrently with his murder sentence.

25. In June 2011, when he was aged 24, while detained in Goulburn Correctional Centre, the defendant gave a lengthy letter to his then-treating psychologist in which he threatened to torture and kill him. He claimed to investigating police that it was written by an alter-ego named “Thorn”. He was charged with an offence of delivering a document with a threat, contrary to s 31(1) of the Crimes Act, to which he pleaded guilty. As a result of the incident, he was transferred into a segregation area of the prison.

26. About seven weeks after that incident, when a prison officer slid a meal through a food hole at the bottom of his cell door, the defendant grabbed the officer’s wrist and slashed it, and his hand, with a razor that he had obtained by dismantling a disposable razor. The defendant threw it through the food hole and denied the offence, claiming that the officer may have cut himself on the door. The defendant was charged with recklessly wounding a law enforcement officer, other than a police officer, when in the execution of his duty, contrary to s 60A(3) of the Crimes Act. He was convicted following a trial by judge alone.

27. For both offences the defendant received an overall sentence of 4 years and 5 months with an overall non-parole period of 2 years and 11 months, to commence on 28 October 2011. The sentencing judge found that the motive for the threatening document offence was unclear, but that it likely included a concern that matters the defendant had disclosed in confidence could embarrass him and jeopardise his prospects for parole. His motive for the reckless wound offence was directed to officers in the unit generally and his intention was to slash the hand of whichever officer happened to pass him food.

28. In June 2019, the defendant was reclassified from A2 to a B classification, coinciding with his involvement in a program that provided a pathway to his participation in group programs. In October 2019, he commenced the Violent Offender Therapeutic Program (VOTP). His participation in the program was suspended in February 2020, due to intimidating behaviour by him towards a female staff member, and at his own request. In May 2020 there was another incident of intimidation of a female staff member and in June 2020 he refused a drug test. Consequently, he was reclassified back to A2.

An earlier CDO

30. The defendant did not qualify for parole. The full term of his sentence expired on 28 January 2021. On 14 December 2020, Campbell J acceded to an application by the plaintiff for an IDO, which was subsequently extended: State of NSW v SLD (Preliminary) [2020] NSWSC 1803. On 22 April 2021, his Honour made a CDO for a period of two years which, as noted, expires on 22 April 2023: State of NSW v SLD (Final) [2021] NSWSC 409. Accordingly, the defendant has been in continuous custody for 22 years, since he was aged 13.

31. In his preliminary and final judgments, Campbell J thoroughly considered the departmental and forensic material pertaining to the applicant’s pre-offence childhood and criminal behaviour; the circumstances of the index offence and the remarks on sentence of Wood CJ at CL; the defendant’s post-offence history in juvenile detention and in the adult prison system, including subsequent criminal offending; and more recent forensic psychological and psychiatric assessments of the defendant, particularly as to the level of risk that he posed of committing another serious offence if released into the community.

32. His Honour noted that one of the court-appointed forensic experts, Dr Richard Furst, forensic psychiatrist, in a report dated 20 February 2021, assessed the defendant as having a Severe Personality Disorder with a combination of antisocial, borderline narcissistic features. In Dr Furst’s opinion, the defendant posed a high risk of committing a further serious offence of a violent and/or sexual nature, consequent to his Antisocial Personality Disorder with a contribution from the XYY syndrome. He did not believe that the defendant could be safely managed in the community.

33. The other court-appointed expert, Dr Susan Pulman, a neuropsychologist and forensic psychologist, in a report dated 22 February 2021, concluded that the defendant had a Severe Personality Disorder of the antisocial type with psychopathic traits, including a lack of empathy. She assessed the defendant as being at a high risk of committing a further violent offence.

34. Mr Samuel Ardasinski, a psychologist with Corrective Services, found that the defendant satisfied the criteria for a Psychopathic Personality Disorder and Anti-Social Personality Disorder, although he was reluctant to diagnose the defendant as having 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. Mr Ardasinski accepted that he was something of “an outlier” from the other forensic experts in that respect.

35. Campbell J accepted the recommendation of Mr Ardasinski, Dr Furst and Dr Pulman that the defendant should resume the VOTP in spite of his resistance to it, although Dr Furst had reservations about its capacity to modify criminal behaviour. Mr Ardasinski was of the view that the program needed to take account of the defendant’s “unique characteristics” by being more flexible, which could be achieved by complementary sessions with an experienced clinician. Dr Pulman suggested that the defendant may require a one-on-one therapy program, although there were also benefits in group therapy. Campbell J stated, at [128]:

“… Dr Pulman was prepared to accept that if the content of the VOTP could be delivered in a one on one individualised basis that could be satisfactory. She accepted that the discussion in group therapy of the details of his particular offending could increase his risk of being harmed in prison. However, she said all inmates involved in group therapy discussion would be exposed to a similar risk.” (transcript references omitted)

36. In his final judgment, his Honour concluded that a CDO was necessary. His Honour explained:

“148   There are a number of reasons why I am of the view that the current risk is unacceptable if [the defendant] 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 [the defendant’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 [the defendant] 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 [the defendant] 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, [the defendant] 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 [the defendant] 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 [the defendant’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 [1] 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   [Fifthly], 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 [the defendant] 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 [the defendant’s] current clinical status. I repeat his Honour said (at [126] of the sentencing judgment …:

… 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 [the defendant’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.”

1. Dr Richard Parker is a senior psychologist who is employed by Corrective Services NSW.

Developments since the CDO was made

37. In a supplementary Risk Assessment Report dated 31 October 2022, Mr Ardasinski reported that the defendant had completed the VOTP, albeit with mixed success. He returned to the program on a one-on-one basis and engaged well with his VOTP therapist, although he reported finding it “useless”, saying he learned “absolutely nothing”. Mr Ardasinski concluded:

“Overall, the impression is gleaned that [the defendant] participated well enough in the sessions when questions were put to him, but his written task work and his capacity to accept and learn from feedback were quite limited.”

38. Nevertheless, Mr Ardasinski advised:

“Though his final VOTP Treatment Report does not present a glowing picture of [the defendant’s] level of engagement with the treatment material, I would consider that he has likely done as well as could be expected in treatment, given the empirical evidence that ASPD and psychopathy tend to be associated with heightened levels of 'cognitive inflexibility’ …

If people with such cognitive inflexibility, such as [the defendant], have difficulty changing a mental rule set, then he will likely have difficulty changing the rules by which he lives. The resultant implication is that he will more likely need external behavioural and environmental scaffolding strategies to assist a change in lifestyle habits (i.e., from antisocial attitudes learned largely in custodial settings, towards prosocial ways of living - which he has never used in the community as an adult previously), rather than relying purely on intrinsic change (e.g., via cognitive-behavioural strategies learned through treatment). To expect significant behavioural change within the context of individual treatment by a single male therapist, whilst housed in isolation from other inmates, is perhaps, at best, abundantly optimistic, and at worst, foolish and unfair.”

39. Mr Ardasinski referred to previous assessments of the defendant’s level of risk and did not undertake further assessments for his report, noting that it was unlikely to have changed significantly from his pre-CDO scores, so that in his opinion, the defendant remains in the highest category of risk for violence. He stated, extracting a quote from VOTP treatment notes:

“Overall, [the defendant] remains squarely in the high risk category for repeat violent offending, including serious violence. He also poses the potential to commit an act of sexual violence given his level of ‘social-sexual incompetence’ (Lee, Pattison, Jackson & Ward, 2001). [The defendant] has made a number of concerning comments within the treatment sessions which indicate he is fixated on losing his virginity with a woman as soon as possible post-release: ‘He thought it was counterproductive to deny him this and his words were to the effect of parole’s apparent desire to protect one sex worker while placing all other women at risk of his advances (and the potential devastation he would feel if his advances were rebuffed)’.

… ‘If he started disking someone – they have been rude or disrespected him – he starts ruminating on these perceived slights and can work himself up to a state where he is unable to restrain himself and lashes out. He feels paranoid that the person wishes harm and believes that he needs to act first. He also thought that if he let the slight go and didn’t stand up for himself, he would be perceived as weak, and the abuse/disrespect would continue and escalate.’” (emphases in original)

40. Mr Ardasinski recited a new set of possible risk scenarios that have been provided by the defendant’s treating VOTP therapist, with which he concurred:

“It is considered that [the defendant] may be violent while in the community for either reactive/spontaneous or planned/instrumental reasons. In the former, the scenario may involve an immediate reaction to a real or perceived slight or threat from person known to him or a stranger. It is not assumed that he would immediately resort to violence, with verbal aggression and threats are likely to precede any physical altercation. In the latter, revenge, retribution and retaliation have provided a strong motivation for his violence in the past. Fantasies of what he would like to do to his victim/opponent are likely to precede actions where he may ruminate for a period becoming increasingly hostile in his thoughts and agitated physically. Weapons may be accessed and used with a commensurate increase in damage to the victim. The probability of reacting spontaneously would be increased by aversive life events and an increase in negative mood states. Negative mood states are likely to remain high if he is not able to perform or access his preferred distractions, given his apparent limited ability to self-soothe.

[The defendant’s] risk for sexually unacceptable behaviour should also be considered given the observed level of sexual preoccupation, troubling attitudes to women and his history of inappropriate behaviour. He has indicated a strategy of propositioning as many [women] as he can in order to have sex. This may result in his advances being ill-timed and occurring in improper settings and contexts or pursuing a potential partner that may not be age appropriate.

As noted previously [the defendant] has experienced a lack of contact with adult women in social settings, this in conjunction with his apparent limited ability to perspective-take may result in him misinterpreting social cues, believing a woman was indicating an interest in him when she was merely being polite or courteous. Although he may simply allow his sexual attraction or desire to overwhelm his behavioural controls and continue his unwelcome advances against her implied or express objections. Further on a continuum of seriousness is that he persists in his advances and touches or otherwise physically interacts with a woman against her wishes.”

41. Mr Ardasinski considered the options of a CDO and ESO. He thought there would be “little therapeutic benefit” in another CDO. He said:

“[The defendant] would certainly benefit from a staged return to the community though, given his significant level of institutionalisation, however the challenges related to his security classification and designation as a ‘High Security’ Inmate are likely to persist into the future.”

42. And later:

“If [the defendant] were considered more suitable for a CDO than an ESO by virtue of his level of institutionalisation and needing to see him exposed to lesser-security environments, a novel means of achieving something similar to a semi-staged release from secure custodial settings could be to make him subject to [an ISO] which included a tapering of support and monitoring.”

Determination

43. As noted, the defendant does not contest that it would be open to the Court to conclude, pursuant to s 7(4) and having regard to the test in s 5B(d) of the Act, that it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. I am so satisfied. It would be open to the Court at a final hearing to conclude that the defendant’s progress in the VOTP has not significantly reduced his level of risk of recommitting a serious offence, although no doubt that determination will be assisted by reports to be furnished by forensic experts.

44. I note that The applicant has continued to give different explanations as to his motive for committing the index offence and deny that he sexually assaulted the girl or that he abducted her for that purpose. However, the various explanations he has provided over the years for having removed her clothing are, in my view, unconvincing.

45. I turn then to consider the proposed conditions of an ISO.

Proposed conditions of an ISO

46. I am satisfied that the proposed conditions of an ISO are necessary. The defendant’s obsessive determination to seek sexual experience when he is returned to the community, although expressed to be in a lawful manner, is concerning. Perhaps unsurprisingly, since he has been in custody since he was aged 13, the defendant’s understanding of interpersonal relationships generally and sexual relationships in particular is naïve. There is a risk that he will become impatient with the necessarily limited degree of freedom that he will initially have and in due course frustrated by rejection by women he might seek to engage at a personal intimate level.

47. The plaintiff has tendered recent Offender Integrated Management System (OIMS) reports that suggest that the defendant’s naivety also extends to other aspects of his expectations of what conditional release may bring. These include courses of education and pass-times that are quite unrealistic, at least in the initial stages of release. The process of reintegration into the community will be challenging for both the defendant, those who bear the responsibility of preparing him for engagement with others in the community and those charged with ensuring that he abides by conditions of the ISO. The defendant is unlikely to have the benefit of family support in the community. His mother resides interstate and he has no contact with his father, foster family or surviving siblings.

48. The recent OIMS notes disclose that a degree of preparation of the defendant for release to the preferred place of accommodation in the community, in anticipation of this Court making an ISO, is under way. The nature of that preparation appears, in my view, to be appropriate and necessary.

49. I am of the view that, in addition to the proposed conditions, the defendant should also be subject to “line of sight” supervision by at least one Corrective Services officer while outside the perimeter of his place of residence: see condition 10 of the conditions that are annexed to this judgment. While at first blush this condition may perhaps be thought to be unduly restrictive, it must be recalled that due to his prison classification, the defendant has not had the benefit of day-release, which would have familiarised him with the world outside the prison context. There is consequently a need to compensate for the absence of a gradual reintroduction of the defendant back into the community that would have occurred with a C classification. The condition is also appropriate in light of the significant risk posed by the defendant, and his history of sometimes resorting to selecting a random victim upon whom to take out his frustration against a class of persons using violence. The DSO may determine if, and when, the “line of sight” condition is relaxed and will have the authority to reimpose it, if required. The plaintiff has informed the Court that the restricted availability of departmental resources will likely limit the applicant to being in the broader community for a maximum of three hours per day and only on weekdays while line of sight supervision is required.

46. I note that in the event the defendant is released into the community, Corrective Services has approved ongoing psychology sessions with Dr Parker and possibly other clinicians. I also note that his conditional release into the community will aid efforts being made on his behalf to obtain services through the National Disability Insurance Scheme (the NDIS).

Orders

51. I make the following orders:

1. Order pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant be subject to an interim supervision order commencing on 17 April 2023 for a period of 28 days (“the interim supervision order”).

2. Order pursuant to s 11 of the Act that the defendant is for the period of the interim supervision order to comply with the conditions set out in the Schedule to these orders.

3. Order pursuant to s 7(4) of the Act:

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

   2. That the defendant attend those examinations.

4. Order pursuant to s 19 of the Act that the continuing detention order made by Campbell J on 22 April 2021 is varied to expire on 16 April 2023.

5. Order pursuant to s 13 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the orders relating to the defendant’s pseudonym made pursuant to the short minutes of order filed in Court on 23 March 2023 be revoked, so that the defendant will continue to be identified as SLD.

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

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SLD Conditions of Supervision (147688, pdf)

Endnote

Decision last updated: 19 March 2025