State of New South Wales v SLD (Preliminary)

[2020] NSWSC 1803

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

8 December 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 58

Catchwords:

HIGH RISK OFFENDERS – preliminary hearing –

interim orders - s 17 considerations – determining

whether to grant an interim detention order or an

interim supervision order – where defendant does not dispute the making of an interim supervision order - consideration of likely final order a question for the final hearing – whether the circumstances justify the making of an interim detention order

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW) ss 5A, 5C, 11, 13B,14, 15(4), 17(4),18A, 18C, 21, 24AB, 26

Child Protection (Offender Registration) Act 2000

Child Protection (Offenders Prohibition Orders) Act 2004

Cases Cited:

Attorney General of New South Wales v Tillman [2007] NSWSCA 119

R v SLD [2002] NSWSC 758

R v SLD [2003] NSWCCA 310

Category:

Procedural and other rulings

Parties:

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

Representation:

Counsel:
I. Fraser (Plaintiff)
E. Kerkyasharian (Defendant)
M. Higgins (Commissioner of Corrective Services)

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. On 28 January 2021, the sentence of imprisonment for 20 years passed upon the defendant (“SLD”) for the murder of a 3 year old child when SLD was just 13 years and 10 months of age expires. The plaintiff (“the State”) has by summons filed on 28 October 2020 (an amended summons was filed on 3 December 2020) applied for, by way of final relief, a Continuing Detention Order under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) of 2 years duration. In the alternative, the State seeks an Extended Supervision Order under the same legislation for a period of 5 years. All references to statute law below are to this Act, unless otherwise specified.

2. I am dealing with the State’s application for interim relief by way of Interim Detention Order (IDO), or alternatively Interim Supervision Order (ISO), commencing at the expiration of SLD’s sentence at midnight on 28 January 2021. Orders are also sought under s 15(4) for the examination of SLD by Court appointed experts, either psychiatrists or psychologists.

3. Mr I Fraser of Counsel appears for the State and Mr E Kerkyasharian of Counsel for SLD. Through his Counsel, SLD has made clear that he accepts that it is appropriate that the Court grant interim relief by way of an ISO, subject to the resolution of certain disputes about the conditions to be imposed under s 11. He resists an IDO.

4. I bear in mind that under s 21 proceedings under the Act are civil proceedings and, subject to the express terms of the Act, “are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings”. It follows that there is no issue between the parties that the statutory conditions which must be satisfied before the Supreme Court can grant relief of the nature sought by the State have been satisfied and that the real issue for determination relates to the exercise of the discretion conferred on the Court by s 18A as to the nature of the interim relief that should be granted.

Legal requirements

5. The power to make an IDO is conferred on this Court by s 18A which is in the following terms:

The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:

(a)  that the offender’s current custody (if any) will expire before the proceedings are determined, and

(b)  that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.

6. The conditions for making a continuing detention order are found in ss 5C, 13B and 14. Those in ss 5C and 13B may be said to be substantive and those in s 14, essentially procedural. SLD is serving a sentence under s 5C(a) and is a detained offender for the purpose of s 13B(1). This is because when the application was filed he was serving a sentence of imprisonment for a serious offence. That offence is murder, constituted by SLD engaging in conduct that caused the death of his victim with the intention of causing death. Murder is a serious indictable offence and constitutes a serious violence offence as defined by s 5A of the Act. As I have said, the application was filed on 28 October 2020, and therefore made not more than 9 months before the end of SLD’s sentence in compliance with s 13B(3).

7. To satisfy s 5C(d), the Supreme Court must be satisfied to a high degree of probability that SLD poses an unacceptable risk of committing another serious offence if not kept in detention, as opposed to under supervision, under the order. To be satisfied that the risk is unacceptable it is not necessary to determine that it is “more likely than not”. SLD accepts that he poses an unacceptable risk in the statutory sense if not kept under supervision.

8. There is no issue that, in accordance with s 14, the State’s application is supported by documentation addressing each of the mandatory considerations for the making of a Continuing Detention Order referred to in s 17(4), except for the report of the experts to be appointed by the Court under s 15(4). Specifically, the State has provided a risk assessment report dated 5 June 2020 by Samuel Ardasinski, a registered psychologist employed by Corrective Services NSW (CSNSW). Mr Ardasinski also provided a supplementary risk assessment report dated 16 November 2020 which is before me.

Determination of section 18A conditions

9. It is important to focus upon the requirements of s 18A. I am satisfied in accordance with s 18A(a) that SLD’s current custody will expire before the proceedings are finally determined which is unlikely to occur until after the examination of SLD by the experts appointed under s 15(4) and the provision of their reports. Given the time of year, this is unlikely to happen until late January or early February 2021. SLD’s sentence will have expired by then in all probability. I am satisfied that the matters alleged in the supporting documentation provided under s 14 would, if proved, justify the making of at least an ESO. Without more, these findings engage the Court’s power to make an IDO. I would go further and say, for reasons I will give, that the matters alleged in the documentation would justify, but perhaps not require nor compel, the making of a CDO.

10. Notwithstanding the finding I have made, and will explain, that the matters alleged would, if proved, justify a CDO, I acknowledge that it is not relevant for me to attempt to predict the final outcome of the proceedings. A unanimous Court of Appeal has said that it involves error for a judge at the preliminary stage to make a decision as to the appropriate interim order by reference to a view formed about the most likely final outcome of the proceedings: Attorney General of New South Wales v Tillman [2007] NSWSCA 119 at [100]. Their Honours made clear that the current s 18A(1)(b) requires the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a Continuing Detention Order or an Extended Supervision Order. If the matters alleged were capable of satisfying the statutory conditions for either form of order under the Act then the Court is required to exercise the “true discretion” conferred by s 18A to either refuse to make any interim order, or make an ISO, or make an IDO. My view about the “more likely outcome” is not relevant to the exercise of the s 18A discretion. As the Court said in Tillman at [99]:

Since [s 18A(1)(b)] is satisfied if either category of final order would be justified if the matters alleged in the documentation are proved, the Court is not required, at the stage of considering whether the discretionary power to make an interim detention order is engaged, to assess which category of final order is likely to be made at the end of the day. Because the word "may" in the closing portion of [s 18A(1)] imports a true discretion, it is open for the Court to refuse to make an interim detention order even if conditions (a) and (b) are satisfied. But it would not be a proper exercise of that discretion, in our opinion, for the Court to make an interim supervision order instead of interim detention order simply because the probabilities suggested that an extended supervision order was the more likely (final) candidate. That would involve reading words into the subsection that are not there. If (unlike the present case) there was only a claim for a continuing detention order, then the only options available to the Court under [s 18A(1)] would be to make an interim detention order or to dismiss the claim for interim relief.

I should say that since Tillman was decided the Act has been frequently amended. Section 17 now confers on the Supreme Court the power to determine an application for a CDO and includes an express power to make an ESO instead of an CDO in the exercise of the Court’s discretion, whether or not such an order is claimed: s 17(1)(a).

Section 17(4) – Mandatory considerations

11. It is convenient to deal with the relevant mandatory considerations arising under s 17(4). Before doing so, however, I remind myself that the paramount consideration informing the exercise of the Court’s power is “the safety of the community”: s 17(2).

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)(i). 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]).

13. 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].

14. 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.)

15. 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.

Section 17(4)(h) – Criminal History

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.

Section 17(4)(c) Psychiatric and Psychological Assessments

23. Three pre-offending psychological assessments are in evidence. They were conducted between the ages of 3 and 11. At the age of 3 a 6 month developmental delay was diagnosed, but intellectual disability was excluded. At the age of nearly 6, Peter Champion, Psychologist, referred to a chaotic cognitive style and a tendency to “extreme exaggeration and fabrication” (Exhibit BO-1; Tab 45 at p.582). The assessment at age 11 was undertaken after SLD had set fire to his school. The Psychologist noticed inappropriate sexual comments and angry outbursts (Exhibit BO-1; Tab 46). She diagnosed a “global delay” and an IQ of 74.

24. As I have already pointed out a large number of psychiatric, psychological and like assessments were carried out in relation to the proceedings on sentence. One psychiatrist, Dr Brent Waters, observed SLD was “strikingly lacking in emotion when describing the killing” (Exhibit BO-1; Tab 53 at p.655). He exhibited “gratuitous self-aggrandisement when talking about the death” (p.655). Testing undertaken by Karen Clarke was consistent with “mildly elevated” psycho-pathology findings (BO-1; Tab 55 at p.673).

25. Peter Champion who had conducted 2 of the pre-incident examinations examined him again after the index offence and recorded a “tendency to be grandiose and confused”. He also recorded disorganised thinking.

26. Further examinations were undertaken in relation to his offending in custody. Professor David Greenberg formed the impression that SLD appeared to have a lack of genuine remorse for his offending (Exhibit BO-1; Tab 60 at p.706). He regarded him as an unreliable historian subject to fabrication and guardedness. He was manipulative and sought to intimidate when challenged about his conduct or motivations. Professor Greenberg regarded the probable diagnosis as one of “severe personality disorder with antisocial and psychopathic features” (p.707). He also suspected an underlying paraphilic disorder.

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.

28. In 2010 Phillip Snoyman recommended SLD’s participation in the Violence Offenders Therapeutic Program (VOTP) and Danielle Matsuo recommended CUBIT.

29. Out of step with the general run of opinion, Natasha Ryan, Psychologist, in September 2011 considered the evidence supported schizotypal personality disorder and paranoid personality disorder (Exhibit BO1; Tab 71). No psychiatrist has suggested such a diagnosis, although Dr Olav Nielssen received a history of auditory hallucinations and delusional beliefs regarding an “invisible companion” (Exhibit BO1; Tab 72 at p.808). Dr Nielssen’s principal diagnosis, in common with other psychiatrists, was that of severe personality disorder, although he queried whether a psychotic illness may be emerging.

30. SLD was most recently examined at the request of CSNSW by Dr Gordon Elliott, Consultant Psychiatrist, whose report of 23 October 2020 is Annexure B to the affidavit of Briony O’Loughlin, solicitor, affirmed on 5 November 2020. 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).

31. 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.

32. 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).

33. 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.

Section 17(4)(c) - risk assessment report

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 Aradasinski 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).

37. Mr Aradasinki 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.

Section 17(4)(d1) Risk Management Report

38. A very detailed Risk Management Report dated 13 July 2020 has been prepared by Senior Community Corrections Officer, Terry O’Brien. Again, Mr O’Brien has conducted a comprehensive review of CSNSW’s file. Mr O’Brien recorded that as at the date of his review SLD remained classified as a B Medium Security Inmate who had been, until then, refused parole on 6 occasions. The most recent SORC report prepared in anticipation of a further parole review scheduled for 30 July 2020 also recommended the refusal of parole.

39. Mr O’Brien pointed out that SLD has never lived in the community as an adult and has never been subject to community supervision. He has not had any opportunity to function at liberty in the community and “his understanding of life outside … has been developed vicariously” (p.45). Mr O’Brien expressed the opinion that SLD “is wholly unequipped to manage the challenges inherent in adjusting to community life” (p.46).

40. A particular difficulty with SLD’s management in the community is the provision of suitable accommodation. Consideration had been given to his placement in CSNSW supported accommodation. His placement at Nanyarra has been declined on 3 occasions because SLD is subject to an “active alert” that he should not be alone with female staff and all Nanyarra staff are female. He is an untreated violent offender who has not completed VOTP. He has not shown that he can be managed in a normal environment without violence; and he has a history of assaulting staff. An assessment was made on 15 May 2020 that no risk management plan is capable of mitigating the identified risk that SLD presents. This is substantially because no suitable post-release accommodation arrangement had been identified “to effectively transition this complex offender back into the wider community” (Exhibit BO-1; Tab 2 at p.46). The only option apparently available is by way of temporary accommodation provided by Housing New South Wales, which was rejected as placing him and the wider community at risk. This difficulty is heightened by the risk that SLD will abscond if given too much leeway. His only “identified support” is his biological mother with whom he has reconnected in recent years and who lives in Melbourne. Ironically the reconnection was encouraged by CSNSW. Staff, particularly female staff, interactions with SLD are complex because of his record of threats, intimidation and sexually inappropriate approaches to female staff members.

41. That the problem of the provision of suitable accommodation is ongoing, and proving to be relatively intractable, is confirmed by the evidence of Ms Kelly Grabham in her affidavit affirmed on 4 December 2020. Ms Grabham has been a senior member of the Extended Supervision Order Team since March 2019. She details the recent efforts that have been made, so far unsuccessfully, to find suitable accommodation for SLD. I infer from Mr O’Brien’s report that, subject to the resolution of the difficulty with accommodation, if it can be resolved, he is of the view that SLD can be managed in the community, subject to very stringent conditions from the suite of conditions available to be imposed under s 11 including: ongoing supervision; field visits by departmental officers; restrictions on third party contacts; monitoring, including electronic monitoring; schedules of movements and curfews; the provision of ongoing psychological services; prohibitions, or at least restrictions, on contact with children; and non-association and place restrictions.

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

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

Section 17(4)(e1) available options

47. Given the evidence on the whole, it is difficult to see what treatment or rehabilitation can be provided in custody which will reduce the likelihood of SLD re-offending over time, other than, of course, the obvious restraint on a person who is incarcerated. But in this regard, it should not be overlooked that SLD has offended in a violent way in custody and he has committed breaches of prison discipline over the years. There was incident in mid-2020 where he threatened self-harm and then harm to officers so that he was required to be subdued with “the deployment of chemical weapons”. This illustrates that the risk he presents of offending is not limited to him being in the community. Moreover, the only available uncompleted part of the treatment program prescribed for him is the balance of the VOTP. It seems unlikely that he will either complete it, or benefit from it if he does.

48. The very stringent conditions of supervised release described by Mr O’Brien, provided that they are assiduously applied, do provide an option for reducing his 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.

Section 17(4)(e2) likelihood of compliance

49. The available evidence would justify a deal of pessimism about whether SLD would comply with the conditions of supervision given his inability to progress to lesser classifications in custody. Overall, it may be said his conduct is better now in custody than it was. But this is not, by any means, clear.

50. SLD has never been on conditional liberty at any time and therefore has not had the opportunity to demonstrate a level of compliance with that degree of trust.

51. The nature of the index offending means that SLD will be subject to obligations, if released, under the Child Protection (Offender Registration) Act 2000 (NSW) and possibly the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). However, again he has not been at liberty and there is no evidence of his level of compliance with such obligations. It seems unlikely to me that a prohibition order under the latter legislation would be sufficient to manage the risk of further offending he presents.

Section 17(4)(i) other information

52. Mr Kerkyasharian pointed to evidence consisting of a two line case note suggesting that the High Risk Offenders Assessment Committee established by s 24AB had not recommended to the Corrective Services Commissioner that a CDO not be applied for. He submitted that this was evidence that favoured an ISO, rather than an IDO. However, it is difficult to place much weight on a two-line case note. For the corporate opinion of the committee to be afforded weight, one would have to be in a position to consider the reasons for making that recommendation, which are not before me. I am aware that there is a dispute about the accuracy of the case note, but I have put that to one side given the ruling I made in relation to paragraphs 12 to 14 of Ms Grabham’s affidavit.

Unacceptable risk

53. I am satisfied that the material I have reviewed, if made good at the final hearing, would amply justify to the high degree of probability necessary, that SLD presents an unacceptable risk of committing a serious offence including, in particular, a serious violence offence. In this regard the tacit concession made on behalf of SLD was properly made. Moreover, I have no doubt - again there is no issue as I have stated - that the matters alleged in the supporting documentation I have reviewed would justify the making of a Extended Supervision Order. For the reasons explained in Tillman this finding of itself, would support the making of an Interim Detention Order. I am of the view that the nature of the index offending, the Anti-Social Personality Disorder with psychopathic features from which SLD suffers, the views of Wood CJ at CL, SLD’s inability to make any real progress in custody over 20 years, the assessment of the nature of the risk offered by Mr Ardasinski, SLD’s record of offending in custody (which seems to be slowly improving) and the absence of suitable stable accommodation taken together would justify the making of a Continuing Detention Order. This is especially so when one bears in mind the paramount purpose of community safety.

54. I appreciate that s 18A confers a true discretion on the Court. I also bear in mind that it would not be a proper exercise of that discretion for me to make an ISO instead of an IDO “simply because the probabilities suggest” that an ESO is the more likely final order, especially if the accommodation issues can be satisfactorily addressed.

55. I have not lost sight, when it comes to exercising my discretion, that upon the expiration of his sentence SLD has a presumptive right to be at liberty. Nor have I overlooked the aspect of that consideration emphasised by Mr Kerkyasharian that there is much to be said for the consideration that SLD, who, I stress, has been in custody since early adolescence, should be given an opportunity to demonstrate his ability to comply with even stringent supervisory conditions.

56. On the other hand, there is also much to be said in the present circumstances of preserving the status quo until the opinions of the experts, whom I am required to appoint by the terms of s 15(4), and other evidence that the parties may wish to introduce, are available for consideration at the final hearing. In particular, I am of the view that the question of accommodation needs to be resolved. In this regard there is force in Mr Kerkyasharian’s submission that Nanyarra COSP and the ISC at Campbelltown are CSNSW facilities and it cannot be beyond the wit or resources of the Commissioner to make suitable provision to accommodate SLD while reducing the perceived risk (which I accept is real enough) to female staff. I fully accept that the Commissioner has a duty of care to his employees, but the accommodation issue cannot indefinitely deprive SLD of his right to be at liberty, even if under supervision for the protection of the community.

57. Bearing all of these conflicting considerations in mind, I am persuaded by the argument of Mr Fraser that at least when it comes to making an interim order that the protection of the community favours risk aversion and in that regard I am of the view, for all of the reasons I have expressed, that I should make an Interim Detention Order as sought. It follows from my judgment that this decision says nothing at all by way of forecast, prediction or otherwise about the likely outcome of the case following a final hearing.

58. In view of this decision, it is unnecessary and inappropriate to address the conditions upon which an ISO would have been made. My orders are:

1. Under ss 18A and 18C Crimes (High Risk Offenders) Act 2006 (NSW), SLD is subject to an Interim Detention Order for a period of 28 days commencing after the expiration of his current sentence of imprisonment on 28 January 2021;

2. Under s 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. An order pursuant to s 15(4) of the said Act:

1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such experts) to conduct separate psychiatric or psychological examinations of the defendant, as the case may be and to furnish reports to the Court on the results of those examinations as soon as may be reasonably practicable after the completion of those examinations; and

2. Directing the defendant to attend for and submit to the examinations appointed pursuant to Order 3(a) either in person at the correctional centre at which he is for the time being held or by audio visual link in accordance with such regime as may be currently in force for the management of the Covid-19 pandemic;

4. List the matter for call-over or directions before Justice Bellew on a date to be arranged with his Honour’s associate after 1 February 2021;

5. Order that access to the Court’s file in respect of any document shall not be granted to a non-party without 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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Amendments

14 December 2020 - Mr Ardasinki amended to Mr Ardasinski

Decision last updated: 14 December 2020