State of New South Wales v Sotheren (Preliminary)

[2018] NSWSC 754

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754
Hearing dates:	16 May 2018
Date of orders:	25 May 2018
Decision date:	25 May 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	(a) An order is made pursuant to s.7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) appointing two qualified psychiatrists to conduct separate psychiatric 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. (b) An order is made directing the Defendant to attend those examinations. (c) An order is made pursuant to ss.10A and 10C(1) of the Act, that the Defendant be subject to an interim supervision order for a period of 28 days commencing today, 25 May 2018, and expiring on 22 June 2018, unless renewed on further application by the Plaintiff (d) An order is made pursuant to s.11 of the Act, directing that the Defendant comply with the conditions of the interim supervision order which are set out in the attached Schedule.
Catchwords:	HIGH RISK OFFENDER – serious violent offender – preliminary hearing – application for interim supervision order and for examination by court-appointed psychiatrists –“serious violence offence” of manslaughter in 1999 – multiple offences of robbery in 1990s and 1999 – offence of aggravated robbery inflicting grievous bodily harm in 2012 – 1999 and 2012 offences committed whilst on parole – offences involve explosive violence against strangers in public places while under influence of illicit drugs – relevance to risk assessment of offences of violence which are not “serious violent offences” – interim supervision order made together with order for examination by two psychiatrists
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 Crimes (Domestic and Personal Violence) Act 2007 Crimes (High Risk Offenders) Act 2006 Crimes Act 1900 Firearms Act 1996 Mental Health (Forensic Provisions) Act 1990 Weapons Prohibition Act 1998
Cases Cited:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Decision Restricted [2016] NSWSC 1052 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Sotheren [2001] NSWSC 214 R v Sotheren [2001] NSWCCA 425 R v Sotheren [2011] NSWCCA 68 State of New South Wales v Brookes [2008] NSWSC 150 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Thurston [2017] NSWSC 1760 State of New South Wales v TT (Final) [2018] NSWSC 358 State of New South Wales v Windle [2016] NSWSC 1816 Veen v The Queen (No. 2) (1998) 164 CLR 465; [1988] HCA 14 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Darren James Sotheren (Defendant)
Representation:	Counsel: Mr C Lenehan (Plaintiff) Ms A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/117803
Publication restriction:	---

Judgment

1. JOHNSON J: By Further Amended Summons filed on 16 May 2018, the Plaintiff, State of New South Wales, seeks orders with respect to the Defendant, Darren James Sotheren, pursuant to the Crimes (High Risk Offenders) Act 2006 (“HRO Act”).

2. The Summons seeks, by way of preliminary orders:

1. an order appointing two qualified psychiatrists to conduct separate psychiatric 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 together with an order directing the Defendant to attend those examinations;

2. an order pursuant to s.10A of the HRO Act that the Defendant be subject to an interim supervision order (“ISO”) for a period of 28 days from 16 May 2018 (or the date when the Court makes orders following the preliminary hearing);

3. an order pursuant to s.11 of the HRO Act directing that the Defendant, for the period of the ISO, comply with the conditions set out in a schedule to the Further Amended Summons.

3. The Further Amended Summons also seeks (in paragraph 3) that the Defendant be subject to an extended supervision order (“ESO”) for a period of five years and that he comply with the conditions of the ESO as set out in the Schedule to the Further Amended Summons.

The Preliminary Hearing

4. A preliminary hearing under s.7(3) of the HRO Act proceeded before me on 16 May 2018. The Plaintiff was represented by Mr Lenehan of counsel and the Defendant was represented by Ms Cook of counsel.

5. The Plaintiff relied upon the following evidence:

1. the affidavit of Paul Ross Armstrong sworn 13 April 2018;

2. Exhibit PA1, comprising three folders of documents referred to in Mr Armstrong’s affidavit of 13 April 2018;

3. a further affidavit of Paul Ross Armstrong sworn 18 April 2018;

4. a further affidavit of Paul Ross Armstrong sworn 2 May 2018;

5. the affidavit of Janelle Farroway, High Risk Offender Applications and Operational Governance Officer, Corrective Services NSW, affirmed 2 May 2018;

6. the affidavit of Michelle O’Brien, Unit Leader with Corrective Services NSW, affirmed 2 May 2018.

6. The Court was assisted by helpful written submissions prepared by counsel for each party in advance of the hearing. In one significant respect, the argument advanced by the Plaintiff at the preliminary hearing differed from that advanced in the written submissions prepared prior to the hearing.

Relevant Provisions in the HRO Act

7. Section 7(3)-(5) of the HRO Act provide for a preliminary hearing:

“7    Pre-trial procedures

…

(3)    A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(4)    If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a)    appointing:

(i)    2 qualified psychiatrists, or

(ii)    2 registered psychologists, or

(iii)    1 qualified psychiatrist and 1 registered psychologist, or

(iv)    2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.

(5)    If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.”

8. For the purpose of undertaking the task under s.7(3)-(5), it is necessary for the Court to consider the matters contained in s.9 of the HRO Act:

“9    Determination of application for extended supervision order

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

(a) by making an extended supervision order, or

(b) by dismissing the application.

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

(2A)    (Repealed)

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

(a)    (Repealed)

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

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

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

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

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

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

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

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

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

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

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

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

(4) (Repealed).”

9. It is also necessary for the Court to consider the requirements contained in s.5B of the HRO Act:

“5B    Making of extended supervision orders—unacceptable risk

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

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

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

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

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

10. Also relevant to the issues arising at the preliminary hearing are the threshold requirements contained in s.5I of the HRO Act:

“5I    Application for extended supervision order

(1)    An application for an extended supervision order may be made only in respect of a supervised offender.

(2)    A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision):

(a)    while serving a sentence of imprisonment:

(i)    for a serious offence, or

(ii)    for an offence of a sexual nature, or

(iii)    for an offence under section 12, or

(iv)    for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or

(b)    under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

(3)    A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.”

11. In this case, the Plaintiff contends that the relevant risk relates to the commission of a further “serious offence” in the form of a “serious violence offence” in s.5A of the HRO Act which relevantly provides:

“5A    Definition of ‘serious violence offence’

(1)    For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person:

(a)    engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(b)    attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).

(2)    An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

(2A)    A reference in subsection (1) (a) to:

(a)    conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and

(b)    conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and

(c)    conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.

…”

Issues at the Preliminary Hearing

12. There was no issue that the Defendant was an “offender” for the purposes of ss.4A and 5B(b) of the HRO Act as he had been convicted of manslaughter, an offence falling within the definition of “serious offence” in ss.4 and 5A(1)(a) of the HRO Act.

13. Initially, there was a dispute as to whether the Defendant fell within the definition of “supervised offender” in s.5I(2). However, at the preliminary hearing, counsel for the Defendant conceded that the Defendant fell within the terms of s.5I(2)(a)(iv) of the HRO Act in that he was serving (by way of parole) a sentence of imprisonment for an offence of aggravated robbery inflicting grievous bodily harm under s.96 Crimes Act 1900 which was being served partly consecutively upon a sentence of imprisonment for manslaughter, with that offence falling within the definition of “a serious offence” for the purpose of s.5I(2)(a)(iv) of the HRO Act.

14. It was conceded for the Defendant that other threshold requirements had been satisfied but that, when regard was had to the evidence, it was submitted that the Court should not be satisfied to the prima facie level that the matters alleged in the supporting documentation would justify the making of an ESO so that the Court should dismiss the application at the conclusion of the preliminary hearing: s.7(5) HRO Act.

The Foundational Offences

15. On 10 May 2013, the Defendant was sentenced by his Honour Judge Craigie SC at the Parramatta District Court for an offence of aggravated robbery inflicting grievous bodily harm under s.96 Crimes Act 1900 for which the maximum penalty was 25 years’ imprisonment. The Defendant was sentenced to imprisonment for six years, comprising a non-parole period of three years and six months commencing on 1 June 2012 and expiring on 30 November 2015 with a balance of term of two years and six months commencing on 1 December 2015 and expiring on 31 May 2018.

16. The Defendant had been resentenced on a Crown appeal to the Court of Criminal Appeal on 24 October 2001 with respect to a number of serious offences: R v Sotheren [2001] NSWCCA 425. These offences included manslaughter, two counts of aggravated robbery inflicting grievous bodily harm and three counts of aggravated robbery inflicting actual bodily harm. In resentencing the Defendant, the Court of Criminal Appeal specified for the offence of manslaughter, a sentence of imprisonment for 10 years commencing on 7 September 2002 and expiring on 6 September 2012, with that sentence being partly concurrent and partly cumulative upon sentences imposed on the other counts. A non-parole period of six years was specified for the manslaughter offence with that period to expire on 6 September 2008.

17. Accordingly, the sentence of imprisonment for the s.96 Crimes Act 1900 offence commenced on 1 June 2012, at a time when the sentence of imprisonment for the manslaughter offence was still on foot, with that sentence to expire on 6 September 2012.

18. It was for this reason that the Plaintiff submitted and the Defendant accepted that he fell within the definition of “supervised offender” in s.5I(2)(a)(iv) HRO Act.

19. If this provision had not applied to the Defendant, Ms Cook submitted that the Offender could not otherwise establish that this threshold requirement was satisfied as an offence under s.96 Crimes Act 1900 does not fall within the definition of “serious violence offence” in s.5A(1) HRO Act. In this regard, reliance was placed upon the judgment of Button J in Decision Restricted [2016] NSWSC 1052. Mr Lenehan made a formal submission that that decision was wrong. In circumstances where it is accepted that the Defendant falls within another part of the definition of “supervised offender”, it is not necessary for the Court to consider and determine this contentious issue.

Some Relevant Legal Principles

20. The unacceptable risk test in s.5B(d) of the HRO Act requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at 652 [82]. The objects of the HRO Act should be kept in mind when undertaking this evaluative task: Lynn v State of New South Wales at 648 [55]. Those objects are contained in s.3 which states:

“3    Objects of Act

(1)    The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

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

21. The Court must be satisfied to a high degree of probability that the Defendant poses an “unacceptable risk” of committing a further serious offence if not kept under supervision under an ESO. The standard of proof lies between the ordinary civil standard and the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

22. The right of a person to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales at 645 [44], 648 [55]-[58], 660-661 [128] and 665 [148].

23. At a preliminary hearing, it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiff’s case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].

24. If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an ESO and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127].

21. Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149].

Consideration of Statutory Factors Under s.9(3) HRO Act

26. It is appropriate now to consider the evidence under the different headings contained in s.9(3) of the HRO Act which will be taken in a different order to that laid down in the statute.

Section 9(3)(h) - The Defendant’s Criminal History and the Pattern of Offending Behaviour Disclosed by that History

27. The Defendant was born in January 1972. As will be seen, the Defendant has a most unfortunate personal history. There were difficulties with his mother when he was very young and he had no knowledge of his biological father. He displayed problematic behaviour from a young age and was removed from his mother’s care, becoming a ward of the State from the age of eight years. The Defendant suffered terrible physical and sexual abuse as a boy and developed a pattern of self-harm in times of stress.

28. As a teenager, the Defendant mixed with negative influences whilst in care and developed a use of illicit drugs. He went on to commit a range of offences and has spent significant periods in custody. After release from custody, he struggled to adapt to a lawful community life.

29. Between 1990 and 1993, the Defendant committed several robbery offences in New South Wales and assault and other offences in Queensland and the Northern Territory. It is not necessary to recite the details of these offences for the purpose of this judgment arising from a preliminary hearing.

30. On 18 April 1993, the Defendant was arrested for the various New South Wales offences committed between 1990 and 1993. On 1 November 1993, the Defendant was sentenced by his Honour Judge Court QC at the Parramatta District Court to a total term of imprisonment of seven years and one month with a non-parole period of two years commencing on 18 April 1993.

31. The Defendant sought leave to appeal against the severity of sentences imposed on 1 November 1993 but, on 8 June 1994, a Notice of Abandonment of the Appeal was filed and the Court of Criminal Appeal ordered that the whole of the time served was to count.

32. On 9 and 10 May 1999, the Defendant committed offences of manslaughter, robbery inflicting grievous bodily harm (two counts) and aggravated robbery (three counts). The Defendant had been charged with murder, but the Crown accepted a plea of guilty to manslaughter in full discharge of the indictment. The Defendant pleaded guilty to the other offences as well. The Defendant was sentenced by Dowd J for these offences on 15 June 2001: R v Sotheren [2001] NSWSC 214.

33. There was a successful Crown appeal with respect to these sentences and the Defendant was resentenced by the Court of Criminal Appeal on 24 October 2001: R v Sotheren [2001] NSWCCA 425.

34. Given the significance of these offences to the present application, it is appropriate to refer to them in some detail. Between 9.45 pm on 9 May 1999 and 4.45 am on 10 May 1999, the Defendant attacked five different victims. He punched each victim in the face or about the head and stole their wallets.

35. The first victim was 55 years old. The Defendant punched the victim from behind and violently to the head, fracturing the victim’s skull, nose and eye socket. The Defendant struck the victim using the victim’s umbrella and stole $10.00 cash from the victim’s wallet.

36. The second victim was attacked whilst waiting by his car to pick up his wife from work. The Defendant struck the victim to the head before stomping on it. The victim’s wallet contained $1,900.00 in cash which was stolen together with the victim’s mobile phone. This victim died from severe brain injuries giving rise to the manslaughter offence.

37. The third victim was struck from behind and violently about the head with the Defendant then taking the victim’s wallet. The victim suffered lacerations and bruising to the facial area. There was no money in the victim’s wallet.

38. The Defendant struck the fourth victim’s head using a rock. The victim fell to the ground and the Defendant continued to attack the victim before taking his wallet which contained $10.00. The victim suffered a fracture to his right cheek together with bruising and lacerations.

39. The Defendant repeatedly struck the head of the fifth victim and wrestled with him. The Defendant stole $800.00 cash from this victim who suffered a fractured pallet and bruising to his facial area.

40. On 12 May 1999, the Defendant fled to Melbourne. On 4 June 1999, he was arrested in Melbourne for other offences and, on 11 June 1999, he was extradited to Sydney for the 1999 offences.

41. It is appropriate to refer to parts of the judgment of the Court of Criminal Appeal (Beazley JA, Wood CJ at CL and Carruthers AJ agreeing) with respect to these offences.

42. Beazley JA referred to the Defendant’s prior criminal history noting offences additional to those mentioned above. Her Honour said at [21]:

“The respondent has a serious criminal record dating back to 1987, including a number of stealing charges and a number of assault charges. Of the more recent serious offences, the respondent had been convicted at the District Court in Sydney on 1 November 1993 on five charges, including robbery with striking, armed robbery with wounding, robbery with wounding and steal a conveyance. He was sentenced in respect of the armed robbery with wounding and robbery with wounding charges to a minimum term of 3 years to date from 18 May 1995, with an additional term of 2 years. He had been given slightly lesser sentences for the other charges. Subsequent to the commission of the offences with which this Court is concerned, the respondent was convicted of robbery at the Parramatta District Court on 21 June 2000 and sentenced to a term of imprisonment of 3 years to date from 7 June 1999, with a non-parole period with conditions attached of 15 months.”

43. After referring to the well-known passage in Veen v The Queen (No. 2) (1998) 164 CLR 465; [1988] HCA 14 at 477, Beazley JA referred to the offences in the following way (at [23]):

“There is no way in which these offences could be described as falling into the category of ‘uncharacteristic aberration’. On the contrary, serious and violent crime has been the characteristic behaviour of the respondent for over a decade. The significance of this criminal history for the proper sentencing process required in this matter is even more apparent when considered with the next matter raised by the Crown, namely the fact that the subject offences were committed whilst the respondent was on parole during the additional term imposed on 1 November 1993, to which I have referred above.”

44. Beazley JA described the attacks upon three of the victims as being “particularly brutal” (at [26]).

45. When considering the application of the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 with respect to armed robbery offences, Beazley JA said at [47]:

“Some of those factors are, of course, not directly applicable here because of the absence of a weapon, although the respondent fashioned his own weapon in counts 2 and 4 – an umbrella and a rock respectively. The latter could quite easily have caused a fatal blow. But, in any event, the circumstances of these offences and the personal circumstances of the respondent, even taking into account the very real subjective personal matters to which his Honour referred, are far more serious than those comprised in the guideline profile. In particular, the offender was not young, in the sense used in Henry, and more significantly, has a serious criminal record involving robbery and violence. However the offences in this case are viewed, and notwithstanding the subjective circumstances which was appropriate for his Honour to take into account, the sentences imposed were overwhelmingly inadequate.”

46. In making a finding of special circumstances on sentence, Beazley JA said at [56]:

“I consider that there are special circumstances in this case. In the sentences which I propose and the manner in which I consider they should be structured, the respondent will be sentenced to a lengthy period of imprisonment. The respondent has significant personal and behavioural problems, including his drug addiction and his aggression, for which he clearly needs treatment. The recent evidence of Dr Daniels indicates that for the first time over a long period, the respondent has gained some insight to his problems and behaviour and that there are now prospects of rehabilitation which were not apparent previously. Those prospects should both be acknowledged and accommodated. That is appropriately done in this case by imposing a sentence of imprisonment which has proper regard for the gravity of the criminal behaviour exhibited by the respondent in the charges for which he has been convicted, but by determining a non-parole period which is less than the three quarters of the term of the sentence and by imposing conditions on his release on parole.”

47. On 6 September 2008, the Defendant was released to parole for the 1999 offences for which he had been sentenced by the Court of Criminal Appeal.

48. On 27 November 2008, the Defendant committed an offence of being in a dwelling, stealing and breaking out contrary to s.112(1)(b) Crimes Act 1900. His parole for the 1999 offences was revoked. The Defendant was sentenced to a term of imprisonment for the s.112(1)(b) offence, with that sentence being reduced on appeal to the Court of Criminal Appeal: R v Sotheren [2011] NSWCCA 68. On 11 April 2011, the Court of Criminal Appeal sentenced the Defendant for this offence to imprisonment for three years and nine months, comprising a non-parole period of two years commencing on 1 January 2010 and expiring on 31 December 2011 with a balance of term of one year and nine months expiring on 30 September 2013.

49. On 4 January 2012, the Defendant was released on parole.

50. Whilst on parole on 1 March 2012, the Defendant committed the offence of aggravated robbery inflicting grievous bodily harm contrary to s.96 Crimes Act 1900, for which the maximum penalty is 25 years’ imprisonment. Given the significance of this offence to the present application, detailed reference will be made to it and the sentence imposed for the offence.

51. At about 11.20 pm on Thursday, 1 March 2012, the victim was talking on his mobile phone, standing on the footpath in Burwood. The Defendant walked past the victim and stopped nearby. The victim continued talking on his mobile phone for about 15 minutes, frequently glancing towards the Defendant who continued to stand nearby.

52. At 11.35 pm, the victim was about to end his telephone conversation and walk up the stairs into a unit complex. He observed the Defendant sitting on the stairs. The victim went to walk past the Defendant and suddenly felt a blow to the left side of his face which caused him to become dazed and confused. The victim fell to the ground and the Defendant then approached him and kicked him twice to the upper body.

53. The victim attempted to stand and placed himself some distance away from the Defendant. During this time, the victim was screaming and asking the Defendant why he had struck him. The Defendant grabbed the victim with both hands and dragged him about five-to-10 metres along Shaftesbury Road. He and the victim stopped at the garage door of nearby premises. The Defendant removed his hands from the victim’s shoulders at that point and grabbed the back of the victim’s head and attempted to strike it on the garage door. The victim placed his hand to his face to deflect the impact of the collision with the door in an effort to protect his face.

54. Moments later, during the continuing struggle, the Defendant and the victim both fell to the ground. At that point, the Defendant attempted to knee the victim in the head and he grabbed the victim’s shoulder bag and the strap of the bag broke. The Defendant then began to walk along Shaftesbury Road with the bag with the victim holding on to the broken strap and attempting to remove it from the Defendant. The victim grabbed the back of the Defendant’s shirt and, in response, the Defendant removed his shirt and threw it onto the ground.

55. At this moment, a person was driving past and observed the incident. He stopped to assist the victim and a number of residents across the street also commenced to approach the victim and the Defendant. At this point, the Defendant dropped the bag and continued walking along Shaftesbury Avenue and into Belmore Street. A number of witnesses followed the Defendant who was then seen entering a unit complex in Belmore Street.

56. The victim and witness walked to the police station and an ambulance attended and conveyed the victim to Canterbury Hospital. As a result of the attack, the victim sustained severe swelling to the left eye and upper cheek, a five-centimetre deep laceration to his scalp and cuts and grazes to his arms and legs. Surgery was performed upon the victim on 10 March 2012 to treat a left orbital floor blowout fracture of his face in the region of his left eye and a metal plate was inserted.

57. After the Defendant had left the scene of the crime, police were called and conducted a perimeter search. The Defendant was seen in a property in Belmore Street and he ran from police and jumped over a gate. He was arrested at 12.20 am on 2 March 2012. The Defendant told police that he had not slept for five days as a result of taking large quantities of the drug “Ice”. He also informed police he consumed a quantity of “Ice” the night before about two hours before the offence.

58. As mentioned earlier, the Defendant was sentenced for this offence on 10 May 2013 in the Parramatta District Court by his Honour Judge Craigie SC.

59. It is this sentence which remains current and will not expire by effluxion of time until 31 May 2018. It is appropriate to refer to parts of the sentencing remarks.

60. Judge Craigie SC said with respect to the offence (ROS4):

“This offence is to be assessed as a particularly brutal one, constituted by a persistent course of violence with an initial blow, kicks and a deliberate impacting of the victim's face against a garage door. In addition to injuries by way of abrasions to the left arm and both legs, which are apparent in the photographs tendered, there is also a laceration to the victim's head which is also observable on a photograph.”

61. The sentencing Judge said a little later (ROS5):

“It is important to note that the matter as charged is in fact constituted by a continuing offence that had started with a single, albeit itself, quite severe blow. That blow was sufficient to knock the victim to the roadway. It is the case that even more grave outcomes could well have resulted from the then ongoing assault upon the victim, who was also dragged some 5 to 10 metres whilst on the ground. The kicking of the victim and the deliberate impacting of his face with the garage door are further significant aspects of the objective criminality and are not to be overlooked.

It is those matters principally, that lead to my finding, that the objective aspects of this offence are such as to constitute it as one of persistent, considerable and utterly gratuitous violence. The resulting injuries were not as grave as an assault of such nature may well have caused; this was fortunate as the offender's actions indicate a high degree of reckless disregard for the potential consequences of his actions in an attack that went well beyond what might have been entailed in simply procuring the victim's submission.”

62. The sentencing Judge noted that the Defendant was subject to parole at the time of this offence. His Honour referred to the Defendant’s criminal history in the following way (ROS8):

“The offender's criminal record in this case must be a prominent concern for any sentencing Court, given the frequency, persistent nature and severity of offences involving violence, including some violence of the same kind and worse than that exampled in the present matter. It is no trite statement to say that the offender's criminal record is indeed an appalling one, and I say that putting aside any close examination of a fairly extensive juvenile record. There is a succession of significant matters scattered across more than 20 years of the offender's history.”

63. His Honour referred to the Defendant’s 1999 offences (ROS9):

“In this lamentable history, the sentencing outcome of the most grave nature relates to the matters that constitute a most prominent and tragic landmark in the 2001 sentences for aggravated robbery, aggravated wounding and manslaughter. These matters arose from six attacks upon taxi drivers committed over a twenty-four hour period in 1999. They were dealt with before the Supreme Court. I infer because the manslaughter had been initially charged as murder. The resulting sentences were subject to a successful Crown appeal.”

64. The sentencing Judge noted that the Defendant’s criminal record attracted the factors referred by the High Court of Australia in Veen v The Queen (No. 2) at 477 and observed that the Court of Criminal Appeal in 2001 had referred (at [22]) to the same passage from Veen v The Queen (No. 2). His Honour said with respect to the 1999 offences (ROS10):

“In those offences, the facts of the robberies also had in common with the present matter, although to a greater degree, facts that were most certainly not at the lower end of the scale in objective seriousness. The offender then was already a person with a record so serious as to activate the Veen (No 2) considerations. Also, as at present, he was on parole.”

65. The sentencing Judge recited, in some detail, the psychiatric and psychological reports in evidence at the sentencing hearing concerning the Defendant, together with a report of the Probation and Parole Service. The sentencing Judge recounted his history of disadvantage and abuse in the following way (ROS6-8):

“The offender's personal circumstances are a sadly not uncommon instance among many tragic variants of intergenerational disadvantage that is revealed before these Courts involving many persons of Aboriginal heritage, and indeed, others who have been wards of the State. This is now, of course, the focus of national attention and it has been accepted that much harm befell many children in State care or State sanctioned care in former times. In many cases, this entailed the worst kind of physical and sexual abuse.

In this offender's case, his well documented history is of a person of Aboriginal heritage. His parents separated when he was an infant. His mother found that she could not manage him, and at the age of seven, he was made a State ward. He is reported in the documents before me to have developed a range of aggressive, disturbing and antisocial behaviours, including aggressive outbursts of the nature that caused his mother to put him in care. As a child of tender years, and in the circumstances, of course, none of this was likely to be sheeted home to him as a matter of fault, and it would be inappropriate to do so.

At an early stage, it is recorded in 1979, and again quoted in a recent parole report by Ms Theresa Ross of 21 February 2013, that he had in that childhood report, been described as ‘a seriously, emotionally disturbed child’. This state was linked to a history well established then of physical and possible sexual abuse by associates of his mother. From that point, the offender spent the next eleven years in either foster care, community or remand care. The offender has given evidence before me, and previously reported experiences of further abuse upon him during these years when he was in care of one kind or another, and unfortunately, abuse occurred often at the hands of those in whose care he had been placed.

Unsurprisingly, the offender's education was disrupted, in part due to his difficult behaviour and his formal education did not continue beyond the age of thirteen or fourteen.

He has also moved around the country to a considerable extent, both in his younger days and as an adult. This is unfortunately evidenced also by an extensive criminal history in New South Wales, Queensland and the Northern Territory.

He apparently re-established some contact with his mother and stepfather in the 1990s and they were in reasonably frequent contact with him, until that part of the family moved to North Queensland. It is fair to say that the offender has interspersed some very significant periods in custody as a result of a succession of serious offences including those of violence, with some periods of quite stable and varied employment.”

66. The sentencing Judge summarised the variety of factors pertinent to sentence in the following way (ROS24-26):

“In summary, I have taken into account the circumstances of aggravation as I have outlined them, in particular the commission of an offence whilst at conditional liberty. I have also taken into account the criminal record as a matter illuminating the current offending, whilst not to be conflated with the assessment of objective criminality in the particular offence.

The record also bears upon questions of rehabilitation which are particularly acute issues in an offender of whom it may be reasonably said that he has already undergone a degree of institutionalisation. One certainly cannot gainsay the conclusion that the offender is a person in whom the Veen (No 2) considerations require very careful weighing. It is the case that he did have the most dreadful start in life, but it is also the case that he is an adult whose pattern of offending fortifies the requirements for responsible protection of the community to be included as one aspect of an appropriate sentencing outcome.

Whilst episodes of offending in a person such as the offender presents raises further implications of continued defiance of the law, I do not find the matter to be quite that simple. He is a person in whom the foundations of stable living have never really been laid down. I accept that the psychiatric history shows a number of features that spring from this reality. Unfortunately the dominant feature now is one over which the offender must exercise some control himself, if there is to be any realistic prospect of lowering his risk of reoffending. That matter relates to the frequency with which, when encountering problems, he resorts to the use of illicit drugs.

In his case, the use of amphetamines, and reportedly as a new factor, that of methamphetamine, brings forth a proven propensity to offend with a particular degree of seriousness that in one case has involved a lethal degree of violence. Although the incidence to which I refer is in the past and an aspect of the record that it is not permissible to use to aggravate the offender's present offence, it cannot be offend, overlooked, nor the other offences, as features signalling the degree of severity required to meet what must be accepted as a proven propensity for violent crime when affected by the very illicit drugs that the offender is prone to take whether self medicating a tendency to depression or otherwise.”

67. His Honour explained his finding of special circumstances in the following way (ROS28):

“By reasons of the matters underlying the offender's conduct, and noting the comments of Ms Ross from the Probation and Parole report as to the need for close supervision, there is a strong requirement that the offender be supervised to an extensive degree and for a considerable period upon his eventual release. Accordingly I will find special circumstances to vary the ratio that would otherwise apply as between the non parole period and the overall sentence.”

68. Following the Defendant’s release on parole, he was charged on 28 January 2017 with an offence of intimidating another person with the intention of causing fear of physical or mental harm contrary to s.13 Crimes (Domestic and Personal Violence) Act 2007. On 31 March 2017, the Defendant was dealt with at the Wollongong Local Court under s.32 Mental Health (Forensic Provisions) Act 1990. This charge led to the revocation of the Defendant’s parole.

69. The Defendant was relatively well behaved whilst in custody until his recent release on parole on 9 April 2018. Although he has been sanctioned on a number of occasions over the years, there have been only two charges in the last seven years for damaging property.

Section 9(3)(f) - Level of Defendant’s Compliance with Supervisory Obligations

70. The Defendant has been on parole, from time to time, throughout his criminal history. The Defendant committed offences whilst on parole in 1999, 2008, 2012 and 2017, including the very serious group of offences in 1999 and the most recent serious offence committed in 2012. He breached parole with drug use in 2008, 2012 and in 2017. Many of those breaches resulted in warnings.

71. During previous parole periods, the Defendant commenced employment and attended weekly counselling sessions and reported when directed. For the 2012 offence, Judge Craigie SC noted that the commission of that offence was the only reason for revocation of his parole.

72. The Defendant has been subject to parole conditions since his release on 9 April 2018. The evidence indicates that the Defendant has not been coping particularly well in the community since his recent release on parole. On 18 April 2018, he failed to report to the Wollongong Community Corrections Office and gave no explanation for that failure. He was reluctant to attend the Koori SMART Group on 19 April 2018. He failed to report on 27 April 2018 and failed to fulfil his obligations for a housing application. He said on 20 April 2018 that he does not want to attend counselling at this time. On 30 April 2018, he stated that life in the community was getting “too much” for him and he admitted that he had not taken his mental health medication since his release from custody.

73. I accept the submission for the Plaintiff that the Defendant’s compliance with supervisory obligations whilst on parole has not been good and his compliance recently in that respect has been unsatisfactory.

Section 9(3)(d1) - Report from Corrective Services NSW as to Management of the Defendant in the Community

74. A risk management report prepared by Karen Langdon, Community Corrections Officer, dated 21 January 2018 addresses this statutory factor and outlines a risk management plan should the Defendant be placed on an ESO.

75. Ms Langdon’s report identifies a number of risk factors outlined in the risk assessment report of Mr Samuel Ardasinski, senior psychologist, Serious Offenders Assessment Unit, Corrective Services NSW, dated 15 December 2017 (to which further mention will be made). Ms Langdon proposes a risk management plan for the Defendant aimed at minimising risk. She proposes regular interviews and unannounced visits, the use of electronic monitoring, movement schedules and curfews, counselling through Forensic Psychology Services, referral to psychiatric services, random drug and alcohol testing and association restrictions.

76. Ms Langdon’s report notes that electronic monitoring has not been applied during the Defendant’s parole period and states that it is an important risk management tool in this case. Likewise, movement schedules are said to be an important risk management tool in circumstances where the Defendant’s movements in the community have not been always notified whilst subject to parole. Ms Langdon describes the utility of a curfew condition with its importance relating to the minimisation of the risk of the Defendant being in certain places at more risk times of the day.

77. Ms Janelle Farroway, High Risk Offender Applications and Operational Governance Officer, Corrective Services NSW, endorsed Ms Langdon’s risk management report of 21 January 2018. In addition, the affidavit of Ms Farroway dated 2 May 2018 provides an updated assessment with respect to the Defendant. Ms Farroway outlines the Defendant’s progress since his release on parole on 9 April 2018.

78. Ms Farroway states that the prerelease plan for the Defendant to attend a particular facility did not take place as the Defendant had engaged in an incident of self-harm shortly before his release. As a result, emergency accommodation was secured for the Defendant in a regional area. Ms Farroway notes that the Defendant’s response to supervision since his release has been unsatisfactory with several instances of failure to attend all appointments and with the Defendant displaying a troubling attitude about being in the community.

79. Although the Defendant was in breach of one of his conditions of parole with respect to accommodation, the Court was informed that the State Parole Authority had determined recently not to revoke his parole. That said, there is evidence of unsatisfactory aspects of the Defendant’s compliance with parole. It is, of course, for the Court to consider and apply the provisions of the HRO Act with respect to this preliminary hearing. The decision of the State Parole Authority not to revoke the Defendant’s parole is of very limited assistance to him on this application.

Section 9(3)(c) and (d) - Risk Assessment Reports Undertaken Concerning the Defendant Together with the Results of any Statistical or Other Assessment Concerning Risk

80. A risk assessment report dated 15 December 2017 of Mr Ardasinski is before the Court.

81. Mr Ardasinski concludes that the Defendant is in an overall high-risk category for violence when compared to other male violent offenders. In a detailed report, he outlined the Defendant’s history of offending and notes that his history of community supervision has been described as “problematic” with the Defendant being “difficult to manage on parole”.

82. Mr Ardasinski notes that the Defendant has not been subject to electronic monitoring whilst at conditional liberty under supervision. Mr Ardasinski continued (at [13] of his report):

“It is possible that a staged approach to [electronic monitoring] would allow for compliance and positive reintegration if it is to be rewarded, as Mr Sotheren did demonstrate at times during his most recent period on parole, but it would also allow for more intensive monitoring at times when it is identified that risk is heightened for an individual like Mr Sotheren.”

83. Mr Ardasinski noted the psychiatric diagnoses of the Defendant which had been carried out over the years, which indicated that the Defendant was subject to a borderline personality disorder with antisocial traits, substance dependence (amphetamines and alcohol), post-traumatic stress disorder or complex trauma based on his traumatic experience as a child and mood disorders.

84. Mr Ardasinski noted that although the various diagnoses did not necessarily result in increased risk, they may lead to a reduced ability to cope with distress (leading to anger) or may lead to amphetamine use which resulted in increased irritability and, based on the Defendant’s history of committing violent robberies when using drugs, increased risk.

85. It was observed that the Defendant had not completed an appropriate high-intensity program aimed at addressing his chronic violence risk because of a combination of his reluctance, unfortunate timing and the unsuitability of the prison environment for him to engage in such intensive work. Nevertheless, the Defendant had completed several lower intensity courses including Getting SMART, SMART recovery meetings, Controlling Anger and Learning to Manage it (CALM) Managing Emotions and Some Real Understanding of Self-help (RUSH) program sessions.

86. Mr Ardasinski undertook a risk assessment combining both static and dynamic factors, which allowed for consideration of information about likelihood, imminence, frequency and severity of risk. He applied the Violence Risk Appraisal Guide - Revised (VRAG-R) which contains 12 risk factors which are scored to provide a probability of an individual committing further violence over set periods of time. The Defendant scored 31, which was equal to or higher than 95% of the sample, and placed him in the highest risk category of reoffending. In the norms for this category, 76% of violent offenders reoffend violently within five years and 87% reoffend violently within 12 years.

87. Mr Ardasinski considered the Violence Risk Scale (VRS) which assesses static and dynamic risk factors to provide a probability of risk reoffending. The Defendant’s score placed him in the high-risk category. The score of 44.5% of offenders who had a similar score to the Defendant were criminally convicted of another violence offence, although not necessarily a “serious violence offence” as defined in the HRO Act within five years of release.

88. Mr Ardasinski applied the Historical Clinical Risk 20 (HCR-20), a checklist of 20 factors specific to violence, organised around historical, clinical and future risk management factors. The Defendant scored in the high-risk category of future violence.

89. Mr Ardasinski observed that, of the risk factors identified in the VRS and HCR-20, there are numerous relevant areas of concern including lack of insight into violence, lack of community support, poor compliance with supervision, borderline personality disorder, substance abuse and historical factors. In addition, there are few potential protective factors, particularly given the Defendant’s oscillating relationship with his family.

90. Mr Ardasinski assessed the Defendant’s overall risk in the following way (at [54]-55] of his report):

“54.   The management of risk usually involves the offender improving their level of functioning in the aforementioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. In Mr Sotheren's case, he has likely started on his trajectory away from serious violent offending, but he is not very far along it. His most recent period in the community was his longest for many years. He will require intensive support and supervision to succeed.

55. The overall totality of evidence suggests that Mr Sotheren presents a high risk of further serious violence offending if not made subject to an Order under the HRO Act. While his last period in the community whilst subject to supervision did not result in violent reoffence, it did include a return to amphetamine use which has on every other prior occasion heralded a return to violent robbery to fund further drug use. Until such time as Mr Sotheren has developed more effective coping strategies than using amphetamines, he will likely continue to pose a high risk of repeat violent offending which may involve, serious violence, given his history of same.”

91. Mr Ardasinski concluded that the Defendant’s risk of violent reoffending is estimated to be in the high-risk category relative to other men who have offended violently and noted that he had “committed multiple violent robberies to fund his drug habit, and on one occasion, the violence has been ultimately lethal”.

92. Mr Ardasinski recommended that, should an ESO be made, an approach be used that incorporates appropriate counselling, dialectic behaviour therapy and encouragement of prosocial influences in combination with containment of risk through supervision. Mr Ardasinski noted that there may be conditions requiring the Defendant to wear electronic monitoring equipment and to provide a schedule of his daily activities and to be subject to a curfew and that these steps “may assist in his impulsive decision making where he has, in the past, committed robberies in the streets late at night while on drugs”.

93. The evidence includes a number of psychiatric and psychological assessments of the Defendant undertaken over many years. It is not necessary to detail the contents of these reports which contained diagnoses referred to in the report of Mr Ardasinski. The reports concerning the Defendant include the following:

1. a report of Dr G Gluckstern, consultant psychiatrist with the Prison Medical Service, dated 13 August 1990;

2. a report of Dr Olav Nielssen, consultant psychiatrist with the Prison Medical Service, dated 10 August 1993;

3. reports of Dr Bruce Westmore, forensic psychiatrist, dated 12 October 1993 and 12 May 2012;

4. reports of Mr W John Taylor, clinical forensic psychologist, dated 9 July 2009 and 4 May 2012;

5. reports of Dr Jonathon Adams, forensic psychiatrist, dated 17 October 2012 and 6 November 2012;

6. report of Dr Martyn Patfield, psychiatrist with Justice Health, dated 12 February 2013;

7. report of Dr Stephen Allnutt, forensic psychiatrist, dated 15 March 2016 (prepared for the purpose of a claim for sexual abuse when the Defendant was a child);

8. report of Holly Cieplucha, senior psychologist, Acute Crisis Management Unit, Corrective Services NSW, dated 3 March 2017.

94. These reports reflect the matters summarised by Mr Ardasinski and point to the long-standing difficulties experienced by the Defendant in his life and his pattern of offending.

Section 9(3)(e) - Treatment or Rehabilitation Programs Undertaken by the Defendant

95. As noted earlier, the Defendant has never completed a high-intensity program aimed at addressing his chronic violent risk. Mr Ardasinski has set out attempts made to engage the Defendant into the Violent Offender Treatment Program (VOTP) since about 2007, but the Defendant was initially resistant to participation and, by the time he changed his mind, there was inadequate time to complete it.

96. Later, during his most recent period of incarceration, the Defendant agreed to undertake VOTP but due to his involvement in the Royal Commission Into Institutional Responses to Child Sexual Abuse, it was decided that it was safer for him not to engage at that time due to potential retriggering of trauma. A later incident led to a decision that a prison environment was not a safe enough place for the Defendant to engage in intensive trauma treatment.

97. As noted earlier, the Defendant has engaged in lower intensity courses including the alcohol and other drugs program (Getting SMART) and the CALM program.

Determination of Application for ISO

98. Mr Lenehan submitted that a clear foundation had been demonstrated for the making of an ISO in this case together with an order for psychiatric examination. Whilst acknowledging that the manslaughter offence was the only “serious violence offence” on the Defendant’s record, he pointed to the other offences of violence on the Defendant’s record as well and submitted that there was a significant risk of the commission of a “serious violence offence” so that an ISO ought be made.

99. Ms Cook submitted that it was important that the Court keep in mind the requirement in s.5B(d) of the HRO Act that the Defendant be an unacceptable risk of committing another “serious violence offence” if not kept under supervision under an order. Although the Defendant had a significant criminal history including offences of violence, it was submitted that the evidence did not reach the high threshold with respect to the class of offence to be considered for the purpose of the assessment of risk.

100. I have set out earlier in this judgment the legal principles to be applied following a preliminary hearing where application for an ISO and for psychiatric examination is made.

101. The formal threshold requirements under the HRO Act have been established in this case.

102. The remaining question is whether the Court can be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: s.7(4) HRO Act. The critical issue at this point is whether the Court can be satisfied that the requirement in s.5B(d) of the HRO Act has been satisfied at a prima facie level by reference to the material before the Court.

103. It is the case that the Defendant has only one offence in his criminal history which falls within the definition of “serious violence offence” under s.5A of the HRO Act and that is the offence of manslaughter committed in 1999.

98. It is because of the overlap between the sentence being served for the manslaughter offence and the sentence imposed by his Honour Judge Craigie SC at the Parramatta District Court on 10 May 2013 that the Defendant falls within the definition of “supervised offender” in s.5I(2)(a)(iv) of the HRO Act.

99. However, the Defendant’s criminal history includes a significant number of offences of violence (usually associated with robbery) which have been committed by the Defendant over many years. He has caused injury, and significant injury, to a number of persons who were strangers attacked randomly by him in public places. The Defendant’s violent offending has been associated with drug use and he has frequently been affected by drugs when his offences of violence are committed.

100. In considering the Defendant’s criminal history, it is necessary to keep in mind that he has been in custody for lengthy periods of time. When at large in the community, he has committed serious offences of violence in the 1990s, then a cluster of serious offences of violence (including manslaughter) in 1999 and then another offence of robbery with violence in 2012.

101. In making an assessment as to whether the Defendant poses an unacceptable risk of committing another serious violence offence if he is not kept under supervision (at this stage) under an ISO, the Court is entitled to have regard to the nature of his offences which have involved explosive acts of violence. The fact that only one of his offences falls within the demanding criteria for a “serious violence offence” in s.5A(1) is a relevant but not determinative factor on the application.

102. The unpredictable and explosive nature of the Defendant’s violent offending is such that there has been, and remains, a significant risk of the commission of an offence falling within the class of “serious violence offence”. The Court is entitled to have regard to the Defendant’s history of explosive violence in assessing the risk of the commission of a “serious violence offence” for the purpose of this application: State of New South Wales v Windle [2016] NSWSC 1816 at [89]-[92].

103. Mr Ardasinski has assessed the Defendant as a high risk of reoffending after consideration of both static and dynamic factors. The Defendant has committed serious offences of violence in the past whilst on parole. There is a significant concern with respect to the use of illegal drugs by the Defendant. The recent and current response of the Defendant to his parole conditions has been uneven and erratic.

104. Having applied the relevant legal test to the evidence, I am satisfied that an ISO should be made in this case together with an order for examination of the Defendant by two psychiatrists.

Conditions of the ISO

111. It was submitted for the Defendant that the conditions presently fixed by the State Parole Authority for his parole should suffice if the Court determined to make an ISO. The Court was asked to take the same approach as that adopted in State of New South Wales v Thurston [2017] NSWSC 1760.

112. I do not accept that submission. This case is different to State of New South Wales v Thurston where it was clear that the Defendant was complying fully with his parole conditions. Regrettably, the Defendant’s compliance with his parole conditions since his release on 9 April 2018 has not been good.

113. I am satisfied that the more elaborate and targeted conditions provided for in s.11 of the HRO Act ought be utilised with respect to the Defendant. The Court is considering the statutory issues arising under the HRO Act and is not seeking to replicate or extend the functions of the State Parole Authority under the Crimes (Administration of Sentences) Act 1999.

114. I am satisfied, on a prima facie basis, that the more extensive and targeted conditions under an ISO are appropriate in this case.

115. I will consider the proposed conditions under the different headings used in the Schedule of Conditions of Supervision. In doing so, I keep in mind that this judgment involves a limited period whilst an ISO is in place. If the Court determines, after a final hearing, to impose an ESO, the question of appropriate longer-term conditions will be a matter for the Judge who presides at the final hearing.

116. Submissions were made by counsel with respect to the conditions of an ISO if the Court was minded to make such an order. The conditions sought by the Plaintiff are annexed to the Further Amended Summons.

117. In considering the conditions to be set, I have kept in mind the principles referred to earlier in this judgment.

Monitoring and Reporting

118. I am satisfied that each of Conditions 1 to 4 should be set in this case. Condition 4 is an appropriate requirement to notify police of the existence of the order.

Electronic Monitoring

119. It was submitted for the Defendant that a requirement for electronic monitoring was both intrusive and not warranted on the evidence adduced on the application. It was submitted for the Plaintiff that the evidence contained in the reports of Ms Langdon and Mr Ardasinski together with the affidavits of Ms Farroway and Ms O’Brien demonstrated the appropriateness of an electronic monitoring condition.

120. I am conscious that an electronic monitoring condition is intrusive and that the Court should give careful consideration before requiring such a step.

121. The evidence raises issues with respect to the movement and whereabouts of the Defendant at different times including problems in this respect in the period since his release on parole on 9 April 2018. A particular concern in this case is the Defendant’s history of commission of acts of explosive violence upon members of the public, usually late at night when the Defendant has been under the influence of drugs.

122. An electronic monitoring condition will serve the purposes identified by Mr Ardasinski and Ms Langdon. I am satisfied that such a condition is appropriate in this case bearing in mind that the safety of the community must be the paramount consideration of the Court: s.9(2) HRO Act.

Schedule of Movements

123. It was submitted for the Defendant that a schedule of movements was not required as part of the Defendant’s parole conditions and that a similar approach ought be taken with respect to this application. The Plaintiff submitted a proper foundation had been demonstrated for conditions of this type in this case.

124. I am satisfied that Conditions 7 to 10 ought be set in this case. The schedule of movements conditions work hand-in-hand with the electronic monitoring conditions and are warranted on the evidence adduced on the application.

Accommodation

125. Conditions 11 to 15 seek to place certain restrictions and requirements concerning the Defendant’s accommodation.

126. It was submitted for the Defendant that any condition should not extend beyond that which exists at present under his parole. The Plaintiff submitted that the further condition sought ought be made having regard to the various risk factors applicable to the Defendant.

127. I am satisfied that the curfew condition (Condition 12) is appropriate in this case for similar reasons to those which apply to conditions referred to earlier.

128. I do not accept the submission for the Defendant that other conditions relate more to sex offenders than to a person in the Defendant’s position. In my view, the various accommodation conditions are all appropriate given the Defendant’s history of violent offences and the risk factors which have been identified in the evidence.

Place and Travel Restrictions

129. Conditions 16 to 19 involve place and travel restrictions. The Defendant submitted that Conditions 17 to 19 were not appropriate in this case. The Plaintiff submitted that all conditions ought be imposed with some modification to Condition 19.

130. I am satisfied that each of Conditions 16, 17 and 18 should be set. With respect to Condition 19, I propose to fix the condition so that it will provide:

“The Defendant must not attend any place where he knows alcohol or drugs are illegally sold.”

Employment, Finance and Education

131. It was submitted for the Defendant that proposed Conditions 20 to 22 did not relate to an identified area of risk and were not appropriate in this case. The Plaintiff submitted that these conditions were appropriate in the circumstances of this case.

132. I am satisfied that Conditions 20, 21 and 22 should be set in this case. The matters contained in those conditions do bear upon areas of identified risk in the manner referred to by Mr Ardasinski and Ms Langdon.

Drugs and Alcohol

133. Conditions 23 to 28 relate to drug and alcohol use.

134. It was submitted for the Defendant that the number of conditions could be reduced to better reflect the nexus with identified risk. The Plaintiff submitted that all conditions should be fixed in this case.

135. I am satisfied that Conditions 23 to 28 should be set as part of the ISO. It is clear that substance abuse issues have been central to the Defendant’s violent offending and the risk of serious violent offending in the future. These conditions relate closely to management of relevant risk.

Non-Association

136. Conditions 29, 30 and 32 involve the capacity of the Department’s Supervising Officer (“DSO”) to be informed of, and to give directions concerning, the Defendant’s associations with other persons.

137. The Defendant submitted that Condition 32, in particular, was not necessary as it had no nexus with the risk of serious offending. The Plaintiff submitted that the potential for explosive violence demonstrated by the Defendant in the past should not be confined within tight boundaries, with the possibility that it may extend to violence against a partner so that Condition 32 was appropriate.

138. I am satisfied that Conditions 29 and 30 should be fixed. I note that Condition 31 was not pressed by the Plaintiff. Condition 32 would require the Defendant, if he commenced a relationship of a sexual or intimate nature with a person, to tell his DSO knowing the DSO may tell that person about the Defendant’s criminal history.

139. The Defendant does not have a history of sex offending. The relevant history concerns offences of violence usually directed against strangers in public places. However, the difficulty is that the Defendant’s violent offending has arisen when he is under the influence of a drug. This scenario is not confined to the risk of offences being committed against strangers in public places. I am satisfied that a proper basis has been demonstrated for the inclusion of Condition 32 in this case.

Club Affiliations

140. Condition 33 relates to club affiliations.

141. It was submitted for the Defendant that there was no nexus between the relevant risk and the need for a condition of this type. The Plaintiff submitted that a foundation for this condition arose from Mr Ardasinski’s report and the need to scrutinise social contacts and to avoid any undesirable social contacts on the part of the Defendant.

142. I am satisfied that this condition is appropriate in the circumstances of the case as part of a number of conditions which address, in different ways, the Defendant’s social contacts which may give rise to the risk of violent offending.

Weapons

143. There was no objection to Condition 34 which relates to the possession and use of firearms or prohibited weapons and I will fix such a condition.

Mobile Phone and Electronic Communications

144. Conditions 35 to 38 require the Defendant to inform his DSO of various steps relating to his mobile phone and electronic communications and to comply with directions in this respect.

145. It was submitted for the Defendant that his offences do not involve grooming so that there is no need for conditions of this type which cannot be linked with identified risk. The Plaintiff submitted that conditions of this type are appropriate for the purpose of scrutinising the Defendant’s social contacts for the reasons given by Mr Ardasinski.

146. I am satisfied, in the circumstances of the case, that these conditions are appropriate. They form part of a series of conditions directed to the Defendant’s social contacts in a way which relate to effective management of risk.

Search and Seizure

147. The Defendant opposed the imposition of Conditions 39 to 42 which related to search and seizure. The Plaintiff submitted that these conditions were appropriate for a number of purposes including a capacity to search for illegal substances.

148. I am satisfied that Conditions 39 to 42 should be set in this case. The particular nexus with the risk of reoffending arises from the Defendant’s persistent use of illegal drugs in the past which have then been associated with the commission of offences involving explosive violence.

Personal Details and Appearance

149. Conditions 43 to 46 require the Defendant to maintain his present name and to take other steps with respect to his personal details and appearance.

150. It was submitted for the Defendant that these conditions are more appropriate for a sex offender than a person with the Defendant’s history. The Plaintiff submitted that these conditions constitute a type of anti-circumvention condition so as to ensure that the conditions as fixed cannot be avoided or undermined.

151. I am satisfied that Conditions 43 to 46 are appropriate in this case as a means of promoting compliance with the conditions to be set under the ISO.

Medical Intervention and Treatment

152. Conditions 47 to 52 all relate, in one way or another, to medical intervention and treatment with respect to the Defendant.

153. The Defendant accepts some of these conditions which are similar to current parole requirements, but opposes the imposition of others. The Plaintiff submits that these are important conditions involving ongoing treatment and counselling of the Defendant and the monitoring of medication usage which was an important aspect of the case.

154. I am satisfied that Conditions 47 to 52 should be set in this case. Management of the risk which the Defendant poses concerning the commission of a serious violence offence is tied up inextricably with ongoing treatment, counselling and management of health issues including his medication usage. All of these conditions are appropriate to be set as part of the ISO.

Conclusion

155. I am satisfied that an ISO should be made in this case together with an order for examination of the Defendant by two psychiatrists and associated orders.

156. I am satisfied that the conditions which I have identified should be fixed as conditions of the ISO. As noted earlier, if the Court determines in the future that an ESO should be made, it will, of course, be a matter for the Judge presiding at the final hearing to determine what conditions should be fixed as part of an ESO bearing in mind the longer term operation of such conditions and other issues relevant to that decision. However, having considered the submissions made at the preliminary hearing, I am satisfied that the conditions which I have identified should be included as part of the ISO.

157. I make the following orders:

1. an order pursuant to s.7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) appointing two qualified psychiatrists to conduct separate psychiatric 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;

2. an order directing the Defendant to attend those examinations;

3. an order pursuant to ss.10A and 10C(1) of the Act, that the Defendant be subject to an interim supervision order for a period of 28 days commencing today, 25 May 2018, and expiring on 22 June 2018, unless renewed on further application by the Plaintiff;

4. an order pursuant to s.11 of the Act, directing that the Defendant comply with the conditions of the interim supervision order which are set out in the attached Schedule.

158. I will consider making such further orders as are appropriate to progress the application for final hearing after hearing the parties on that matter.

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SCHEDULE

PROPOSED CONDITIONS OF SUPERVISION

SCHEDULE OF CONDITIONS OF SUPERVISION

Darren James Sotheren

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

159. The Defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

160. The Defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

161. The Defendant must follow all reasonable directions by his DSO or any other person supervising him.

162. The Defendant must attend the police station nearest to his approved accommodation within three days of the date of this order and provide a copy of this order.

Electronic Monitoring

163. The Defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

164. If the Defendant is not charged with any offence of breaching the ESO, or with any other criminal offence within the first 15 months of the commencement of the extended supervision order, the DSO and any other person supervising the Defendant, may direct that the Defendant will progress to a stage number of supervision one or more higher than the stage number the Defendant is on.

Schedule of Movements

165. If directed, the Defendant must provide a weekly plan (called a schedule of movements) and this is to be provided three days before it is due to start.

166. If the Defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

167. The Defendant must not deviate from his approved schedule of movements except in an emergency.

168. The Defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

169. The Defendant must live at an address approved by his DSO.

170. The Defendant must be at his approved address between 9.00 pm and 6.00 am unless other arrangements are approved by his DSO.

171. The Defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

172. The Defendant must not spend the night anywhere other than his approved address without the approval of his DSO.

173. The Defendant must not permit any person to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

174. The Defendant must not leave New South Wales without the approval of CSNSW.

175. The Defendant must surrender any passports held by the Defendant to the Commissioner,

176. The Defendant must not go to a place if his DSO tells him he cannot go there.

177. The Defendant must not attend any place where he knows alcohol or drugs are illegally sold.

Part D: Employment, finance and education

178. If the Defendant is unemployed, the Defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

179. The Defendant must notify his DSO of any job, volunteer work or educational course he seeks to undertake or has commenced.

180. The Defendant must provide any information as to his financial affairs, including income and expenditure if directed by his DSO.

Part E: Drugs and alcohol

181. The Defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

182. The Defendant must submit to testing for drugs and alcohol as directed by his DSO.

183. The Defendant must not enter any licensed premises without the prior approval of his DSO.

184. The Defendant must attend and participate in programs and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO and any persons treating the Defendant in those programs.

185. If the Defendant consents to participating in a drug and alcohol residential rehabilitation facility he must participate in any such facility as directed by his DSO.

181. If the Defendant participates in a residential rehabilitation facility at the direction of his DSO, the Defendant must make genuine attempts to remain in and complete that program.

Part F: Non-association

187. The Defendant must not associate with people that his DSO tells him not to.

188. The Defendant must not associate with any people who he knows will be or are consuming or under the influence of illegal drugs or alcohol without the approval of his DSO. The Defendant must obtain that approval as soon as the Defendant knows or becomes aware that persons he is associating with are or will be consuming alcohol.

189. [Deleted].

190. If the Defendant starts a relationship with someone involving sexual or intimate contact, he must tell his DSO knowing the DSO may tell that person about his criminal history.

Club affiliations

191. The Defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation.

Part G: Weapons

192. The Defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.

PART H: Mobile phone and electronic communications

193. The Defendant must give his DSO a list of all mobile phone devices he possesses (identified by their make, model and identification number) and a list of all SIM cards and telephone numbers associated with the SIM cards that he possesses. The Defendant must advise his DSO of any changes or updates to this list as soon as practicable.

194. The DSO (or any other person requested by the DSO) may remotely inspect any mobile phones in the Defendant's possession or that has been or is being used by the Defendant and any electronic devices listed in Condition 35 above.

195. The Defendant must obey any reasonable directions by his DSO about the use of his mobile phone including any reasonable directions relating to his access to his internet on any tablet devices, data storage devices, computers and any other electronic devices.

196. The Defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO for the purpose of the DSO supervising whether the Defendant has contacted any persons to purchase illicit drugs or alcohol.

Part I: Search and seizure

197. If the DSO reasonably believes that a search (of the type referred to in sub­paragraphs (d) to (g) below) is necessary:

1. for the safety and welfare of residents or staff or persons present at the Defendant's approved address;

2. to monitor the Defendant's compliance with this order; or

3. because the DSO reasonably suspects the Defendant of behaviour or conduct associated with an increased risk of the Defendant committing a serious offence;

then the DSO may direct, and the Defendant must submit to:

4. search and inspection of any part of, or anything in, the Defendant's approved address;

5. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the Defendant;

6. search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the Defendant; and/or

7. search and examination of his person.

198. For the purposes of the above condition:

1. a search of the Defendant means a garment search or a pat-down search;

2. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the Defendant, or by an Officer of CSNSW of the same sex as the Defendant under the direction of the DSO.

NOTE:

"Garment search" means a search of any article of clothing worn by the Defendant or in the Defendant's possession, where the article of clothing is touched or removed from the person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched.

199. During a search carried out pursuant to Condition 39 above, the Defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the Defendant's possession or not, which the DSO reasonably suspects will compromise:

1. the safety of residents or of staff at the Defendant's approved address;

2. the welfare or safety of any member of the public or any other person; or

3. the Defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the Defendant committing a serious offence.

200. The Defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to Condition 39 above.

Part J: Personal details and appearance

201. The Defendant must not change his name from "Darren James Sotheren" or use any other name without the approval of his DSO.

202. The Defendant must not change his appearance without the approval of his DSO.

203. The Defendant must let CSNSW photograph him.

204. If the Defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part K: Medical intervention and treatment

205. The Defendant must notify his DSO of the identity and address of any healthcare practitioner, any healthcare practitioner any psychologist, psychiatrist or counseling service that he consults.

206. The Defendant must attend all psychological and psychiatrist assessments, therapy, support and treatment that his DSO tells him to attend for the purpose of addressing the Defendant's risk of reoffending.

207. The Defendant must take all medications that are prescribed to him.

208. If the Defendant knowingly ceases to take medication that has been prescribed to him, either on a temporary or permanent basis, the Defendant is to notify the DSO within 24 hours of ceasing to take the medication.

209. The Defendant must agree to the persons referred to in Condition 47 above sharing information including reports on his progress and information he has told them with each other and, with his DSO and with any other persons involved in his supervision.

210. The Defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Decision last updated: 25 May 2018