State of New South Wales v Sutton (No 2)

[2017] NSWSC 875

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Sutton (No 2) [2017] NSWSC 875
Hearing dates:	30 June 2017
Date of orders:	30 June 2017
Decision date:	30 June 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders made in terms sought by the State.
Catchwords:	HIGH RISK OFFENDER – final hearing – application for final extended supervision order – terms of proposed conditions – length of order sought opposed – orders sought made
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) NSWLR 636; [2016] NSWCA 57 State of New South Wales v Scerri [2012] NSWSC 271 State of New South Wales v Sutton [2017] NSWSC 787
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Eric Mitchell Sutton (Defendant)
Representation:	Counsel: Ms G Wright (Plaintiff) M S Hall (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2017/106421
Publication restriction:	None

Judgment

1. By its summons the State sought both interim and final extended supervision orders under the Crimes (High Risk Offenders) Act2006 (NSW) against Mr Sutton, on its case a high risk violent offender, as defined in s 5B. In State of New South Wales v Sutton [2017] NSWSC 787 McCallum J stood over the hearing of the application for interim orders to 30 June 2017, when the application for final orders was listed for hearing. Interim orders were not then opposed, but in issue was the question of where Mr Sutton should be permitted to reside.

2. On final hearing orders, under ss 5F and 9 of the Act were sought for a period of three years and if necessary, an interim supervision order under s 10B for a period of 28 days, from 1 July 2017. The necessity for that application was because, given the requirements of the statutory scheme, it was common ground that if orders are to be made against Mr Sutton under the Act, whether interim or final, they must be made before 1 July.

3. Mr Sutton did not oppose a final extended supervision order being made, but he took issue with the length of the order sought. On the case he advanced, the order would only be made for a period of 18 months.

4. On hearing the parties today, I was satisfied that their common position, that Mr Sutton is a “high risk violent offender”, as defined in s 5E in respect of whom a final extended supervision order should be made, had to be accepted, given all of the evidence led. I was also satisfied that the order should be made for a term of three years. Accordingly I made orders in terms sought by the State, which appear below.

5. These are the reasons for those conclusions.

6. In evidence were the reports of forensic psychiatrists who examined Mr Sutton in June 2017, Dr Ellis and Dr Martin, as well as affidavits sworn by Mr Martin, a solicitor in April 2017, which went to Mr Sutton’s criminal history; a risk assessment report prepared by Mr Ardasinski in August 2016; a risk management report prepared by Mr Elsayed in November 2016; Mr Elsayed’s 2017 affidavits, which explained the outcome of the assessment of proposed post release residence for Mr Sutton; and Mr Yeomans’ 2017 affidavit which explained what was proposed in respect of electronic monitoring of Mr Sutton and his case management.

Mr Sutton’s offending

7. Mr Sutton is currently serving a term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months, following his conviction of four serious offences which he committed in 2007, of assault; detain without consent, with the intention of obtaining an advantage in circumstances of aggravation; indecent assault; and malicious wounding with intent to do grievous bodily harm.

8. Murrell DCJ’s sentencing remarks reveal that these offences were committed while Mr Sutton was affected by both alcohol and a large quantity of ice. He did not recall having stabbed his victim, but he was identified as the perpetrator some two weeks after the offences were committed, when he was arrested. He then denied his involvement, but he later entered a plea.

9. In short, Mr Sutton had developed a belief that his victim was a police informer, having become suspicious as to why the victim had also not been charged, when he was in a car with an acquaintance that was arrested and charged. The victim obtained a recording of a police interview and charge sheets, which he showed Mr Sutton. Mr Sutton objected and proceeded to punch the victim in the head, accusing him of being a liar. Mr Sutton then listened to the tape, but he was paranoid about its contents, accusing the victim of being a dog and a liar.

10. Mr Sutton then took the victim to a spare room, where he was tied up and assaulted. Later he was threatened and Mr Sutton demanded an apology, for having put his acquaintance into gaol. The victim was then pushed into a bedroom, where he was retied and left for a further period, before he was put into a car and told that he would be taken home. Instead he was taken to bushland, pushed into the bush and stabbed.

11. The victim lost consciousness. He regained consciousness a few times during the night and again at daylight, when he was able to walk to the road, where a passing motorist stopped and took him to hospital, where he lost consciousness again. He woke in the surgical ward. He was treated for stab wounds to the right and anterior of his neck; a laceration and stab wound to his left cheek; a stab wound to his right forearm; and three large lacerations to his scalp. None of the wounds was close to a main vessel, but there had been significant bleeding.

12. Murrell DCJ (as her Honour then was), described Mr Sutton’s serious violence offences as “nightmarish”, offences which the community would regard “with absolute horror”. Her Honour found that the victim was rendered helpless and had been humiliated in front of others, as well as being detained for a significant period, before being viciously wounded with a knife, in a remote bush area, where he was left for dead.

13. He was then diagnosed by Dr Carne, a forensic psychiatrist, to be suffering an acute drug induced psychosis involving delusions. He had by then suffered an alcohol problem since childhood, he also had a very serious problem with abuse of amphetamines, since aged between 28 and 30 years, as well as being a daily cannabis user. When aged 18 he had been the victim of a sexual assault while in custody and had later been adversely affected by the death of his father, to which he attributed ongoing anger management problems.

14. Murrell DCJ recommended Mr Sutton’s release be subject to conditions Dr Carne suggested, namely abstinence from drugs and alcohol, initial entry into long term residential drug and alcohol rehabilitation for 6 to 12 months and regular psychiatric treatment and medication.

15. Mr Sutton has twice been released on parole for this offending. On the last occasion he was arrested after two months and returned to custody. His earliest release date now is 1 July 2017.

Why orders had to be made

16. I was satisfied that when the evidence was considered in light of the applicable provisions of the Act, that final orders had to be made against Mr Sutton, in the terms which the parties agreed. I will deal separately with the question of the term of the order.

17. In coming to that conclusion I bore in mind the objects of the Act specified in s 3 to be:

"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."

18. There was no issue between the parties that on the evidence the Court could be satisfied that Mr Sutton was a “high risk violent offender” as defined in s 5B, against whom a continuing supervision order could be made under s 5E. Section 5B(2) provides;

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

19. Mr Sutton was such an offender. The serious offences for which he is serving his current sentence include a “serious violence offence”, relevantly defined in s 5A(1) to be constituted by a “serious indictable offence” constituted by 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,”

20. Section 5A(2A)(c) provides that a reference in subsection (1)(a) to:

“(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.”

21. A “serious indictable offence” takes its meaning from s 4 of the Crimes Act 1900 (NSW), as an indictable offence punishable by imprisonment for life or a term of 5 years or more. Mr Sutton’s malicious wounding offence is such an indictable offence, which falls within these definitions.

22. The meaning of the phrase "a high degree of probability" was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [20] - [21]. It involves "something beyond more probably than not", so that the existence of the risk, that is the likelihood of Mr Sutton committing a further serious violence offence, must be proven to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt.

23. I was well satisfied that the evidence which I will discuss, met that requirement.

24. The meaning of the phrase "an unacceptable risk" was considered in Lynn v State of New South Wales (2016) NSWLR 636; [2016] NSWCA 57. There it was observed at [51] that a determination of whether someone poses such a risk involves an evaluative task. That task must be undertaken in light of the provision made in s 5E(3), which provides that the Court "is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence."

25. I was also satisfied that the evidence established the existence of such a risk in Mr Sutton’s case.

26. There was also no issue that at the time this application was made, Mr Sutton was a “supervised violent offender” in respect of whom an application for an extended supervision order may be made: s 5H. That was also established on the evidence.

27. Section 9(3) specifies the matters which must be taken into account on an application such as this. There was also no issue that those requirements had been addressed on the evidence led, which I will discuss. The section provides:

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

(a)    the safety of the community,

(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 relevant 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 relevant 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,

(f)    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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).”

Mr Sutton’s record

28. The evidence established not only the serious offences which Mr Sutton committed in 2007, for which he is serving his current sentence, but that he has a relevant, serious record of repeated prior offending, which commenced when he was a juvenile.

29. In 2005, while subject to an apprehended violence order, Mr Sutton punched his victim while intoxicated and later, after further drinking, stalked a bar maid as she went home. He was sentenced to imprisonment for 12 months, with a non-parole period of 9 months for each of his stalking and contravene AVO offences.

30. In 2001 Mr Sutton entered his victim’s house, demanded that he come out to fight and when he refused, punched him to the head a number of times, and grabbed him around the neck. Another person then struck the victim with a bottle and when he fell to the ground, Mr Sutton kicked him to the head and body and the other offender stomped on his head. The victim suffered lacerations to the forehead and jawline, requiring 70 stitches, as well as a badly dislocated thumb, requiring surgery. Mr Sutton was angry on arrest, because he believed the victim had sexually assaulted a friend. He was sentenced to imprisonment for 27 months with a non-parole period of 21 months, for these malicious wounding and enter dwelling and commit felony offences.

31. In 1999 Mr Sutton struck the caretaker of a caravan park about the head with his fist. After being calmed by his mother, he struck his victim again, broke a pane of glass and threatened to kill him. He was sentenced to a fixed term of imprisonment of 2 months and a recognisance (good behaviour bond) under supervision for 12 months. He breached the recognisance and was then imprisoned for 2 months.

32. In September 1997, while carrying a kitchen knife, a wooden club and meat cleaver, Mr Sutton assaulted a man at a caravan park and damaged the window of his mother’s van. He was sentenced to 6 months imprisonment for the assault and weapons offences, confirmed on appeal, but the commencement of the sentence was backdated. He was sentenced to imprisonment for 1 month for the malicious damage offence.

33. In August 1997 Mr Sutton was subject to another AVO, which he breached when his victim refused to give him money, by grabbing her, throwing her to a lounge, punching her in the back of the head, pushing her face first into a mantelpiece and throwing a box of meat at her. He was sentenced to imprisonment for 6 months, reduced on appeal to a good behaviour bond of 2 years.

34. In May 1996 Mr Sutton threw a chair, breaking the window of a shop, when he was not served straight away. He was sentenced to imprisonment for 1 month for malicious damage.

35. In June 1995 Mr Sutton kicked his partner in the legs and grabbed her by the throat and commenced squeezing. He then punched a neighbour, who entered the house and kicked his partner’s daughter in the legs, when she tried to intervene. When police arrived he threatened to kill all three of his victims. He was sentenced to recognisance to be of good behaviour for the most serious assault and fines for the other two.

36. In May 1994 Mr Sutton was also convicted of assault, the details of which are not available.

37. In June 1987 Mr Sutton punched the licensee of a hotel in the ear and back, throwing further punches when he was ejected and head-butted another man, who tried to intervene. On arrest he told police he had a score to settle. He was sentenced to imprisonment for 3 months on two counts of assault of female.

38. Mr Sutton also has a record as a juvenile for street fighting, many driving offences, including high range PCA, stealing, car theft, property damage and drug offences.

The expert evidence

39. The reports of Mr Ardasinski, Dr Ellis and Dr Martin each identify the serious problems which Mr Sutton faces and the risks which he poses on release from custody. They all supported the making of the extended supervision orders, about which the parties agreed.

40. In August 2016 Mr Ardasinski, a senior forensic psychologist who had interviewed Mr Sutton, after the arrest which led to the revocation of his latest parole, for failing to reside at his approved residential address and severing contact with Community Corrections, prepared a risk assessment report, which was supported by Ms Cieplucha, the Chief Psychologist. Mr Sutton was by then aged 47 years. In November 2016 Mr Elsayed prepared a risk management report.

41. In the risk assessment report Mr Ardasinski recorded that Mr Sutton had been evicted from the residential rehabilitation facility to which he was first released on parole, after allegations that he had assaulted a female resident. Mr Sutton claimed that they were just “mucking around”, but his parole was revoked and he returned to custody for a further 12 months.

42. On his second release to Nunyara COSP Mr Sutton was evicted for numerous breaches of house rules, mainly relating to drug and alcohol use, after a formal warning from the Parole Authority.

43. Mr Sutton was then again directed to residential rehabilitation, from which he was discharged for making threatening and intimidating comments, kicking down a staff door and threatening to burn down the centre. He was then provided with emergency housing in Sydney and directed to apply for housing by the Department of Housing, but instead he travelled to Wagga Wagga in the company of a female he was not approved to be with. He was directed to return to Sydney, but was then unable to be located for some two months. He was apparently working in the Riverina. On arrest, after a police car and foot chase, he was found to be in the company of another wanted felon.

The expert evidence

44. Mr Sutton was assessed by Mr Ardasinski as falling in the high risk category for violent reoffending, when compared with other male violent offenders. This was even though in custody, he had participated in a high intensity program aimed at addressing his violence, as well as further lower intensity programs.

45. Mr Ardasinski explained the risk assessment tools he had used in coming to his conclusions and their limitations. He considered that alcohol and drug use were Mr Sutton’s primary risk factors, as well as mental illness, given a past diagnosis of schizophrenia and prolonged grief/post-traumatic stress, related to a sexual assault in custody when he was aged 18 and 19, and the death of his father in an accident when he was aged 21 or 22. Mr Sutton also had been diagnosed to be suffering abnormal bereavement reaction and PTSD symptoms in 1996.

44. Mr Ardasinski considered that during an extended supervision order Mr Sutton could be assisted with reintegration into the community; support with managing his risk factors; managing his mental health; and adjusting to life in the community, without resort to drugs and alcohol, to cope with everyday stressors.

45. Mr Ardasinski also considered that Mr Sutton’s history of violent offending, particularly his index offending, was reflective of paranoia and psychosis, which were significant risk issues for violence, as was his chronic substance abuse history. Mr Sutton’s attitude in interview was that nothing would bring him back to gaol again for violence and that the “violent side of me is over”. Mr Ardasinski considered, however, that this could reflect overconfidence, given his treating therapist’s view that Mr Sutton is likely to be at risk of relapses for some time. Mr Ardasinski identified his risk factors to be drug use, not sleeping and mixing with the wrong persons.

46. The relevant dynamic risk factors which Mr Ardasinski identified were substance abuse, given Mr Sutton’s chronic history; his mental disorders; the instability of his relationships, having been a drifter and violent when in volatile relationships; his history of weapon use and having caused life threatening injuries; his violent lifestyle and violent criminal peers; his propensity to “lose it” and fly off the handle, when faced with what he perceives to be threats, which was adversely affected by his paranoid, entrenched criminal thinking.

47. Mr Ardasinski also considered that Mr Sutton’s return to heavy drug use and involvement with those who encouraged drug use and violence, may lead to high risk situations and the potential for violence to deal with perceived threats, despite some progress in his treatment, which he described. On balance, Mr Ardasinski concluded that there was a high risk that serious violence could result.

48. Mr Ardasinski also discussed the limited potential protective factors available to Mr Sutton and the goals to which extended supervision would be directed, given that Mr Sutton would struggle to live in the community, without regard to his risk factors.

49. In the risk management report, Mr Elsayed, a psychologist, outlined Mr Sutton’s prior history of anger management given by Community Corrections, during his record of offending, which dated back to 1986, when he was a juvenile. He noted that Mr Sutton was then being treated with anti psychotic and anti-depressant medication in custody, with which he was compliant and stable.

50. Mr Elsayed noted that residential rehabilitation programs prepared to accept Mr Sutton could not be identified, either because of his criminal history, the requirement to wear electronic monitoring equipment and his recent behaviour in residential rehabilitation. His request to reside with his sister could not be accommodated, because of difficulties in him being supervised there.

51. Mr Elsayed explained Mr Sutton’s problems with drug treatment programs, because of drug use in custody and alcohol and drug use post release, which Mr Sutton was then undertaking the Addictions Program in custody. How the risk management plan proposed to deal with Mr Sutton’s identified risk factors was also explained, including by management of his substance abuse issues, drug use or cravings and by the electronic monitoring of an approved schedule of movement and the curfew proposed, as well as ongoing psychiatric and other treatment for his mental health and substance abuse problems.

52. Dr Martin interviewed Mr Sutton in June 2017, when he reported stable mood, an absence of psychotic symptoms and no violent ideation. He was then taking prescribed medication for symptoms of PTSD and orthopaedic issues and maintaining phone contact with a maintenance violent offending therapeutic program (“VOTP”).

53. Mr Sutton gave Dr Martin a history of his father’s death having sent him “mad” and fuelling his anger for years; receiving treatment briefly in custody for bereavement and then being prescribed anti-depressant and antipsychotic medication; receiving intensive psychological treatment in 2014 and 2015 in the VOTP program, when he learned a lot about himself; his history of alcohol use since aged 5 years, to the point of being drunk and by age 12 or 13, being a heavy daily drinker, including of bourbon; that he had for many years spent all day drinking spirits and beer; his first cannabis use at age 14 and amphetamines at 18; his daily intravenous use of ice prior to imprisonment, of approximately a gram per day; his last intravenous drug use while on parole in March 2016; past participation in Alcoholics Anonymous; and openness to further drug and alcohol intervention.

54. In evidence are also documents created after revocation of Mr Sutton’s parole in 2016, which reflect alcohol and significant drug use, albeit not at the level which Mr Sutton described having used, prior to his imprisonment.

55. Dr Martin observed that Mr Sutton attributed his index offending to intoxication with amphetamines, not having laid down for a long time and psychosis, with paranoid symptoms improving quickly, when he stopped using illicit substances.

56. Mr Sutton also described his medical and personal history, as including a good childhood, but a hard upbringing; suspension from school from age 14 for fighting; two long term relationships, but a denial of domestic violence; as well as a limited work history; completion of further education in custody; and a criminal record since a juvenile.

57. Dr Martin found that Mr Sutton was suffering no psychotic phenomena, he had a good memory and concentration; and had reasonable insight into his problems. Mr Sutton intended to start again, live a normal life with his family and not to act violently in future.

58. Dr Martin considered various documents, including the risk assessment report prepared by Mr Ardasinski and the risk management report prepared by Mr Elsayed, as well as Mr Sutton’s criminal record; Murrell DCJ’s sentencing remarks; and Dr Carne’s August 2008 report, in which he opined that at the time of his index offending, Mr Sutton was experiencing an ice induced psychosis and alcohol intoxication.

59. Dr Martin noted that Mr Sutton’s demeanour on examination was similar to that on examination by Dr Carne in 2008, namely pleasant, co-operative and without evidence of major mental disorder. Dr Martin also considered the February 2015 and April 2016 parole breach reports and the February 2015 VOTP report, when Mr Sutton was noted as being motivated to manage his risk factors, including substance abuse, but considered that he still posed risks of substance abuse, weapons use and instability of relationships.

60. Dr Martin diagnosed Mr Sutton’s main psychiatric issue to be substance misuse disorder and anti-social personality disorder, with problems of substance abuse, after consuming drugs both in custody and while on parole and experiencing psychosis while intoxicated with methamphetamine. Dr Martin considered that there was minimal evidence to suggest schizophrenia, or that Mr Sutton suffered an enduring mental illness of a psychotic nature.

61. Dr Martin considered that Mr Sutton’s highly problematic use of substances had to be seen in the context of problematic personality traits, of long standing, including a tendency to act recklessly and violently. Those psychological issues were likely to be enduring, but tended to improve with age and could be helped by use of medication.

62. Dr Martin concluded, nevertheless, that substance abuse was a major risk factor for Mr Sutton which had to be managed for the future. He posed risks of further serious violence, given his history; his predisposition to substance abuse; and his instability in relationships, accommodation and criminal peers, as well as his history of use of weapons.

63. Dr Martin identified some protective factors to be Mr Sutton’s motivation to engage in work; his acknowledgment of his past behaviour; and his engagement in therapeutic programs. The manifestation of the risks he posed was dependent on his abstention from drug use. Dr Martin also considered that his infractions during parole could not be ignored. There was also a risk that he would have difficulty in adhering to conditions of release and of future violence, with continued using drugs and alcohol.

64. Dr Martin agreed that the actuarial scales he referred to put Mr Sutton at high risk of future offending, even though he was currently stable, given the multiple risk factors present on his history. He considered that the proposed conditions would significantly mitigate those factors, while not ensuring abstinence, or preventing the materialisation of future violence. Dr Martin also considered that Mr Sutton required considerable support, including regular screening to ensure abstinence and that he could be assisted by the prescription of medication, to ensure alcohol abstinence.

65. Dr Martin considered a duration of three years for the conditions proposed to be reasonable, given Mr Sutton’s longstanding problems and the need to strike a balance with conditions imposed not being too onerous, but being able to be relaxed over that time.

66. Dr Martin also considered that Mr Sutton’s knowledge that he cannot abuse substances translating into future abstinence was difficult to ascertain and warranted significant restrictions, including ongoing screening.

67. Dr Ellis interviewed Mr Sutton on 5 June 2017. The personal and medical history he took was similar to that given to Dr Martin. Mr Sutton reported to Dr Ellis of having had enough with crime, feeling homesick and wanting to rebuild his relationship with his family; not having had aggressive thoughts for some years; last experiencing delusions and hallucinations in 2012, which he described; that he had learned to walk away and control his anger; and weigh the pros and cons of his decisions.

68. Dr Ellis noted Mr Sutton’s criminal history, beginning with convictions as a juvenile and having spent most of his adulthood behind bars. Dr Ellis also noted his account of the circumstance of his index offending.

69. Dr Ellis also noted Mr Sutton’s polite demeanour, with no evidence of thought disorder or depressive conditions or delusions. Mr Sutton, again, expressed a desire to continue medication and psychological treatment and abstain from drugs and alcohol on release.

70. Dr Ellis diagnosed Mr Sutton to be suffering antisocial personality disorder and substance use disorder, in early remission. He found no chronic psychotic symptoms or schizophrenia, but some short term memory impairment.

71. Dr Ellis also discussed the limits of current risk assessment techniques, making it impossible to predict whether someone would reoffend, but that it was possible to identify risk factors associated with violent reoffending. He also explained the risk assessment tool which he had used.

72. Dr Ellis considered that Mr Sutton’s history of problems with serious violence, beginning in childhood, accompanied with other persistent antisocial behaviour and history of domestic violence in relationships and serious substance abuse, associated with violence and psychotic symptoms, and failure on previous supervised conditional release, pointed to a high loading of historical risk factors, associated with violence in the longer term, when compared to the general prison population.

73. While Dr Ellis considered that Mr Sutton displayed some insight into his propensity for violence and need for treatment and management, with no evidence of psychotic mood or anxiety symptoms, his two releases on parole meant that sustained insight motivating long term change, was yet to be demonstrated.

74. Dr Ellis also discussed likely problems, including Mr Sutton engaging in treatment, but considered that potential reduction of violence with age to be relevant, although that had to be considered in light of his return to custody and supervision. In the absence of treatment, Dr Ellis also considered that Mr Sutton would fall into a group with a risk of violent offending which was statistically high in frequency, with potential for serious consequences.

75. Dr Ellis also considered that Mr Sutton’s chronic and severe substance abuse and quick return to alcohol abuse on release, made treatment with anticraving medication desirable, as well as treatment for addiction. He considered that residential rehabilitation was less likely to be of assistance in his case, however, given his personality disorder.

76. Dr Ellis also considered that the proposed conditions would generally address the risks which Mr Sutton poses, even though they could not eliminate those risks, but they would significantly reduce them.

77. Dr Ellis considered, however, that five years supervision of Mr Sutton to be reasonable, given that personality disorders are chronic relapsing conditions, resistant to treatment and rehabilitation efforts. 36 months was required to consolidate independent accommodation, maintaining stable mental state and regular activity in the community. A further 24 months of regular programmed activity and review of medication was also necessary. Mr Sutton’s personality disorders were chronic and Dr Ellis considered, likely to persist beyond any period of supervision, but they might by then be better internally controlled.

Why the term of the order had to be 3 years

80. In written submissions for Mr Sutton, reliance was placed on his completion of relevant treatment programmes, pursuit of maintenance programs and willingness to continue treatment on release, which Dr Martin considered to be part of an appropriate management plan and had been anticipated in Mr Elsayed’s November 2016 risk management report.

81. Mr Sutton conceded that substance and alcohol abuse was a significant factor in his ability to successfully rehabilitate and not to re-offend, but a direction that he complete a long term residential rehabilitation program was opposed, as being inappropriate. It was also submitted to be relevant that given his personality disorder, Dr Ellis considered that this type of intervention might be less effective.

82. That Mr Sutton was, however, open to medication to reduce the likelihood of using alcohol, which Dr Martin had suggested, was submitted to represent a significant and relevant change in attitude, on his part.

83. As to the length of the order, it was argued for Mr Sutton that it should be no more than 18 months, notwithstanding his recent problems when released on parole. That was because of the considerable additional support that he would receive, while under extended supervision.

84. It was argued to be relevant that both experts considered that some of his problems would reduce with age and that Dr Martin considered that medication currently prescribed would assist him. Further, that the risk factors identified by all of the experts would most likely arise in the shorter, rather than longer term and that his release into supported accommodation, was also significant. That would enable him to cope with the less structured environment outside of custody.

85. These matters, when considered with a significant change of attitude on Mr Sutton’s part, were submitted to establish that he was now much better placed to be able to cope on release into the community and to understand the need to avoid further offending.

86. It was also submitted that a shorter order would give Mr Sutton something to work towards and focus his efforts on and that it was also necessary to give consideration to the substantial inroad to his civil liberties, to which Mr Sutton was consenting, in order to protect the community: State of New South Wales v Scerri [2012] NSWSC 271 at [33].

87. In oral submissions the conclusion that an order of 18 months duration was appropriate was further urged, it being argued that risk, if they were to materialise would materialise quickly. 18 months was a sufficient time for Mr Sutton to demonstrate that further supervision was not required, particularly given his significantly changed attitude.

Why the order must have a 3 year term

88. In resolving what lay in issue as to the term of the order, the objects of the Act had to be borne in mind, concerned as they are both with need to ensure the safety and protection of the community and with the need to encourage high risk violent offenders, such as Mr Sutton, to undertake rehabilitation.

89. As the Crown submitted, the Court was not bound to resolve the issue which lay between the parties, by imposing either a term of 18 months or 3 years. On the evidence a term as long as 5 years could have been imposed. Despite this, I was satisfied that the term for which the Crown contended, should be imposed, understanding that would permit applications for variation to the order to be made, if that becomes necessary.

90. In Mr Sutton’s case it was not only the seriousness of the offending which has resulted in this application, which led me to this conclusion, but also his long record of violent offending; his longstanding mental health problems, which are both clearly connected with his serious problems with drug and alcohol abuse since childhood; and the resulting considerable risks which he undoubtedly presents, of further violent offending.

91. Those risks are exacerbated by the state of his mental health, the difficulty in treating them, which the experts discussed and Mr Sutton’s resulting need to persist with the medication which has assisted him to manage those conditions. The evidence unarguably established that he presents a considerable risk that on release from custody, he will again seek to resume his serious, longstanding, substance and alcohol abuse despite his present intentions. These considerations preclude the conclusion that supervision for a period of 18 months, will be sufficient, in his case

92. The fact that even on relatively recent releases on parole, despite how he presented when examined in 2008 by Dr Clarke, the programs Mr Sutton had undertaken in custody and his release to the residential treatment programs Murrell DCJ had borne in mind when structuring his sentence, he engaged in conduct consistent with the materialisation of the risks which he still now poses, after resuming drug use. Had that not been the case, a different view might now have been available.

93. When these matters were considered with Mr Sutton’s record, even in custody of drug abuse and on his final release on parole, together then with him absconding and being arrested after a police chase, while in company with another offender, it had to be concluded that not only the experts’ views about the considerable risks which he poses, but also that of the two psychiatrists, that he requires supervision for longer than the 18 months for which he urged, had to be accepted.

94. It was no longer proposed that Mr Sutton would live with his sister on release, that accommodation having been assessed to be unsuitable, given its location, the facilities available there and other identified concerns. He is again to reside at the Nunyara Community Offender Support Program. On the evidence, Mr Sutton’s residence there, subject to the proposed conditions for a period of 3 years, so that he can be assisted in abstaining from drugs, alcohol and a relapse into the violence he says he no longer wishes to pursue, will provide him with the prospects of rehabilitation and a future free of offending, which he has told those who have examined him, that he desires.

95. When that is considered together with what the evidence establishes that considerations of the safety and protection of the community requires, given the undoubtedly high risk of future serious violent offending which Mr Sutton now unarguably poses, the conclusion that the term of the order had to be 3 years, was unavoidable.

Orders

96. For these reasons I made orders in terms pressed by the State:

1. I order:

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

1. pursuant to s. 11 of the Act, directing that the defendant comply with the conditions set out in the Schedule for the duration of the extended supervision order.

“SCHEDULE OF CONDITIONS OF SUPERVISION

Eric Mitchell Sutton

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

*Any reference to DSO includes any other employee of CSNSW who may also supervise the defendant from time to time

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must accept the supervision of CSNSW until the end of the Order.

2.   The defendant must report to the DSO as directed by the DSO.

3.   The defendant must follow all reasonable directions by his DSO.

Electronic Monitoring

4.   If so directed, the defendant must wear electronic monitoring equipment and must not tamper with or remove such equipment;

5.   Upon commencement of electronic monitoring, if the defendant is not found guilty of any offence (of breaching his ESO or any other offence) for a period of 12 continuous months while in the community, the defendant is no longer required to wear the electronic equipment and the above condition will cease to apply;

6.   If, upon electronic monitoring being removed, the defendant is later found guilty of any offence, the DSO or any other person supervising the defendant is at liberty to reapply the condition requiring him to wear electronic monitoring equipment.

Schedule of Movements

7.   If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

8.   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

9.   The defendant must not deviate from his approved schedule of movements except in an emergency.

10.   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

11.   The defendant must live at an address approved by his DSO.

12.   The defendant must be at his approved address between 6am to 9pm unless other arrangements are approved by his DSO.

13.   The defendant must allow his DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

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

15.   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

16.   The defendant must not leave New South Wales without the approval of CSNSW.

17.   The defendant must surrender any passports held by the defendant to the Commissioner.

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

Part D: Employment, finance and education

19.   If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

20.   The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

21.   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol

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

23.   The defendant must submit to testing for drugs and alcohol as directed by his DSO.

24.   The defendant must not enter any licensed premises without the approval of his DSO.

25.   The defendant must attend and participate in programmes 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.

Part F: Non-association

Associations with Others

26.   The defendant must not associate with people that his DSO tells him not to.

27.   The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol.

28.   If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

29.   The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Weapons

30. 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.

31.   The defendant must not carry on his person, at any time after he has left his residence or place of employment, any knife or other cutting instrument unless permission has been granted in advance by the DSO.

Part H: Search and seizure

32.   If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:

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

b.   to monitor the defendant's compliance with this order; or

c.   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:

d.   search and inspection of any part of, or any thing in, the defendant's approved address;

e.   search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;

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

g.   search and examination of his person.

33.   For the purposes of the above condition:

a.   a search of the defendant means a garment search or a pat-down search.

b.   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.

34.   During a search carried out pursuant to condition 32 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:

a.   the safety of residents or of staff at the defendant's approved address;

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

c.   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.

35.   The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

36.   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 conditions 32 to 35 above.

Part I: Personal details and appearance

37.   The defendant must not change his name from "Eric Mitchell Sutton" or use any other name without the approval of his DSO.

38.   The defendant must not change his appearance without the approval of his DSO.

39.   The defendant must let CSNSW photograph him.

40.   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 J: Medical intervention and treatment

41.   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

42.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

43.   The defendant must take all medications that are prescribed to him by his healthcare practitioners.

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

45.   The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

46.   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.

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Decision last updated: 17 April 2018