State of New South Wales v Tina Lee (a pseudonym) (Preliminary)

[2023] NSWSC 693

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Tina Lee (a pseudonym) (Preliminary) [2023] NSWSC 693

Hearing dates:

15 June 2023

Date of orders:

15 June 2023

Decision date:

15 June 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

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

(b)    I direct the defendant to attend those examinations.

(2) Pursuant to ss 10A and 10C of the Act, the defendant be subject to an Interim Supervision Order for a period of 28 days from 14 July 2023.

(3) Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions as set out in these reasons which will be included in a schedule which will be attached to the written form of these reasons.

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

(5)    I direct the parties to provide to my Associate by 10am tomorrow, 16 June 2023, a schedule of conditions reflecting these reasons which will be annexed to the written form of these reasons.

Catchwords:

HIGH RISK OFFENDER – application for interim supervision orders – serious violence offence – interim supervision orders granted – conditions imposed largely similar in effect to those provided by the parole order

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 105

Children (Criminal Proceedings) Act 1987 (NSW) s 15A

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8(1)(a)

Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 4, 5A, 5B, 5D, 5I, 6, 7, 9, 10A, 11

Cases Cited:

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

Children (Criminal Proceedings) Act 1987 (NSW)

State of New South Walesv Bou-Antoun (Preliminary) [2022] NSWSC 513

State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432

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

State of New South Wales v Ryan [2023] NSWSC 236

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Tina Lee (a pseudonym) (Defendant)

Representation:

Counsel:
I Fraser (Plaintiff)
A Cook (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2023/132860

Publication restriction:

Order made pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW), that the defendant in these proceedings be identified by way of a pseudonym, that pseudonym being "Tina Lee.

EX TEMPORE JUDGMENT (REVISED)

1. His Honour: By summons filed on 24 April 2023, the plaintiff seeks an order that the defendant be subject to an extended supervision order (ESO) for a period of five years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Various conditions are sought as part of that order.

2. Prior to any final order being made, the plaintiff seeks interim orders as follows:

1. an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists and/or registered psychologists (or a combination of two such persons) to conduct separate psychiatric and/or psychological examinations and provide reports on the defendant, and a corresponding order directing the defendant to attend those examinations;

2. an order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order (ISO) for a period of 28 days; and

3. an order pursuant to s 11 of the Act that the defendant be subject to the conditions set out in the schedule to the summons during the currency of the ISO.

3. Ancillary relief is also sought to the effect that access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard as to the application.

4. The defendant opposes the granting of an ISO and opposes the proposed conditions to be attached to the ISO. There is no opposition to the orders sought restricting access to the court file. Having regard to the nature of the material filed on the application, I regard it as appropriate that the parties have an opportunity to be heard in the event access is sought by a non-party to the proceedings.

The evidence on the application

5. The plaintiff, on the application, read the affidavits of Sarah Najjar of 24 April 2023, 18 May 2023, 7 June 2023, and 15 June 2023, together with an affidavit of Jessie Slattery-McDonald of 8 June 2023.

6. The defendant read two affidavits of Melissa Smith dated 2 June 2023 and 15 June 2023 respectively. In addition, there was short oral evidence called by the defendant from Ms Ana Lemalu, who was a team leader with an organisation contracted to the National Disability Insurance Scheme (NDIS) that provides services to the defendant.

7. For the reasons that follow, I am of the view that an ISO should be made, but would not impose all the conditions sought in the summons.

Pseudonym order

8. As a preliminary matter, the defendant seeks a pseudonym order in respect of the defendant's name pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW). It was submitted on behalf of the defendant that, pursuant to s 8(1)(a), "the order is necessary to prevent prejudice to the proper administration of justice". The plaintiff did not oppose the making of such an order.

9. The material relied upon by the plaintiff includes various documents that refer to criminal proceedings before the Children's Court. Further, the material relied upon by the plaintiff includes various documents that refer to care proceedings before the Children's Court and identify the defendant as a person who was a "state ward", that is, a person in the care of the relevant minister.

10. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) respectively apply, without further order of the Court, to prohibit publication or broadcasting of the name of the defendant in any way that would identify her in relation to those matters. In order to give effect to those two provisions, I am satisfied that it “is necessary to prevent prejudice to the proper administration of justice” that an order for a pseudonym be made. The defendant will be identified by the pseudonym “Tina Lee”.

The legislative scheme

11. The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3].

12. The objects of the Act are set out in s 3:

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.

13. Section 9(1) of the Act provides that this Court may determine an application for an ESO by making an order or dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO "the safety of the community must be the paramount consideration". It follows that ESOs are, in their nature, protective and not punitive: Attorney-General for New South Wales ) v Tillman [2007] NSWCA 119 at [5] (“Tillman”).

14. Section 7(3) of the Act requires a preliminary hearing into the application be conducted within 28 days of the filing of the application. Section 7(4) provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing the relevant experts to conduct examinations and furnish reports to the Supreme Court (and directing the defendant to attend those examinations). If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order, I must dismiss the application: s 7(5).

15. Section 10A provides:

10A   Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court—

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

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

16. It is to be noted that s 7(4) mandates the making of certain orders if the relevant test is satisfied, while s 10A provides the additional requirement in s 10A (a) and, by the use of the word "may", a discretion as to whether an order will be made: see Tillman at [32]. Otherwise, both provisions provide for the same threshold, that is, "that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order". That test draws attention to the central provision with respect to ESOs, s 5B, which provides:

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.

17. Section 5D further clarifies the test in s 5B by providing that the Court is "not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence".

18. The expression "supporting documentation" in ss 7 and 10A is defined in s 4 to mean the documentation referred to in s 6(3). That subsection provides that an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act and a report prepared by a qualified psychiatrist, registered psychologist, or registered medical practitioner that assesses the likelihood of the offender committing a serious offence.

19. The test thus requires satisfaction that the “matters alleged in the supporting documentation would, if proved, justify” a positive finding with respect to each of the matters in s 5B. The “matters alleged in the supporting documentation” does not include material put before the Court by the defendant said to cast light on the matters alleged, and I am accordingly not allowed to consider any such material in applying the test in s 7(4) of the Act: see State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432 at [16]-[21].

Factual background

20. The defendant is 57 years old. She is an Aboriginal woman, originally from Moree. The defendant has a history of complex trauma. She grew up on an Aboriginal settlement outside of Moree, where she witnessed both her parents drink heavily. As a result of this, the defendant was neglected as a child and was brought up by her siblings. At around the age of 5 or 6, the defendant lost her right eye in an accident and a glass eye as a replacement, something she was self-conscious about. In 1975, when the defendant was around the age of 9, she was fostered, and a few years later, age 13, she became a ward of the state upon being declared an “uncontrollable child” by the Children’s Court. She began drinking alcohol and using cannabis as a teenager and left school at the age of 14. The defendant has a long history of abusing alcohol and illicit drugs.

21. The defendant was committed to an institution by the Moree Petty Sessions in 1980, and in the same year her father passed away. Her mother passed away in 2008, but the defendant was unable to attend the funeral as she was in custody.

22. The defendant has never held employment and has been supported by welfare payments, including the disability support pension. She gave birth to her son in 1985.

23. The defendant has a long criminal history. Between 1979 and 2001, the defendant committed a number of minor dishonesty offences and less serious offences of violence. The offences involving violence include an offence of common assault and malicious damage in 1986 and two counts of assaulting a police officer in 1999.

24. In 2001, then aged 35, the defendant committed the offence of murder. This offence occurred in the following circumstances. On 3 March 2001, the defendant entered a shop and was seen to move towards the counter. The deceased was standing behind the counter. There was apparently some form of argument, and the accused was seen gesturing towards the deceased whilst holding a knife. The defendant was seen to be close to the deceased, with her arms moving towards him. The deceased had his arms up towards the defendant, in apparent resistance. As a result of the defendant's actions, the deceased suffered a stab wound which penetrated his heart, leading to his death. He also suffered some defensive wounds to his arm.

25. At a hearing in 2003, the defendant was found unfit to be tried and a special hearing took place, at which she was found to have committed the act of murder. A limiting term of 17 years was fixed.

26. In 2013, the Mental Health Review Tribunal found the defendant was fit to be tried and, following a plea of guilty, the defendant was ultimately sentenced to a period of 17 years with a non-parole period of 12 years and 9 months, to date from 3 March 2001, the date she had entered custody.

27. The defendant appealed to the Court of Criminal Appeal against the severity of that sentence. Her appeal was heard on 14 April 2016 and she was, on that day, re-sentenced to a sentence of 15 years with a non-parole period of 11 years and 3 months. The unusual history of the matter had the result that the sentence had, by the date of the hearing and orders in the Court of Criminal Appeal, expired and the defendant was consequently released immediately without any supervision.

28. Having been released on 14 April 2016, just under three months later, on 10 July 2016, the defendant committed the offence of wounding with intent to cause grievous bodily harm. I pause to note that this is a serious offence for the purposes of the Act and, in particular, the requirement in s 5B(a). I note the offence of murder is, unsurprisingly, also such an offence. The offence of wounding with intent to cause grievous bodily harm took place in a unit in Waterloo on 10 July 2016. On her release from custody for the murder offences, the defendant had no stable accommodation, having spent the previous 15 years in custody. The defendant and the victim had been known to each other since childhood. The defendant had been at the unit since the previous evening when she had apparently taken methamphetamine. There was an argument between the victim and the defendant as the defendant had been told that the victim had stolen money from her. The defendant stabbed the victim with a knife in the abdomen. The defendant left the scene and was arrested some days later.

The sentence

29. The defendant pleaded guilty to the July 2016 offence. On sentence, Baly SC DCJ found that the defendant's moral culpability was significantly reduced as a result of her “gross deprivation” and social disadvantage. Her Honour also found that the need for general deterrence was greatly reduced by reason of the defendant's intellectual disability. Against this, her Honour found the defendant posed a potential danger to the community, finding that “there is a substantial risk that [the defendant] will commit another violent crime against a member of the community”, although her Honour also noted it was possible that the risk could be mitigated. The defendant was sentenced to imprisonment for 7 years with a non-parole period of 3 years and 6 months. The sentence was ordered to date from 14 July 2016. The significant adjustment to the statutory ratio was on the basis that it was “an exceptional case that calls for a significant and unusual departure from the statutory ratio”.

Progress in custody

30. While in custody, the defendant has also committed a number of offences of assaulting a correctional officer, one during the currency of the sentence relating to the murder and also during the current sentence, on 19 June 2021, 31 January 2022, 12 February 2022, and two offences on 15 September 2022. The last of those offences included a threat to stab the victim. The defendant’s progress in custody was such that she was not released at the expiry of her non-parole period in January 2020. She was, in fact, not released to parole until 5 June 2023, that is, just ten days ago. By that point, the defendant had a little more than one month to go before the expiry of her sentence on 13 July 2023. The defendant's release to parole at that point, at least in part, acknowledged her successful completion of a number of programs in gaol and her apparent motivation to succeed in the community through positive attempts at rehabilitation. That said, her release also appears to have had a good deal to do with the limited period remaining on her sentence during which time she could be supervised on parole.

Assessment of risk

31. In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the factors set out in s 9(3) of the Act, in addition to the safety of the community, which, as I have already noted, is, pursuant to s 9(2), the paramount consideration.

The reports received from persons appointed under s 7(4) to conduct examinations of the offender and the level of the offender’s participation in any such examination, s 9(3)(b)

32. This being a preliminary hearing, no such persons have yet been appointed.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner

33. Most relevant in this context is the risk assessment report (RAR) prepared by Mr Sam Ardasinski, senior psychologist in the Serious Offenders Assessment Unit of the Department of Corrective Services. Mr Ardasinski's report is dated 29 August 2022. There is additionally a supplementary report dated 20 April 2023.

34. The RAR was completed after an interview with the defendant of approximately 75 minutes on 26 August 2022. Mr Ardasinski noted that the defendant's psychiatric diagnosis remained unclear but that recent reports have consistently concluded that there is no evidence of a psychotic disorder or a major mood disorder. Mr Ardasinski thought that the defendant's presentation could be explained by a diagnosis of complex post-traumatic stress disorder. He noted that there has been consistent agreement that the defendant suffers from an intellectual disability.

33. Mr Ardasinski conducted a number of risk assessments and also reviewed previous risk assessments. Overall, the defendant was assessed by Mr Ardasinski as being “an overall high risk of violent reoffending relative to other violent offenders”. Mr Ardasinski set out a number of dynamic factors and secondary risk factors that he considered relevant. The primary factors identified were substance abuse, impulsivity, interpersonal aggression, emotional control (lack thereof), poor compliance with supervision, and violence during institutionalisation. Secondary factors included the defendant's background of complex trauma and her resulting view of the world as a dangerous place, the defendant's opportunistic use of knives as a weapon, and what I would summarise as a failure by the defendant to take responsibility for her violent actions.

34. On the positive side, Mr Ardasinski noted that the defendant has begun a process of change and is in the “contemplation” stage of change, that is, she knows she needs to change something but is yet to make observable changes. Mr Ardasinski noted that the defendant has been approved for a support package through the NDIS. It was also noted that there is family support, but it was suggested this may not necessarily assist the defendant in her rehabilitation.

35. Mr Ardasinski noted a risk of a serious violent offending should the defendant return to substance abuse. He noted that her world view, resulting from her background, leads her to seeing threat and challenge more readily than others, and this has the potential to trigger a violent act. Mr Ardasinski noted that the defendant has set up support structures with government and non-government agencies but cautioned that these are voluntary services. He also noted that the defendant appeared "genuine in her resolve to remain drug-free and offence-free in the future, and to avoid a return to prison", but cautioned:

“The evidence before me suggests that [the defendant] may live in the community without regard to her potential risk of serious reactive violence, and any return to drinking and/or drug use in the community could pre-empt a high-risk situation from which spontaneous violence may be an unintended result, especially if [the defendant] feels threatened or provoked.”

38. Mr Ardasinski maintained his concerns in his supplementary report and said:

“I consider it statistically likely that [the defendant] would reoffend violently with a serious offence if not made subject to an order mandating some form of supervision in the community.”

39. He continued:

“Specific treatment and supervision would likely reduce this risk, with the risk factors identified needing the most attention in her reintegration.”

40. I have also had regard to the report of Monika Gubarewski, acting senior psychologist, Statewide Disability Services. The report is not dated, but it appears to have been prepared for a NDIS assessment, and I infer in that context the report is relatively recent. The report notes that a test in 2009 put the defendant's intellectual functioning in the 0.4th percentile (that is, 99.6% of the population functions above her level). Importantly, for present purposes, the defendant was assessed as having "limited capacity to understand concepts such as future events or consequential thinking" and that "this is likely to result in difficulty modifying her behaviour based on future consequences".

41. I have additionally had regard to the report of Dr Richard Furst, forensic psychiatrist, dated 3 August 2018. Dr Furst diagnosed the defendant as suffering from an antisocial personality disorder and a paranoid personality disorder and also reported symptoms consistent with an anxiety disorder.

42. Dr Furst noted the defendant to have fundamental deficits in temperament, cognitive capacity, coping skills, and emotional self-regulation. He recommended referral for drug and alcohol counselling. Reports were also before the Court from Dr Kiernan Dorney, psychiatrist, who has seen the defendant on a number of occasions as her treating psychiatrist. He prepared reports dated 25 November 2020, 21 March 2022, 29 September 2022, 27 October 2022, and 22 December 2022. His assessment is that the defendant does not present with a primary psychotic disorder but “likely has maladaptive personality traits on a background of significant developmental trauma”. He also diagnosed her with substance abuse disorder in remission.

43. There is additionally a report from Dr Gordon Elliott, consultant psychiatrist with Justice Health, dated 27 April 2021. His opinion is consistent with Dr Dorney and Dr Furst in that he was not satisfied the defendant suffered from a psychotic illness. He also noted the history of substance abuse disorders and the existence of a personality disorder.

The results of any statistical or other assessment: s 9(3)(d)

44. A number of risk assessments have been conducted. Most recently Mr Ardasinski in his RMR assessed the defendant on the violence risk scale as a "relatively high risk" of committing further violent offences. He noted the tool did not measure against "serious violent offences" as defined by the Act. He also noted caution in the reliability of the tool, as applied to the defendant, and observed that the assessment flagged several outstanding risk factors which remain of concern.

45. Other assessments are somewhat older and perhaps less useful. Those assessments gave the defendant a score ranging from a moderate to a high risk for violent re-offending.

Any report prepared by Corrective Services New South Wales as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

46. I have regard to the RMR prepared by Ms Susan Page. The RMR notes that the defendant is “a current [NDIS] participant due to her intellectual disability” and that “the NDIS would be instrumental in securing [the defendant] supported accommodation for her release”. The report indicated that a suitable address had been identified and I understand she has been paroled to, what I assume is, that address.

47. The RMR sets out a proposed supervision plan for the defendant if she were to be the subject of an order. It indicates the strategy would include the use of a reporting centre in Redfern, which provides an alternative contact structure with Community Corrections, more sympathetic to indigenous clients. I note that the defendant's current parole excludes her from Redfern. It may be, if an order were to be made, it could be in terms which would allow her to utilise this service without creating undue risks through the defendant's unsupervised attendance at a location which has been flagged as a concern.

48. Also proposed is a referral to the Aboriginal Community Engagement Cultural Officer to provide advice and support to the Departmental Supervising Officer (DSO) regarding supervision and case planning in a culturally sensitive manner. The RMR recommended the following conditions be imposed on an ESO:

1. electronic monitoring: the RMR recognises that the defendant may feel that electronic monitoring is oppressive and that her trauma history may make wearing electronic monitoring equipment "triggering and distressing to her". Despite this, electronic monitoring is suggested as a means of ensuring the defendant's movements are accurately monitored;

2. accommodation and curfew;

3. conditions prohibiting use of alcohol and other drugs including drug testing;

4. conditions restricting association with others;

5. search and seizure;

6. prohibited weapons;

7. restrictions on access to the internet and other electronic communications;

8. placed on travel restrictions;

9. employment and education;

10. personal details and appearance; and

11. medical intervention and treatment.

49. Referral to a specialist psychologist for individual risk management and support from a multidisciplinary team to oversee the defendant's mental health is also proposed.

Any treatment or rehabilitation programmes in which the offender has had an opportunity to participate; the willingness of the offender to participate in any such programmes and the level of the offender's participation in any such programmes: s 9(3)(e)

50. The defendant has had some false starts in treatment programmes but has, in more recent years, achieved some success as follows:

1. EQUIPS foundation completed 6 April 2020;

2. EQUIPS addiction completed 11 June 2020; and

3. EQUIPS aggression completed 30 April 2021.

51. I note with respect to this course the defendant originally commenced the programme in October 2020 and was removed within two weeks due to poor behaviour, which resulted in her being placed in segregation. The defendant recommenced the course in February 2021.

52. Over the past year the defendant has also engaged in individual psychological intervention with a Corrective Services psychologist.

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: s 9(3)(e1)

53. The defendant has assistance available to her through the NDIS. She was assessed and a recommendation for one-to-one support was made. Subsequently, she was unsuccessful in her application for supported independent living. It is unclear on the evidence precisely what that would have entailed but I understand it would have involved a greater level of assistance including potentially the assistance of persons staying overnight.

54. The current NDIS plan provides funding for the following:

1. Assistance with self-care activities (at 5 hours per day);

2. flexible support to explore and participate in community-based activities;

3. occupational therapy to assist with mobility and everyday living skills;

4. travel training;

5. up to 60 hours specialist behaviour intervention support;

6. 30 hours behaviour management plan, including training and behaviour management strategies; and

7. support co-ordination including 60 hours of specialist support co-ordination.

55. I note the defendant received the benefit of 24-hour support for the first week of her release upon her parole on 5 June 2023. This 24-hour support expired yesterday.

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(3)(e2)

56. There is, given the defendant's history, a real risk of a breach of any order. The defendant opposes the order. She is, in particular, highly resistant to the electronic monitoring to the extent of threatening self-harm.

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 earlier extended supervision order or pursuant to child protection supervision: s 9(3)(f)and (g)

57. The defendant has not been subject to parole since the time of the murder in 2001, nor has she been subject to child protection supervision.

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: s 9(3)h

58. The salient features of the defendant's record have been discussed.

The views of the Sentencing Court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1)

59. As already noted, Baly DCJ found that there is a substantial risk that the offender will commit another violent crime against a member of the community, although her Honour noted that that risk could potentially be mitigated.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(5)

60. A large volume of material was tendered on this application. That which most directly bears on the application has been discussed.

Determination

Would the matters alleged in the supporting documentation if proved justify the making of an order?

61. I approach this test on the basis already discussed. There is no issue, based on the matter alleged in the supporting documentation, that the defendant satisfies s 5B(a), that is, she is an offender as defined in s 4A and has served a sentence of imprisonment by way of actual custody for a "serious offence" as defined in ss 4 and 5A.

62. The offences committed by the defendant in 2016 and 2001 both fall under the definition of a "serious offence". I am further satisfied that the defendant is a "supervised offender" within the meaning of s 5I as required by s 5B(b) and an application has been made in accordance with s 5I (as required by s 5B(c)).

63. As subsections 5B(a), (b) and (c) are satisfied, the question for resolution is the test in s 5B(d) read together with s 10A, that is, whether I am satisfied that the matters alleged in the supporting documentation would if proved justify the Court's satisfaction 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.

64. I have regard to the various matters set out above. In resisting the order, the defendant pointed to the existence of the parole order and additionally to the support provided to the defendant by the NDIS. The short answer to this submission is that the parole supervision will expire on 13 July 2023 and the NDIS support is designed to assist the defendant manage in the community rather than to manage the risk.

65. With respect to the NDIS, I can accept that the assistance provided has the potential to reduce risk, but this is not the direct target of that assistance. Perhaps more significantly, there is no obligation on the defendant to accept the support available from the NDIS. Potential conflict with support workers could lead to this occurring. Mr Ardasinski's opinion is that, having regard the voluntary nature of the NDIS assistance, without the oversight of Community Corrections it is likely the defendant will soon after release return to substance use and involve herself in risky situations with the consequent risk of the commission of a serious offence.

66. With respect to parole, at the time that parole will expire, the defendant will have been in the community for a little over one month. In the context of the defendant having been in custody almost continually since 2001, that is a period in excess of 20 years, the period on parole is very short indeed.

67. It is particularly short having regard to the circumstances of the defendant. While she is not to blame for her background, and indeed that background is one that necessarily attracts some sympathy, that background on the material available suggests that the defendant will require considerable support and guidance in the community.

68. Conversely, the prospect of the defendant attempting to manage without some mandatory form of supervision, having spent a lengthy period in gaol, raises a real concern with respect to the potential for serious violent offending, as occurred in 2016. This is additionally to be seen in the context of the defendant's time in gaol. Not only has that time been long but it has not followed the common progression from maximum security to medium and then minimum security. This is, at least in part, related to consistent charges of internal misconduct, of which there are in excess of 50, the defendant continuing to accrue such charges through 2022 and into 2023. In women's prisons the security classifications range from 4 (maximum) down to 1 (minimum). The defendant has not progressed beyond Category 3.

69. The transition for the defendant into the community can be expected to be significantly more difficult than would have been the case had she progressed to lower security environments and had the benefit of release programs designed to facilitate the transition from gaol to the community.

70. I am satisfied that the matters alleged in the supporting documentation would if proved justify the Court's satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

Conditions

Appropriate Conditions

71. Section 11(1) of the Act provides that an ISO/ESO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". An inclusive list of directions which may be given is then set out at s (11) (1)(a)-(n).

72. Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services. The power to impose conditions is constrained by the scope of the Act: see Winters v Attorney-General (NSW) [2008] 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act.

73. Having noted the above matters, Hoeben CJ at CL (as his Honour then was) in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said at [44]:

“Important principles to be considered in relation to the imposition of conditions are:

(i)   having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83];

(ii)   in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68];

(iii)   a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36];

(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].

(v)   conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38].

(vi)   conditions must not be unjustifiably onerous or punitive, “nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855.

(vii)   conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) at [36].

(viii)   to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131].

74. The conditions should be framed with these factors in mind.

75. In the present case, while of the view that an order is appropriate, I am not of the view that conditions which are significantly more onerous than the current parole order should be imposed. I would consequently not include conditions such as the condition for electronic monitoring.

76. There is something of a paradox if, pursuant to an ISO which contains no element of punishment, the defendant is subject to more stringent conditions than are imposed while that person was actually serving a sentence reflecting punishment for a criminal offence. However, I accept that the Act must be applied on its own terms and not based upon conditions arising from a different regime.

77. In the particular circumstances of this case, there does seem to me to be definite advantages to a less stringent regime. In his RMR Mr Ardasinski said, while suggesting further incarceration was likely to be counterproductive, that:

“It is also likely that [the defendant] would fail rapidly upon release if made subject to stringent community based supervision if her poor response to custody based supervision and support is an effective gauge of her likelihood to comply with conditions restricting her liberty."

78. Given this, and having regard to the more recent progress made by the defendant and the motivation shown by her towards the end of her time in custody, there is, in my view, significant benefit in her seeing some reward for those efforts. A seemingly, if not actually, punitive approach carries the real risk in my mind that the defendant will be discouraged in her efforts. Encouragement of the defendant and her ultimate rehabilitation will, of course, promote community safety.

79. I am consequently of the view that the appropriate conditions should be largely similar in effect to those provided by the parole order. The conditions will be drafted with greater specificity for the purposes of clarity and, to the extent appropriate, to avoid the provision of a broad and unfettered discretion in the DSO: see State of New South Wales v Ryan [2023] NSWSC 236 at [11].

80. I turn then to the particular conditions proposed in the schedule to the plaintiff's summons. I adopt the various definitions set out in that schedule.

Part A: Reporting and Monitoring Obligations

81. The conditions set out in Part A, in particular conditions 1 through to 4, in my view, are appropriate in order to provide supervision of the defendant.

82. Condition 5, which proposes electronic monitoring, is not appropriate and will not be imposed. Electronic monitoring was specifically sought by the State as part of the parole conditions, but the State Parole Authority refused to impose such a condition. The defendant is particularly concerned, as I have indicated, about the prospect of electronic monitoring. This is an area where I consider there is a danger of discouraging the defendant in her efforts by the imposition of a condition that she will view as unfairly harsh.

83. Conditions 6 through to 8 relate to the provision of a schedule of movements. These are similarly conditions that appear to be more onerous than those which currently apply under the parole order. The level of planning proposed, that is, a weekly plan provided three days before it is due to start, is, in my view, a significant burden, particularly in the context of someone in the position of this defendant. Her capacity to consider matters ten days ahead is likely quite limited. More significantly, the defendant is expected to be in receipt of daily assistance through the NDIS. It is anticipated that, through the provision of the five hour per day assistance she is expected to receive, the DSO will be in a position to receive regular updates on her proposed activities.

Part B: Accommodation

84. Condition 9 is in my view appropriate.

85. Condition 10 relates to a curfew. Whilst that imposes a not insignificant restriction on the defendant, I do regard it as appropriate in order to seek to embed some routine and stability. It will also provide a significant timeframe when the DSO will be able to guarantee contact with the defendant.

86. Conditions 11 through to 13 are, in my view, appropriate in order to ensure maintenance of the address and persons having access to it.

Part C: Place and Travel Restrictions

87. Condition 14 seeks the surrender of any passport. In the circumstances of this case, overseas travel does not appear to be a realistic possibility and the condition is unnecessary and I will not impose it.

88. Condition 15 is a mandatory condition under the Act and will be imposed.

89. Condition 16 has potential benefits as a result of there being areas of concern with respect to the defendant. On the other hand, those areas of concern, particularly Redfern and Waterloo, also have potential to provide positive supports and interaction. An appropriate form of condition 16 is in my view the following:

“The defendant must not frequent or visit any place or district specified by a DSO unless in the direct company of a person approved by the DSO for this purpose.”

Part D: Employment Finance and Education

90. It is, in my view, appropriate that there be some ability to monitor and control the defendant’s activities, including any work or education but would not impose restrictions in the form proposed. In my view, the appropriate form of condition is as follows:

“The defendant must inform a DSO of her having commenced any job, volunteer work, or educational course within 24 hours of her having done so.”

91. In the light of that condition, I do not see condition 18 as being required.

92. With respect to condition 19, there is a question as to a need for such a condition having regard to the potential for guardianship orders, however, those orders have not yet been made. The fact of that potential indicates the concerns with respect to the defendant’s capacity around her financial affairs. In the circumstances, in my view, condition 19 is, at least at this time, appropriate.

Part E: Drugs and Alcohol

93. Conditions 20 through to 24 are, in my view, appropriate. I note that condition 23 is a condition imposing a not insignificant restriction on the defendant, however, at this early stage of the defendant’s reintegration into the community, such a condition is, in my view, called for.

Part F: Non-Association

94. Condition 25 is appropriate and, indeed, consistent with the current parole order.

95. Additionally, in my view, again at least at this early stage, condition 26 is appropriate. Insofar as any of the paragraphs in condition 26 may impact the defendant associating with family, I would expect the DSO to approach the matter sensitively.

96. Condition 27 would require the defendant to agree to the DSO disclosing her criminal history to another person if the disclosure is reasonably necessary. The need for such a condition is not as acute in this case as in perhaps some other cases, but I do accept that there may be circumstances which could arise which would warrant such a condition and it should be imposed. I impose condition 27.

97. Condition 28 in my view is not necessary. The level of supervision of the defendant will be sufficient to ascertain any such associations. There is nothing in the defendant's background that suggests that a particular condition such as this is warranted.

Part G: Weapons

98. Having regard to the defendant's history, condition 29 is appropriate.

Part H: Access to the Internet and Other Electronic Communication

99. The relevance of these conditions to the defendant is limited to her communications and what that might reveal about her associations. In the circumstances, in my view, it is sufficient to impose a single condition in the following terms:

“The defendant must obey any reasonable direction given by a DSO in order to facilitate access by that DSO to any device used by her for the purposes of communication.”

Part I: Search and Seizure

100. Again, I acknowledge the intrusive nature of the conditions sought, but, particularly at this early stage of the defendant's reintegration, it is my view that some power of search is appropriate, albeit not in the terms sought, which are, to a large extent, not relevant to the defendant. In my view, the following condition in place of condition 35 is sufficient:

“The defendant must submit to the search of any item or place in her possession or under her control including her residence.”

101. Condition 36 is ancillary to the search power and is appropriate.

Part J: Personal Details and Appearance

102. The defendant’s background is not such that I would regard there to be any risk of the defendant seeking to recast her identity or appearance so as to circumvent the order. I would not impose the conditions sought in part J.

Part K: Medical Intervention and Treatment

103. In my view, condition 41 is appropriate. It will assist the defendant with respect to her rehabilitation and ultimate reintegration into the community.

104. Similarly, condition 42 is appropriate.

105. I do not regard condition 43 as appropriate and would not impose that condition. The primary difficulty I see in requiring the defendant to agree to her treatment and service providers sharing information with either each other or, more particularly, with the DSO, is that it will inhibit the defendant in her otherwise frank discussions with those persons and, in turn, potentially inhibit the assistance she is able to receive. If the defendant is inhibited in her interactions with such service providers this has the clear potential to impact on her rehabilitation. In those circumstances, I do not regard it as appropriate that condition 43 be imposed.

106. The defendant's sentence concludes on 13 July 2023. Given that, and the existence of the parole order up until and including that date, the ISO should commence on 14 July 2023: see State of New South Wales v Bou-Antoun (Preliminary) [2022] NSWSC 513 at [84].

Orders

107. I make the following orders:

1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

1. I appoint two qualified psychiatrists and/or registered psychologists or any combination of two such persons to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the result of those examinations by a date to be fixed.

2. I direct the defendant to attend those examinations.

2. Pursuant to ss 10A and 10C of the Act, the defendant be subject to an Interim Supervision Order for a period of 28 days from 14 July 2023.

3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions as set out in these reasons which will be included in a Schedule which will be attached to the written form of these reasons.

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

5. I direct the parties to provide to my Associate by 10am tomorrow, 16 June 2023, a Schedule of Conditions reflecting these reasons which will be annexed to the written form of these reasons.

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State of NSW v Tina Lee - Schedule of Conditions (184106, pdf)

Decision last updated: 22 June 2023