State of New South Wales v Weribone

[2016] NSWSC 1046

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Weribone [2016] NSWSC 1046
Hearing dates:	26 July 2016
Date of orders:	26 July 2016
Decision date:	29 July 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):      a. Dr Jeremy O’Dea, a forensic psychiatrist, and Mr Patrick Sheehan, a forensic psychologist, are appointed to conduct separate examinations of the defendant.      b. The defendant is directed to attend the examinations to be conducted by Dr O’Dea and Mr Sheehan.      c. The experts are to furnish their reports to the Court on the results of their respective examinations by close of business on 29 August 2016. 2. The plaintiff is to file and serve any evidence and submissions upon which it proposes to rely by 12 September 2016. 3. The defendant is to file and serve any evidence and submissions upon which he proposes to rely by 26 September 2016. 4. The matter is listed before the Duty Judge on 29 August 2016 for consideration of an extension of Order 5. 5. Pursuant to s 10B of the Act, the defendant is to be subject for a period of 28 days to a high risk violent offender interim supervision order, to commence on 3 August 2016. 6. Pursuant to s 11 of the Act, I direct that for the period of the interim supervision order, the defendant comply with the conditions set out in the Schedule to this Summons. 7. I make an order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) or health care practitioner(s). 8. The matter is to be listed for hearing on 12 October 2016 for final determination of the Summons, with an estimate of one day. 9. Liberty to restore the matter on three days’ notice. 10. The defendant is personally excused from attending on 29 August 2016 on the basis that he is legally represented on that day.
Catchwords:	CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violent offender - preliminary hearing – appointment of experts to conduct psychiatric examination
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	AW v R [2010] NSWCCA 249 Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Archie Weribone (Defendant)
Representation:	Counsel: I Fraser (Plaintiff) M Johnston SC (Defendant)   Solicitors: Crown Solicitor’s Office (NSW) (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2016/206202
Publication restriction:	None

Judgment

1. Archie Weribone is a young man who has experienced much disadvantage in his life. He is also a man who has a history of committing violent crime. He is presently serving the non-parole period of a sentence imposed upon him for an offence of assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act 1900 (NSW).

2. By Amended Summons filed with leave on 26 July 2016, the State of New South Wales seeks an order for his continuing detention pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

3. The matter came before me on 26 July 2016 at a preliminary stage of the proceedings, as provided for by s 15(3) of the Act, to determine the State’s application for an interim detention order or, alternatively, an interim supervision order, together with other orders, including for the appointment of a psychiatrist and a psychologist to examine the defendant and report the results of those examinations to the Court.

4. At the conclusion of the initial hearing, I made an order for Mr Weribone’s interim supervision in the community, with that order to take effect upon the defendant being released to parole on 3 August 2016.

5. These are the reasons for the orders I made.

The Application

6. By its Amended Summons, the State seeks the following orders:

Expert reports

An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

Appointing two qualified psychiatrists, or one qualified psychiatrist and one registered psychologist, to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

Directing the defendant to attend those examinations.

Interim detention

An order pursuant to section 18B of the Act that the defendant be subject to an interim detention order commencing immediately from 3 August 2016 for a period of 28 days.

An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.

Continuing detention order

An order pursuant to section 17(1)(b) of the Act that the defendant be the subject of a high risk violent offender continuing detention order for a period of 18 months from the date of the order.

An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified in paragraph 4 above.

Extended supervision order

An order pursuant to section 17(1)(a) of the Act, that the defendant be subject to a high risk violent offender extended supervision order for a period of 3 years commencing immediately upon the expiration of the high risk violent offender continuing detention order and, pursuant to section 11 of the Act, a direction that the defendant comply with the conditions set out in the Schedule to this Summons.

Alternative relief

In the alternative to paragraphs 2 and 3 above, an order pursuant to section 10B of the Act, that the defendant be subject to a period of 28 days to a high risk violent offender interim supervision order commencing immediately from 3 August 2016, and pursuant to section 11 of the Act, a direction that for the period of the interim supervision order, the defendant comply with the conditions set out in Schedule to this Summons.

In the alternative to paragraphs 4, 5 and 6 above, an order pursuant to section 17(1)(a) of the Act, that the defendant be subject to a high risk offender extended supervision order for a period of 5 years from the date of the order and, pursuant to section 11 of the Act, a direction that the defendant comply with the conditions set out in the Schedule to this Summons.

Access to court file

An order that access to the Court’s file by a non-party in respect of any document shall not be granted without the prior notification to the parties of the non-party’s application for access and without leave of a Justice of the Court.

An order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) or health care practitioner(s).

7. Only prayers 1, 2, 3, 7 and 10 were pressed at the preliminary hearing.

The Factual and Statutory Background to the Application

8. The defendant was born in February 1993 and is now 23 years old.

9. His history of committing crimes of violence is the basis upon which the State asserts that he is a violent offender who poses an ongoing risk to the community such that his continuing detention is necessary.

10. The defendant’s first encounter with the criminal courts came when he was 11 years old, and appeared before the Broken Hill Children’s Court charged with offences of break enter and steal, and larceny of a motor vehicle. Control orders were imposed upon him at first instance, although those sentences were quashed on appeal and, in lieu, bonds with supervision were imposed, pursuant to s 33(1)(B) of the Children (Criminal Proceedings) Act 1987 (NSW).

11. For similar offences committed within days of his first set of crimes the defendant also received, ultimately, further supervised bonds.

12. There followed regular appearances before the Children’s Court in Broken Hill throughout each of 2004, 2005, and 2006, for offences including break enter and steal, larceny, shoplifting, property damage, entering inclosed lands, having custody of a knife in a public place, having goods in custody, possessing implements, affray and taking and driving a conveyance.

13. The sentences imposed upon the defendant for these crimes were most frequently supervised bonds, although control orders were also imposed.

14. In August 2007 the defendant was before the Parramatta Children’s Court charged with an offence of violence, being common assault. A control order was imposed. Further violent offences followed, together with numerous offences of dishonesty.

15. In August 2009 the defendant made his first appearance before the District Court to be dealt with at law, having pleaded guilty to an offence of specially aggravated break and enter with intent to steal, with wounding, contrary to s 113(3) of the Crimes Act.

16. The defendant was sentenced in the District Court at Penrith to a term of imprisonment for 3 years and 9 months, to date from 2 January 2009, with a non-parole period of 2 years specified. The sentence was to be served in juvenile detention. An appeal against severity of sentence to the Court of Criminal Appeal was dismissed: AW v R [2010] NSWCCA 249.

17. After his release to parole, the defendant’s frequent appearances before the criminal courts continued, for offences of dishonesty, but also for offences of violence.

18. In May 2012 the defendant was sentenced before the Parramatta District Court to a further term of imprisonment of 3 years, this time as an adult, for an offence of recklessly cause grievous bodily harm in company contrary to s 35(1)(a) of the Crimes Act. The sentence commenced on 21 March 2012; a non-parole period of 18 months was specified.

19. An offence of this nature is a “serious violence offence” for the purposes of s 5A(1)(a) of the Act.

20. On 7 August 2014 a further term of imprisonment was imposed upon the defendant, being a term of 2 years imprisonment for an offence of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act, an offence committed at a time the defendant was subject to parole.

21. The sentence commenced on 10 July 2014 and expired on 9 July 2016. The sentence was consecutive upon the sentence imposed on 9 May 2012 for a serious violence offence, and was current when the State commenced these proceedings, on 7 July 2016.

22. Two further offences of assault occasioning actual bodily harm contrary to s 59(1) of the same Act, which were committed within days of the offence of 29 March 2014, when the defendant was subject to parole, were also dealt with on 7 August 2014. Those offences also attracted custodial sentences.

23. The first was dealt with by way of a sentence of 1 year and 3 months with a non-parole period of 11 months and 7 days. The sentence commenced on 28 August 2015 and will expire on 27 November 2016. The defendant will be released to parole on 3 August 2016.

24. For the second of the s 59(1) offences a term of 1 year, 10 months and 14 days imprisonment was imposed, commencing on 3 April 2014 and expiring on 16 February 2016. A non-parole period of 1 year, 4 months and 26 days expired on 28 August 2015.

25. The defendant is thus a “detained violent offender” as provided by s 13C(2)(a)(iii) of the Act, with the timing of the State’s application meeting the requirements of s 13C(3).

26. His current custody will expire in a matter of days, prior to the final determination of the orders sought by the State.

27. The defendant concedes that the procedural requirements set out at s 14 of the Act have been complied with.

The Interim Hearing and the Test to be Applied

28. Section 15(4) of the Act provides for the Court to appoint two suitably qualified psychiatrists, two registered psychologists, or practitioners from each discipline, to provide reports to the Court.

29. Section 15(5) provides for the State’s application to be dismissed if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order.

30. Section 5E provides:

“(1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender.

(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.

(3) The Supreme 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.” (Emphasis in original)

31. The terms “high degree of probability” and “unacceptable risk” are not defined in the legislation. Their meaning must be determined in the context of the objects of the Act, set out in s 3:

“(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.”

32. Both terms have been judicially considered.

33. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the meaning of “high degree of probability” in predecessor legislation was said to be (at [21]):

“[…] something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion “likely” as explained” in TSL.”

34. In Lynn v StateofNew South Wales [2016] NSWCA 57, at [50] - [51], the meaning of “unacceptable risk” was considered:

“[…] the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

What the court, therefore, must find to be unacceptable is the “risk” that the offender poses “of committing a serious violence offence if … not kept under supervision”. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.”

35. That evaluative task must have regard to those matters set out in s 17(4) (relevant to the making of a continuing detention order) and s 9(3) (relevant to the making of an extended supervision order).

36. For the purposes of the preliminary proceedings, the defendant concedes that the Court would be satisfied that the documentation filed by the State in support of its application, if proved, justifies a conclusion that the defendant poses an unacceptable risk of committing a serious violence offence if not made subject to supervision: s 5E, s 15(4) of the Act.

37. He does not oppose the State’s application for the appointment of appropriate forensic experts pursuant to s 15(4) of the Act, and for an order directing him to attend upon each of the appointed experts for examination.

38. The only issue in contention at the preliminary hearing was whether an interim detention order should be made, as provided for by s 18B of the Act. The State sought such an order, whilst Senior Counsel for the defendant submitted that an interim supervision order as provided for by s 10B was adequate to ensure his proper supervision, and also potentially of benefit to the defendant.

The Evidence

Violence Offences

39. I have already noted the broad details of the defendant’s criminal history. It is relevant to consider the circumstances of the some of the more serious offences of violence for which the defendant has been sentenced.

40. The offence of specially aggravated break and enter with intent occurred on 13 August 2008. At the age of 15, and when subject to parole from a Children’s Court sentence, the defendant broke into a residence at about 5 o’clock in the morning and, on being surprised by one of the occupants, a 50 year old woman, punched her in the face, knocking her to the ground and causing injuries that required hospitalisation.

41. The defendant claimed to have been heavily affected by both cannabis and alcohol at the time of the offence.

42. The offence of recklessly causing grievous bodily harm in company occurred on 20 August 2011. The victim of the offence was a 42 year old man who, seeing a large group of between 20 and 25 men harassing two men in the street outside his home shouted to the group to leave the men alone. Because of the anger displayed towards him by the group, the victim went to lock his front gate. The defendant approached him and demanded “Come on, you want to have a go?” He jumped over the victim’s front fence and immediately struck him with a closed fist to the jaw. When the victim was knocked to the ground by the force of the blow the defendant, together with another male who had joined him, kicked the victim in the head. After deliberately damaging the victim’s front fence, the defendant walked off.

43. The whole incident was observed by the victim’s wife and children.

44. Police officers who arrived on the scene in time to see the defendant damaging the fence pursued him and endeavoured to make an arrest. The defendant threw a number of punches at the officers and fled.

45. The victim was taken to hospital and treated for fractures to his left eye socket and jaw. The latter required surgical repair with internal fixation.

46. When eventually located and arrested, the defendant told police that he had no recollection of the offence.

47. Charges of damaging property, assaulting a police officer, and resisting a police officer, were taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when sentence was passed upon the defendant.

48. The offences of assault occasioning actual bodily harm dealt with on 7 August 2014 occurred in quick succession on 29 March 2014, 30 March 2014, and 3 April 2014.

49. The victim of the first of the offences was known to the defendant. He had been sitting in the front yard at his home in Whalan when a group of men walked along a lane near his home. The males were pushing and jostling and one male was yelling at another younger member of the group. The victim called to him to leave the younger male alone. He was thereupon surrounded by a number of males from the group, and challenged to fight by the defendant. The victim held his hands out in a passive gesture and said that he didn’t want to fight. Despite his peaceful expression, the defendant grabbed the victim in a headlock and, as the victim broke free, punched the victim in the left side of the head. The victim stumbled backwards and fell to the grass.

39. As the victim struggled to regain his feet, the defendant landed what was described to the sentencing court as a “flying karate style kick” which struck the victim forcefully in the face, knocking him unconscious.

40. The offence of 30 March 2014 occurred hours later. A large group of individuals began to harass some patrons who were standing at the front of the Bidwill Hotel. Members of the group assaulted individual patrons, kicking them and throwing punches. The victim, also a patron at the hotel, called out to the group to stop. A chair was thrown at him by a woman in the group, evidently a relative of the defendant. The defendant then approached the victim and punched him to the head, causing him to fall backwards, striking his head on the roadway, and losing consciousness.

41. The third of the offences, that of 3 April 2014, also occurred at an hotel, the Cedars Tavern in Emerton. The defendant had previously been barred from the hotel, but sought to enter it in the early hours of the morning. He was stopped by a security guard and refused entry. There was a dispute and the defendant moved a short distance away. His girlfriend began taking photographs of the security officer.

42. Words were exchanged between the defendant’s girlfriend and the security officer, following which the defendant approached the guard and repeatedly pushed him in the chest. He punched him twice in the face. Other persons joined the defendant and dragged the security guard to the ground. The defendant then kicked the guard, stomping on his head as he lay on the ground. Patrons of the tavern came to the guard’s assistance, and he was rescued, injured, from the group.

The Evidence of Dr Richard Parker

54. The Affidavit of Dr Richard Parker sworn 15 July 2016, and Dr Parker’s Risk Assessment Report dated 16 March 2016, were before the Court.

55. Dr Parker is employed as a Senior Specialist Psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW. In making his recommendations, Dr Parker relied on a one-hour assessment of the defendant and a review of relevant documentation.

Psychosocial History

56. Dr Parker’s risk assessment report details the defendant’s troubling and dysfunctional upbringing. The defendant spent his childhood in Western Sydney. Violence was a regular feature of his youth. As one of the eldest children in a large family, he was, at times, left to look after his siblings when his parents would go “missing.” He was, on occasion, obliged to steal food to provide for his younger siblings. The defendant also reported that he would act as the “protector” for the family when they were “jumped” by Pacific Islander groups, who had an ongoing rivalry with Aboriginal groups in the area. This involved the use of violence.

57. The defendant remains close to his family, although Dr Parker notes that each of the defendant’s siblings have criminal histories. The defendant’s broader circle of friends and acquaintances is similarly made up of persons with criminal convictions. He was only able to give Dr Parker the names of two “friends” who do not have convictions recorded against them; one was the defendant’s case worker.

History of Substance Abuse

58. The defendant has a long-standing history of substance abuse. The defendant told Dr Parker that he has abused alcohol and marijuana since he was eight or nine years of age, and that when he uses the substances together he “black[s] out.” The defendant “…attributed a significant amount of his offending to this combination” (Risk Assessment Report of Dr Parker, [36]). Dr Parker characterises the defendant’s substance abuse as “… chronic and heavy”, with only short intervals between binges (Risk Assessment Report of Dr Parker, 2).

59. For some time at around the age of ten the defendant also sniffed petrol and other solvents.

60. Dr Parker notes that the defendant does not display a “strong commitment to abstinence, nor any clear plan to achieve this” (Risk Assessment Report of Dr Parker, [40]).

Psychiatric and Cognitive Factors

61. Dr Parker notes that the defendant has been previously diagnosed with Attention Deficit Hyperactivity Disorder, and was assessed as functioning in the low-average range of intelligence.

Risk Assessment Tools

62. Dr Parker set out the results of a number of quantitative surveys undertaken by the defendant. The defendant’s most recent Level of Service Inventory- Revised (“LSI-R”), Violence Risk Appraisal Guide – Revised (“VRAG-R”) and Violence Risk-Scale (“VRS”) score all placed him in the high-risk category for the commission of further acts of violence.

Compliance with Custodial and Community Supervision

63. The defendant has an extensive history of failing to comply with custodial and community supervision.

64. Since being admitted to the custody of Corrective Services NSW at the age of 18, Dr Parker notes that the offender has frequently re-offended within short periods of leaving custody, or breached parole orders. In 2011, the defendant was arrested for violence offences within two months of leaving custody. He was released for those offences on parole in September 2013, but was re-arrested for breaching parole in November 2013. He was released again on parole in March 2014, but was committed to custody within a month for fresh violence offences.

65. In the periods in which the defendant was not in custody, he has failed to attend appointments with Community Corrections and other relevant agencies, as well as failing to comply with conditions placed upon his liberty, such as obligations to return to residences at which he was required to live.

66. Case notes in evidence indicate that the defendant has a history of offending when in custody, primarily involving drug use. There are entries in Corrective Services NSW notes that record the defendant acting in an intimidating manner and “standing over” other inmates.

Participation in Offender Programs

67. Dr Parker discusses the need for the defendant to undertake a “substantial rehabilitation program, such as VOTP” (Affidavit of Dr Parker, [25]). “VOTP” refers to the Violent Offender Therapeutic Program. It is a high intensity, residential program which may be undertaken by offenders in NSW correctional centres, involving 350 hours of group work, facilitated by a Corrective Services NSW psychologist. It is not available in the community.

68. When formally offered a referral into the VOTP program in 2014, the defendant declined to participate. He accepted an offer in March 2015, but due to his behaviour in the facility, he was suspended from the program. The discharge summary for the defendant stated that:

“…he showed some insight into the relevant factors regarding his offending behaviour in the community. He was not however able to translate this into an understanding of his behaviour and associates within the custodial setting… [H]e cannot be credited with the completion of any of the modules and will need to repeat them.” (Interim Discharge Summary VOTP, 1-2)

69. The defendant was again accepted into the program in December 2015, but declined to participate soon after as he advised that he had lodged an appeal against sentence. The defendant was formally accepted into the VOTP on 29 April 2016 and commenced the program on 27 June 2016. The expected date of completion for the defendant, if he were to remain in custody, is estimated as June 2017.

70. Dr Parker also refers to another program, the EQUIPS Aggression Program, which can be undertaken in custody or in the community. The program is less intensive than the VOTP. Participants are required to complete 20 sessions of two hours. Unlike the VOTP, the participants in the program do not reside together in a “pod” and the program is not facilitated by psychologists. Dr Parker notes that “[t]his program, while suitable for many offenders, is likely to be of insufficient dosage to address Mr Weribone’s criminogenic needs” (Affidavit of Dr Parker, [21]).

71. The defendant was enrolled in the program in February 2016 but was later removed from the program as he failed to attend the requisite number of sessions and opted to join the VOTP instead. Dr Parker deposes that “…his case notes indicate that his participation was generally positive” (Affidavit of Dr Parker, [22]).

72. Dr Parker also considered the suitability of the EQUIPS Addiction Program. The program has similar requirements to the EQUIPS Aggression Program. Dr Parker deposes that, similar to the EQUIPS Aggression Program, “…this program is likely of insufficient dosage to address Mr Weribone’s addictive behaviours” (Affidavit of Dr Parker, [23]).

73. Dr Parker’s affidavit concludes:

“24. I note that the VOTP includes an element that addresses alcohol and other drug issues. VOTP is designed to be a holistic program and will address all relevant pathways to violence, including substance abuse. The defendant is unlikely to require a separate addiction program if he completes VOTP.

25. As noted in my report, Mr Weribone is considered to pose a high risk of further violence if released to the community. Since the readministration of the LSI-R, this is supported by the results of all actuarial instruments used. To reduce this risk, Mr Weribone will need to complete a substantial rehabilitation program, such as VOTP, and be supervised intensely once released to the community.”

Risk of Re-Offending

74. Dr Parker notes that:

“While Mr Weribone was cooperative during the interview, he displayed little awareness of strategies he could use to avoid further offending and violence. It is likely that the attitudes underpinning his offending are so natural to him, that he does not recognise how discordant they are with general societal attitudes.” (Risk Assessment Report of Dr Parker, [36])

75. A serious lack of insight is supported by Dr Parker’s acknowledgment that, although the defendant is only 23 years old, he has accumulated 12 convictions for violence offences since the age of 12, despite the fact that he has only been at liberty for 18 months during that 12 year period.

76. Dr Parker identified the defendant as high risk. In order to successfully make the transition to a law-abiding lifestyle, Dr Parker noted that it would be necessary for the defendant to cease associating with antisocial peers, refrain from substance abuse, and no longer engage in “criminal thinking”, including the belief that violence is an acceptable means of resolving interpersonal conflict.

77. Dr Parker noted that, were the defendant to be subject to an extended supervision order, this would provide intensive community supervision. However, he notes that the defendant’s poor record of compliance may render the order ineffective. If the defendant were to be subject to a continuing detention order, he would be eligible to participate in the VOTP, although again Mr Parker reiterates the need for the defendant to be willing to engage in such a program for the treatment to be successful.

78. Dr Parker considers it likely that if no order is imposed on the defendant, he will simply drift back towards his antisocial peers in Western Sydney and return to his previous criminal lifestyle.

Evidence of Joyleen Nowrot

79. Joyleen Nowrot is a Senior Community Corrections Officer within the extended supervision order team of Corrective Services NSW. She met with the defendant on two occasions in preparation for the present hearing and provided evidence to the Court both orally and in the form of a Risk Management Report, dated 13 April 2016.

80. The report details the prior management of the defendant by Community Corrections and the defendant’s non-compliance with custodial and community supervision. He breached parole in January 2011 for failing to reside at an approved address, and again in August 2011 for failing to be of good behaviour and for committing further offences while on parole. His parole was subsequently revoked. He was again subject to parole but breached this in November 2013. A fourth order for parole revoked in April 2014 for committing further offences.

81. The defendant is due to be released to parole again on 3 August 2016 for a period of three months.

The Proposed Risk Management Plan

82. Ms Nowrot relied on Dr Parker’s Risk Assessment Report dated 16 March 2016, in addition to the interviews conducted personally by her, to prepare the defendant’s Risk Management Plan.

83. The proposed plan for extended supervision includes weekly interviews with the offender, scheduled and unannounced field visits, third party contacts, electronic monitoring, a schedule of movements, curfews, referral to both psychological and alcohol and drug services, regular drug and alcohol testing, non-association and place restrictions.

84. In her oral evidence, Ms Nowrot distinguished between the stringent conditions outlined in the proposed plan, and the “standard conditions of parole.”

85. The plan proposes weekly face to face contact with the defendant at his approved residence. The purpose of these regular meetings would be to assist with planning and organisation to minimise “impulsivity” and to avoid “high risk situations” (Report of Ms Nowrot, p 5). As a community corrections officer who formerly dealt with parolees, Ms Nowrot deposed that a Corrections officer is able to offer more concentrated supervision of an offender subject to an extended supervision order than can a parole officer to a parolee, and a more intensive level of supervision would benefit the defendant.

Risk factors for the defendant

86. Ms Nowrot was asked to compare the conditions of parole which the defendant would ordinarily be subject to when released to parole on 3 August 2016 with those of the extended supervision plan. An individual on parole is subject to “the standard conditions,” however the risks identified which are specific to the defendant require greater autonomy on his part to address them than is the case for an individual subject to parole.

87. Ms Nowrot deposed that the defendant has breached parole several times in the past despite there being “sound case management plans” in place (T11:22):

“So with Mr Weribone, we have had sound case management plans before in regards to his parole supervision. However, they have fallen through, where Mr Weribone has either not resided at his approved address, or has not attended for his appointments, and then parole revocations have gone in and then a warrant issued for his arrest. So I think that we could obviously, not to the intensity as an extended supervision order.”

88. Ms Nowrot considered drug and alcohol prohibition conditions attaching to parole to adequately address the defendant’s risk factors, but was pessimistic as to their efficacy, due to the defendant’s history of non-compliance and the short period of parole. She said that, if subject to parole, the defendant would be referred to culturally specific programs, drug and alcohol programs, violence related programs, but “it would be up to Mr Weribone to engage with those services. Historically, he hasn’t” (T11:29).

89. Ms Nowrot identified alcohol as a specific risk factor which related to the defendant’s offending patterns (T7:46). She asserted that this risk would be “difficult” to manage if the defendant was subject to parole, given the limited opportunity to monitor and observe him.

90. By contrast, electronic monitoring, a curfew and a schedule of movements are examples of provisions inclusive in the proposed management plan not available under parole (T7:27).

91. Mount Druitt has been recognised as a “high risk environment” for the defendant to which the defendant constantly gravitates. There, “he is generally surrounded by other antisocial people who facilitate his substance abuse and offending” (Risk Assessment Report, Dr Parker, 16 March 2016, p 2). Ms Nowrot deposes that the proposed conditions of a supervision order would enable Community Corrections to better identify and minimise the possibility of the defendant engaging in risk related activities and to “ensure he is engaging with any recommended therapeutic intervention” than would a parole order (Report of Ms Nowrot, p 7).

Participation in Offender Programs

92. Ms Nowrot recommends that the defendant undertake the VOTP. In her oral evidence, Ms Nowrot noted that a key risk factor for the defendant once released on parole is a lack of engagement with intervention programs, as the defendant has a history of failing to take up such services. Ms Nowrot deposed that at the current time, the defendant appears engaged in the VOTP and “he is happy with his therapeutic group at the moment” (T14:21). The defendant would also have the benefit of the VOTP maintenance programs in the community once he has completed the program. In general, Ms Nowrot believed the VOTP would give the defendant a better opportunity to avoid returning to his previous criminal lifestyle in Western Sydney. She thought that it was unlikely that the defendant would be able to make substantial progress with community supervision in the short term.

93. As earlier noted, the VOTP is only available to persons in custody, and there is no community based equivalent.

Consideration

94. There can be no doubt, on the evidence if accepted, that the defendant poses a risk of committing further offences of violence when he is released to the community. There is, however, a real question in my mind as to whether it is possible to be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious violence offence.

95. In contrast to the position of many individuals whom the State seeks to have detained beyond the expiration of an existing sentence, the defendant is a young man whose anti-social conduct may not be so deeply entrenched as to lead to the community despairing altogether of his rehabilitation, or concluding that the only available mechanism to protect others is his ongoing incarceration.

96. Although I have reservations as to whether the defendant is the sort of offender to whom this legislation is intended to be applied, the defendant’s concession at this preliminary stage that an interim supervision order is appropriate and may indeed be of benefit to him cannot be lightly set aside. It is a significant feature.

97. That concession does not go so far as to accept the necessity of ongoing detention, even having regard to the fact that only in custody can the defendant have access to the VOTP, a program which Dr Parker and Ms Nowrot both consider would greatly advantage the defendant, and improve his prospects of rehabilitation.

98. Whilst I accept that the defendant would benefit from participation in the program, I do not regard that as an adequate basis upon which to order his interim detention. The mere fact of incarceration does not mean that the defendant will continue to participate in the program he so recently commenced. That is clear from the defendant’s previous refusal to accept a place on the VOTP during the course of his sentence.

99. The possible benefit of participation in a custody based program is, in any event, not a matter that enlivens the power to make an interim detention order.

100. Such an order may only be made if the Court is satisfied that adequate supervision will not be provided by an interim extended supervision order. I am not so satisfied.

101. The proposed conditions of community supervision are onerous and provide considerable scope for the defendant’s oversight within the community. That is particularly so given that suitable accommodation is available to the defendant, away from the poor influence of family and peers in Mt Druitt, at the Nunyara COSP. As a resident at the COSP, the defendant would be subject to rules which should mitigate the risk of violent conduct.

102. The supervision and direction available to the defendant if subject to an interim supervision order, coupled with the supervision and conduct requirements of residence at a COSP, should be sufficient to address the risk that the defendant may pose if unsupervised. It may also promote rehabilitation.

94. The plaintiff has not persuaded me that an order for the defendant’s interim detention is necessary.

95. Particularly having regard to the defendant’s concession on this point, I am persuaded that an order for his interim supervision ought to be made, together with orders for the defendant’s examination by a psychiatrist and psychologist.

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Decision last updated: 29 July 2016