State of NSW v Arthurell (Final)

[2021] NSWSC 953

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

State of NSW v Arthurell (Final) [2021] NSWSC 953

Hearing dates:

5 July 2021

Decision date:

05 August 2021

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1)   The defendant is subject to an extended

supervision order for a period of two years from the date of the order.

(2)   The defendant, for the period of the extended

supervision order, must comply with the conditions annexed to this judgment.

Catchwords:

HIGH RISK OFFENDERS — extended supervision orders — incorporation of findings made in undisputed preliminary judgment — elderly defendant proceeding reasonably well on conditional liberty — three separate homicides committed by defendant over a period of more than two decades — established proclivity to inflict fatal harm— two-year extended supervision order imposed — dispute about conditions resolved very largely in favour of rigour

Legislation Cited:

Crimes Act 1900 (NSW), s 93X

Crimes (High Risk Offenders) Act 2006 Act (NSW), ss 5B, 10

Cases Cited:

State of New South Wales v Arthurell (Preliminary) [2021] NSWSC 482

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Regina Kaye Arthurell (Applicant)

Representation:

Counsel:
K Curry (Plaintiff)
D Barrow (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2020/351421

Publication restriction:

Nil

Judgment

Introduction

1. This judgment resolves an application by the State of New South Wales (the plaintiff) for an extended supervision order (ESO) of three years to be imposed upon Ms Regina Arthurell (the defendant). That application is brought pursuant to the Crimes (High Risk Offenders) Act 2006 Act (NSW) (the Act).

2. On 6 May 2021, Wilson J delivered a, with respect, pellucid judgment that explains why, at the preliminary stage, her Honour was amply satisfied that she should impose an interim supervision order (ISO) upon the defendant: see State of New South Wales v Arthurell (Preliminary) [2021] NSWSC 482. At the commencement of the final hearing before me, I asked both counsel whether there was any error to be discerned in that preliminary judgment: Tcpt, 5 July 2021, p 2(1). Both confirmed that there was not. Accordingly, in order to avoid fruitless repetition, this judgment of mine should be understood as incorporating that preliminary judgment; I adopt all of the findings of fact and law made therein by her Honour; and a hyperlink to it is to be found here. Again, both counsel were content with that approach.

3. For the convenience of the reader, I shall be repetitive only to the following extent. The defendant has committed the offence of homicide on three occasions. The first was in 1974, when she committed the manslaughter of her stepfather in Sydney, who was said to have been a very abusive person. The second was in 1981, when she committed the manslaughter of a young man in the Northern Territory, by way of a joint criminal enterprise to commit a robbery that was ultimately fatal. The third was in 1995, when she committed the murder of her former intimate partner in north-western New South Wales. The learned sentencing judge described that offence as callous, senseless and wanton, and the death of the deceased as utterly undeserved.

4. A number of aspects of the homicides are noteworthy. First, the first homicide is separated from the last by a period of more than two decades. Secondly, alcohol was implicated in the commission of all of the killings. Thirdly, when the defendant committed the murder, she was on parole for the manslaughter from 1974 (the court proceedings and resultant periods of incarceration having occurred in a different order from the commission of the offences).

5. As one would expect, the defendant has spent a great many years of her life in custody as a result of being convicted and sentenced for three separate homicides. She was released on parole, quite recently, on 12 November 2020. After her parole expired on 24 May 2021, she has been continuously subject to an ISO.

6. The final aspect of this thumbnail sketch of matters dealt with much more fully in the preliminary judgment incorporated by me is that the defendant is a transgender woman, and her transition has been taking place over quite some years. At the time of all of the homicides, however, she identified (at least in terms of presentation) as a male.

Updated position

7. The following things have occurred or developed since the delivery of the judgment of Wilson J.

8. First, the defendant is now aged 75 years and 2 months. Her physical health is quite poor. Amongst other things, she suffers from significant hand tremors and is blind in one eye due to glaucoma.

9. Secondly, the conditional liberty of the defendant since her most recent release has proceeded reasonably well, despite inevitable “bumps in the road” in her approach to readjustment to life in the community after a continuous period in custody of over 24 years, and a total period in custody throughout her life of almost 39 years, interrupted by a little over 4 years in the community: see the judgment of Wilson J at [42]. In particular, there have been no established breaches of parole or of the ISO, and the defendant is engaging constructively with people who are trying to advance her rehabilitation, including a psychologist. Furthermore, the uncontradicted evidence is that the defendant has maintained her very longstanding abstinence from alcohol. In that sense, the guarded optimism expressed in various pre-release risk mitigation reports has been rewarded.

10. Thirdly, the defendant was living for a time in an apartment that was part of an aged care facility. Her background became known, however, and she was forced to leave. She is now living in crisis accommodation. Finding an appropriate place to live that is more permanent is a challenge. In similar vein, the defendant was the patient of a general practice without incident. Once her background became known, however, she was no longer welcome at that clinic. Again, her medical care is a challenge.

11. Fourthly, the defendant had sought to maintain a friendship with a person whom she got to know in custody. That person has committed their own serious criminal offences. Ultimately, the police prohibited the defendant and that person from being in contact, it seems pursuant to s 93X of the Crimes Act 1900 (NSW). That step was taken by the police outside the mechanisms provided for by the ISO, and I infer that it was not regarded as rehabilitative by the Departmental Supervising Officer (DSO) supervising the conditional liberty of the defendant.

12. Fifthly, the defendant was for a time part of an online transgender support group, with the approval of her DSO. That ended sourly (it is impossible on the material before me to be more definitive as to why), and the defendant is no longer a member.

13. In summary then, it is clear that the defendant is leading an extremely circumscribed, isolated, difficult life in the community.

14. Sixthly, pursuant to orders made by Wilson J, written and oral evidence was received by me from the experts Dr Singh, forensic psychiatrist, and Ms Manoski, forensic psychologist. Each spoke of a moderate or medium risk of the defendant committing a further offence of serious violence, based on clinical and statistical assessment. Dr Singh was not convinced that an ESO is necessary, and queried whether alternative, less intrusive mechanisms of control were available, such as a guardianship order. Ms Manoski felt that an ESO would be appropriate. Each expert felt that two years further conditional liberty would be sufficient, chiefly because of the frail state of health of the defendant being prophylactic against violence.

15. Seventhly and finally, at the final hearing I received a victim impact statement from the brother of the deceased lady who was the victim of the murder in 1995. I have read that carefully. It sets forth some poignant details about the loss of the deceased, and explains his fears about what the defendant may do in the future.

Determination

16. At the conclusion of the final hearing, I did not understand counsel for the defendant bitterly to resist the proposition that an ESO should be imposed: Tcpt, 5 July 2021, p 36(6). Although emphasising that the question was of course one for me, he focused more on the question of its length, and the question of disputed conditions.

17. Turning first to determine whether an ESO should be imposed, I respectfully think that the central question posed by s 5B of the Act – whether there would be an unacceptable risk of the commission of a serious offence of violence if the defendant were not kept under supervision pursuant to the order – can be answered without elaboration in this case, as follows.

18. It is true that the defendant is an elderly woman whose physical health is not good. I also accept that transitioning with regard to one’s gender can sometimes be difficult psychologically, and I infer that it would almost always be so when one does so in custody. It is also true that her progress in the community has been generally sound. I further accept on balance that the defendant is making a sincere effort at rehabilitation in very challenging circumstances.

19. To be weighed against all of that is the simple fact that, by committing unlawful homicide thrice, over a period of many years and in notably different contexts, the defendant has unequivocally demonstrated a proclivity violently to terminate the lives of fellow human beings.

20. To expand upon that: homicide is exceptionally rare within Australian society, and rare within the criminal justice system. Even within that system, to commit homicide on two separate occasions is exceptionally rare; to have been convicted of committing it three times, including once whilst on parole for a previous homicide, I dare say is approaching the unique.

21. Separately, a frail, even physically disabled, person can inflict fatal harm once armed with a weapon.

22. Furthermore, a guardianship order would, in my respectful opinion, be an insufficient limitation on the autonomy of the defendant. And in any event, there is no reasonable prospect of one being made for the time being, not least because the defendant is not cognitively impaired.

23. Despite the passage of time, the frailty of the defendant, and recent positive signs, the criminal record of the defendant in my opinion firmly establishes that an ESO is appropriate in this case. To express that another way: in light of the established pattern of fatal harm being repeatedly inflicted by defendant that began approaching fifty years ago, for her to be completely at liberty in the community would simply be far too dangerous.

24. I am well satisfied that the defendant should be subject to an ESO, and there is no basis upon which I would exercise my discretion not to impose one.

25. The second question is its length. The plaintiff contended for three years; as I have said, each expert was content with two years; and that was the position of counsel for the defendant.

26. In a sense, this debate is a little arid, because as needs be the plaintiff is empowered by s 10(3) of the Act to seek a further ESO on the expiry of this one. Even so, I understand the point made for the plaintiff that repeated applications are demanding, time-consuming, and possibly disruptive to the rehabilitation of an offender. On the other hand, I take the point made for the defendant that coercive diminution of liberty should not be imposed lightly, and the statutory mechanisms available to the plaintiff argue in favour of erring on the side of parsimony.

27. Here, the court appointed experts are unanimously content with an ESO of two years. By the time that period expires, the defendant will be aged 77 years 2 months. Her time so far in the community has not been marked by breach. I infer that her physical health will have deteriorated during that time. As needs be, the plaintiff will be fully entitled to seek to persuade another judge of this Court that conditional liberty should continue.

28. In my opinion, in accordance with the unanimous view of the experts, the ESO should be for no more than two years.

Dispute about conditions

29. Those two determinations leave only the final question of the conditions that should be attached to the two year ESO. Both counsel helpfully explained with precision which conditions are disputed, and made concise submissions about them.

30. I should say that I have considered the undisputed conditions, and am satisfied that all of them are appropriate and should be imposed.

31. As for resolution of the following disputes, the established deadly proclivity of the defendant of which I have spoken above powerfully informs my general approach: as a matter of protection of the public, I believe that rigorous conditions are appropriate in this case.

32. The first dispute was whether the defendant should be subject to electronic monitoring by way of proposed condition 4. The submission was that that is simply not necessary, overly intrusive, indeed oppressive. Reliance was placed upon the opinion of the experts, who were generally against it.

33. I respectfully disagree, for the following reasons. It can be seen that the fatal offending of the defendant has occurred in locations hundreds – sometimes thousands – of kilometres apart. Although living in Sydney, the defendant has expressed a desire to live in the country, where she has tended to live as an adult when at liberty. It is true that she is frail, but even very frail and very elderly people can use public transport to travel long distances in short times before their absence is detected. Murder was committed whilst the defendant was subject to conditional liberty for manslaughter.

34. I accept that electronic monitoring is intrusive. But I believe that it is soundly appropriate in this case. For that reason, proposed condition 4 will be made as sought.

35. Counsel for the defendant made it clear at the hearing that, if I came to that view, he would not oppose conditions 5, 6 and 7, to do with a schedule of movements. I accept that concession, and they will be imposed.

36. Condition 8 seeks to control the accommodation of the defendant. Her counsel accepted that accommodation is a crucial factor in the rehabilitation of his client, but proposed a condition that focuses more closely on the risk of a serious offence of violence being committed. But I do not believe that such granularity is required; no doubt that central factor will be foremost in the mind of any DSO. Condition 8 will be made as sought by the plaintiff.

37. Condition 15, which requires approval of the DSO before the defendant “starts on her own initiative” any employment, volunteer work, or education, was opposed. In the alternative, less rigorous conditions were put forward. But I consider that it is imperative that the DSO is empowered to keep a very close eye on the interactions of the defendant with others, not only by way of those three activities, but otherwise. Condition 15 will be imposed as sought by the plaintiff.

38. Condition 22 mandates drug and alcohol rehabilitation at the reasonable direction of the DSO. It was resisted by counsel for the defendant on the basis that the defendant has never abused prohibited drugs; has been abstinent from alcohol for decades; has engaged in many rehabilitative programs in custody; and had behaved well in prison over many years. It was also said that, if some problem happens to develop with alcohol or prohibited drugs, an amendment could be sought to the conditions of the ESO.

39. I respectfully disagree. As I have said, alcohol played a role in all three homicides. Much of the period of abstinence on the part of the applicant was whilst she was in custody, where alcohol is at the least more difficult to obtain than in the community. In contrast, alcohol is available in every suburb of Sydney, even in the current constrained state of affairs. The defendant, as I have said, is leading a very difficult, lonely life. It is not unrealistic to think that she might begin to seek solace in alcohol, with potentially disastrous consequences. For all those reasons, condition 22 will be imposed as sought by the plaintiff.

40. Condition 25, which permits the DSO to disclose the criminal history of the defendant to another person “if the disclosure is reasonably necessary”, was opposed on the basis that it is too broad. It was suggested that it should be restricted only to “intimate relationships or close friendships”.

41. To repeat myself: throughout her life, the defendant has brought the lives of three fellow human beings to an end. It is not difficult to posit situations in which it may be reasonably necessary to advise others of that fact, beyond persons who are or may be intimate, or in close friendships, with the defendant. Condition 25 will be made as sought.

42. Conditions 28 to 32 were also opposed. They all relate to the ability of a DSO to monitor quite closely the online and digital access and activities of the defendant.

43. The point was made by the forensic psychologist, Ms Manoski, that the Internet was not implicated in any of the homicides committed by the defendant. And the separate point was made by her counsel that the transgender support group was something that was put in place by those supervising the defendant, in an effort to provide her with connections in the community, not something with which she connected furtively. It was also said that, having been in custody for so many years, the defendant has no real facility in digital devices or the online world.

44. All of those points have force. But the simple fact is that the Internet did not exist in Australia in 1974, 1981, or – to any extent – in 1995, and was therefore incapable of being part of the context of offending. It is also to be recalled that the victim of the murder was a former intimate partner of the defendant, and such partnerships are very often begun digitally nowadays. Furthermore, I think that even older people, who may have come to digital devices, the Internet, and social media late in life, are often well able to navigate them. Finally, much of life nowadays is led online, especially by isolated people, and especially in the midst of the current public health emergency.

45. In my opinion, to fail to impose those conditions would leave a significant gap in the supervision of the defendant. All of them will be made.

46. Conditions 35 to 38 were not in terms opposed by the defendant, but simply left to my determination. Some of them, it seems, were pressed before me by the plaintiff, above and beyond the form in which they were made by Wilson J at the preliminary hearing some months ago. Having reviewed all of them, my view is that they should all be made, but none of them should be made more rigorous than they have been for many weeks, including by way of being made more general or expansive. That is because, as I have said, the defendant has proceeded quite well on both forms of conditional liberty over the past months. There is no established ground for greater stringency. The conditions imposed by Wilson J that differ from those now sought by the plaintiff are in my opinion, sufficient, balanced, and appropriate.

47. To be clear then: all of conditions 35 to 38 will be continued; none of them will be altered from their current state.

48. (Although condition 40 was opposed at the time of the hearing, in a subsequent written submission counsel made it clear that that was no longer the case.)

49. Condition 46, to do with sharing of information between persons involved in the rehabilitation of the defendant, was said for the defendant to require greater specificity. It was said that it should be limited to medical intervention or treatment, as considered reasonably necessary, by the DSO or healthcare practitioners, for the rehabilitation and risk mitigation of the defendant.

29. In my opinion, however, the sharing of information cannot be restricted to “any medical intervention or treatment” only. I believe that that would be, with respect, overly focused on one aspect of the rehabilitation of the defendant. Separately, I believe that the further proposed restriction of insisting on focus on rehabilitation and risk is part and parcel of the whole exercise of the defendant being subject to an ESO, and in that sense is unnecessary. For those reasons, condition 46 will be made as sought by the plaintiff.

30. Finally, condition 47, which calls upon the defendant to agree to the disclosure of her criminal history to any treating healthcare professionals, was opposed as being simply too broad. The point was soundly made that the defendant has already been refused healthcare because of her past. It was also said that her criminal history is nothing to do with receiving medical help from, for example, an optometrist or a podiatrist.

31. Turning to my determination of this final disputed condition, I agree that it is regrettable indeed if, because of her past, it is difficult for the defendant to obtain medical treatment. I respectfully think that there must be ways whereby she can do so, whilst at the same time the safety of treating professionals can be protected.

32. Having said that, in my view this condition is not directed towards, for example, a podiatrist being able to better treat a sore foot suffered by the defendant because of their knowledge of her criminal history. To the contrary: it is to do with the podiatrist informedly taking such measures as the podiatrist sees fit to protect themself, medical staff, and other patients, bearing in mind the established homicidal proclivity of the defendant. I believe that condition 47 is soundly appropriate.

Orders

54. For the foregoing reasons, I make the following orders:

1. The defendant is subject to an extended supervision order for a period of two years from the date of the order.

2. The defendant, for the period of the extended supervision order, must comply with the conditions annexed to this judgment.

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Arthurell - Schedule of Conditions of Supervision.pdf)

Decision last updated: 05 August 2021