The State of New South Wales v Johnson

[2016] NSWSC 267

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	The State of New South Wales v Johnson [2016] NSWSC 267
Hearing dates:	9 June 2015 & 12 June 2015
Date of orders:	12 June 2015
Decision date:	17 March 2016
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Extended supervision order made for 3 years, subject to schedule of conditions.
Catchwords:	HIGH RISK VIOLENT OFFENDER – Application by State for extended supervision order – issues as to duration, the terms of some proposed conditions – Aboriginal offender – involvement of Tribal Dreaming program
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Firearms Act 1996 Weapons Prohibition Act 1998
Cases Cited:	R v Johnson (CCA, unreported, 12.11.96)
Category:	Principal judgment
Parties:	The State of New South Wales (plaintiff) Douglas Johnson (defendant)
Representation:	Counsel: Mr L Fernandez (plaintiff) Ms S Hall (defendant)     Solicitors: Crown Solicitor’s Office (plaintiff) Legal Aid Commission (defendant)
File Number(s):	2015/68956

Judgment

1. HIS HONOUR: The plaintiff, the State of New South Wales, sought an extended supervision order against the defendant, Douglas Johnson, on the basis that he is a high risk violent offender, pursuant to s 5E of the Crimes (High Risk Offenders) Act 2006. On 12 June 2015, I made an order with an attached schedule of conditions, undertaking to give my reasons later. These are those reasons.

2. Through his counsel, the defendant did not concede that an order was appropriate but acknowledged that there was a substantial body of evidence to justify one. The primary areas in dispute were the duration of the order and some of the conditions proposed by the State.

Violent offending

3. On 3 June 1994, in the Supreme Court at Newcastle, the defendant was sentenced by Wood J (as he then was) to terms of imprisonment aggregating 22 years with a non-parole period of 15 years for murder and two offences of malicious wounding. One of the malicious wounding offences was associated with the murder, and was taken into account on a Form 2 (as it then was). The other malicious wounding was a separate incident, earlier in time.

4. The earlier offence took place on the night of 15 August 1992 at Kingswood Park. The defendant, who was 18 years old at the time, was drinking with a group of people in a street. The victim was walking home after finishing work. The defendant and another man approached the victim, the other man grabbed his shirt, and from behind the defendant stabbed him through the neck with a kitchen knife. The knife penetrated the victim’s head, stopping at a point just short of the inside of his nose.

5. The defendant and the other man ran away, leaving the victim with the knife in his head. The victim was taken by ambulance to hospital and underwent emergency surgery, but was left with permanent damage.

6. Upon his arrest, the defendant gave police a false account that he was defending his friend and that the victim fell onto the knife causing it to penetrate his neck. In the event, he pleaded guilty to this offence.

7. The murder occurred on the night between 14 and 15 June 1993 at Carrington, while the offender was on bail for the earlier malicious wounding offence. Put shortly, the defendant had a confrontation with the deceased over a young woman. They fought in a house, where they were drinking in the presence of other young people. The defendant and the deceased went outside the house, and later they fought. The defendant was armed with a knife and stabbed the victim in the upper arm and lower back, breaking the blade of the knife in the process. Later the deceased followed the defendant to the home of the young woman in question. Again they fought, and on this occasion the defendant stabbed the deceased three times, causing wounds and a large number of cuts and bruises. The deceased was taken to hospital and discharged at midnight.

8. The deceased returned to the defendant’s home to continue the confrontation with him. Believing that the defendant was not home, the deceased started to walk to his home. However, the defendant followed him, armed with a larger knife. On this occasion he stabbed the deceased twice in the back, once in the chest at the front and once through the mouth. They were all deep wounds and one of them penetrated the deceased’s heart, causing his death.

9. On 15 June 1993, the offender handed himself in to police. In an interview he claimed that the deceased was a sexual offender who had molested his cousin, and that he was acting in self-defence on the first occasion that he stabbed him. These claims also were untrue. The first stabbing was the malicious wounding taken into account on the Form 2, by which the claim of self-defence was clearly abandoned.

10. At the trial for murder the defendant raised issues of self-defence, provocation and intoxication, by alcohol and/or drugs. Wood J considered those defences to have been rightly rejected.

11. In his remarks on sentence, his Honour said:

“Viewed objectively, the circumstances in respect of which the prisoner now stands for sentence are about as serious as one could possibly imagine. He stands convicted of murder involving the use of a knife, that offence occurring at a time when he was already facing trial and on bail for a malicious wounding involving the use of a knife. It is plain beyond question that that is a circumstance of grave concern.

It is regrettable that this young man has chosen so readily to resort to the use of a knife. He has now done so on three occasions, and finally with tragic results. That history tends to suggest a propensity for serious violence on his part, signs of which were already present in his antecedents.”

12. The defendant appealed unsuccessfully against his conviction and sentence: R v Johnson (CCA, unreported, 12.11.96).

13. On 22 January 2002, while in custody at Goulburn Correctional Centre, the defendant committed another serious offence of violence. The victim was his first cousin, a prisoner on strict protection, who had asked to be able to visit the offender.

14. The visit was authorised and the victim was taken to the defendant’s cell by a prison officer. As soon as the cell door was opened, the defendant attacked the victim with a shiv made from a paint brush. Eventually the prison officer, with the assistance of other staff, stopped the attack.

15. The victim was treated in hospital for a punctured lung and minor abrasions. The defendant told police that, according to his brothers, the victim had molested the defendant’s sister when she was young. He had not asked his sister if this was true.

16. On 28 February 2003, the defendant pleaded guilty in the District Court to maliciously wounding his cousin. He was sentenced to a term of imprisonment, the effect of which was to extend his parole eligibility date by 2 years.

Background

17. In his remarks on sentence, Wood J noted that the defendant had a bad record of offences, dealt with in the Children’s Court, including offences of violence. His Honour continued:

“Unfortunately, the history of offending was almost preordained by the deprived background of the prisoner. He is a young Aboriginal man who is now only nineteen years of age, who came from a home where alcohol abuse and neglect were always present. In fact, it is said that he was abandoned as an infant, placed in the care of a friend until he was aged seven, before being placed into the care of foster parents. His father died when he was relatively young and thereafter, although he returned to his mother’s home, he floated between various places, living with relatives and others. He started sniffing petrol, began to use alcohol and cannabis, and stopped going to school at around about thirteen or fourteen years. In fact, one of the psychiatric reports suggests that he was expelled from school at that age after chasing another student around with a machete.

He spent a long period in institutions, including Minda and Mount Penang, and he has had little opportunity to bond to any significant figure.”

18. For the purpose of the sentence proceedings the defendant had been assessed by Dr Westmore, psychiatrist, and Mr Taylor, psychologist. His Honour continued in his remarks:

“… Dr Westmore does not suggest him to suffer from any form of psychiatric disorder or illness, and realistically observes that alcohol and his deprived background play a large part in his offending. Equally realistically, he suggests that drug and alcohol counselling, together with training in conflict resolution, are essential to his rehabilitation.

Mr Taylor’s psychometric assessment shows him to be within the below average range of intellectual function and his reports indicate that he has a personality disorder of anti-social and aggressive characteristics. The testing also tends to show that he has weak emotional and behavioural controls and a low threshold for impulse discharge.”

19. The defendant grew up in Wilcannia. The disturbed upbringing outlined by Wood J included periods when he was a State ward, lived with a number of foster families, and was cared for by a paternal uncle and his wife. He moved from time to time to different areas of the country, including Sydney at one stage. All that said, he has support from his paternal uncle, whom he sees as his step-father, and a number of step-siblings and cousins, who live in the regions of Wilcannia/Broken Hill, Orange and Sydney, who do not indulge in substance abuse and have regular employment, and whom he sees as good role models.

Response in custody

20. The defendant was never granted parole. I made the extended supervision order on Friday, 12 June 2015 because his aggregate sentence was to expire two days later, on 14 June. (That sentence dated from 15 June 1993. The non-parole period, as extended, expired on 13 June 2010.) During his imprisonment he has been dealt with for a large number of institutional offences, including episodes of violence, although the last of those was in May 2012.

21. In evidence is a large body of material relating to his experience of education and rehabilitative programs while in custody. I also have reports prepared for the purpose of these proceedings by Dr Elzbieta Kobylinska and Ms Jenny Howell, psychologists, and Dr Samson Roberts, psychiatrist. Given the manner in which the case has been conducted, it is not necessary to refer to this material in detail.

22. From 2003, the defendant has participated in a variety of programs directed to such matters as life management and self-esteem, together with drug and alcohol programs. He has also been involved in education including, importantly, Aboriginal cultural studies. In more recent years he has participated in the Violent Offenders Therapeutic Program (VOTP) and the VOTP Maintenance program. These programs were challenging, but it appears that his response to them, while variable, has been reasonably positive.

Expert reports

23. Dr Kobylinska’s report addressed the issue of risk assessment, having regard to her interview with the defendant and his documented history, and applying actuarial risk assessment instruments consisting of both static and dynamic risk factors. Put shortly, she concluded that his risk of violent reoffending was in the “high risk category relative to other men who have offended violently.” Not surprisingly, she found him to be severely institutionalised and to be very anxious about his adjustment to community life. She noted that his behaviour in custody had shown some improvement and he had gained appropriate knowledge about how to lead a crime free life, but saw him as “at the initial stages of making change” and requiring to further consolidate that change. He had used drugs in prison, but she noted that both his violence and drug use had been reduced in recent years.

24. He had engaged with her “in developing plans regarding contact with programs and services”, and she noted that he could participate in the VOTP Maintenance program upon his release if he were subject to a continuing detention order. This, she wrote, would “enable him to work towards developing a clear plan to minimise his risk of future offending over the long term.” She emphasised the need for supervision upon his return to the community, adding that “after serving his entire 22 year sentence in custody it is unlikely that Mr Johnson would be able to self-manage his risk in the community on his own.”

25. Ms Howell referred to assessments made by prison psychologists between 2013 and 2015 which indicated that the defendant is in the high risk category for violent reoffending. However, consistently with Dr Kobylinska’s observation of improvement in his behaviour and attitude recently, she noted that the assessment suggests that he has moved “from the pre-contemplation stage (indicating little awareness of the problem or intention to change in the near future) to a preparation stage of change on most items (indicating recognition of his problems and that he had made observable efforts to overcome these). He reported to her that in VOTP he had learned new skills, involving “listening to people and their views before making decisions and walking away from situations.” He added that he was “committed to drug treatment and living a drug free life.”

26. Dr Roberts also noted the defendant’s reduction in violence and drug use and reported that “while Mr Johnson remains at high risk of violent reoffending, the expectation of future violence would not be of the same severity as his most serious past offences.” He saw the defendant’s “lifelong pattern of behaviour and attitudes towards others” as reflecting a diagnosis of Anti-social Personality Disorder. He observed that a disorder of that kind is enduring in nature although it can ameliorate in severity with time. He also observed in his report:

“… His personality was moulded by lifelong exposure to criminality to such an extent that criminal culture, values and attitudes are ‘normal’ for Mr Johnson. He has never lived among people who uphold mainstream social values. This has the potential to represent a challenge for Mr Johnson.”

27. Dr Roberts considered the defendant’s risk of engaging in a further serious violence offence “on the available actuarial assessments and the clinical material.” He concluded:

“The overall impression is that Mr Johnson is at moderate to high risk of engaging in a further violence offence and at moderate risk of engaging in a serious violence offence. His risk is expected to escalate in the context of substance abuse.”

The order sought

28. I may make the extended supervision order sought if I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision: s 5E(2) of the Crimes (High Risk Offenders) Act. Applying that test, the material which I have summarised demonstrates that an order should be made. What remains to be determined are the duration of the order and the appropriate conditions attached to it.

29. At the hearing I received significant evidence from Ms Lee Atkinson, a team leader of Tribal Dreaming, a pre and post release case management service for Aboriginal men who have been in custody in New South Wales. The program sets out to help such men readjust to society and build social skills. It fosters a sense of family identity and a familiarity with Aboriginal culture. It provides accommodation, generally in the inner west of Sydney, and case workers who provide one on one support 24 hours a day, 7 days a week.

30. The program helps and encourages these men to find employment and undertake education. It provides in-house counselling for drug abuse and encourages them to attend other counselling services.

31. The program works in co-operation with Community Corrections and the Probation and Parole Service. It had been in contact with the defendant and case workers have been arranged for him if he was able to enter the program. Ms Atkinson said that the program is voluntary, but that Community Corrections would be notified if he left it. The case workers would do random home visits to check that he was not taking drugs, and would notify the department if he was. Generally, the case workers would notify the department if he was found to be in breach of any of the conditions of his extended supervision order. They would also vet any people wishing to visit the defendant to ensure that they were not a negative influence, and would notify the department if he received visitors with whom he was not entitled to have contact by the terms of the order.

32. Clearly, this is a most valuable program for Aboriginal men such as the defendant. It lasts for 2 years, and counsel for the defendant, Ms Hall, submitted that that should be the duration of the extended supervision order. She acknowledged that the defendant faces a formidable task reintegrating into the community after such a long period of continuous custody, but argued that the 2 year program offered by Tribal Dreaming, along with an extended supervision order, provides a holistic approach to his adjustment to community life, as well as providing a valuable opportunity to harness his motivation to participate in the Tribal Dreaming program while subject to the order.

33. The State sought an order for 5 years, also emphasising that the defendant’s adjustment to life in the community must be a long term process. An order for a period of 5 years was supported by both Dr Roberts and Ms Howell. Dr Roberts described is as “appropriate”. Ms Howell was of the view that the period “would need to be not less than 5 years” to support the defendant’s readjustment to life in the community.

34. I respect the opinions of Dr Roberts and Ms Howell but, of course, they are expressed from a therapeutic point of view. The defendant may well need support and assistance over 5 years to adjust to community life, but the question is how much of that period should be subject to the rigors of an extended supervision order. Ms Hall’s argument that the period should be such as to provide him with motivation to work towards his rehabilitation is a sound one. I have expressed the view in other cases that a period shorter than the 5 years sought by the State might be more conducive to that end.

35. The decisive question in determining the duration of an extended supervision order is the interest of the protection of the community, which includes the defendant’s rehabilitation. I decided that a period of 3 years was appropriate. This would provide the defendant with the benefit of the Tribal Dreaming program, as well as a further year to consolidate his gains from it. It is, of course, open to the State to seek an extension of that period should the circumstances warrant it.

Conditions

36. For the most part the conditions of the order sought by the State are appropriate and are not in contest. I shall deal with those that are.

37. Condition 14 requires the defendant to obtain prior approval from his departmental supervising officer before permitting anyone to enter and remain, or stay overnight, at his approved address. Ms Hall submitted that this condition is more suitable for a high risk sexual offender, and noted that the reports refer to his need to be able to establish pro-social relationships. She argued that some trust must be shown to the defendant to encourage him to continue to respond in a positive way. She also noted Ms Atkinson’s evidence that the Tribal Dreaming case workers would assess the suitability of his visitors.

38. Condition 14 is complimentary to condition 28, which provides that the defendant must not associate with people that his supervising officer tells him not to. Mr Fernandez referred to the observation of Dr Roberts, quoted above, that the defendant has long been disposed to a criminal milieu, rather than people who uphold mainstream social values. The condition does not mean that the defendant can have no visitors; it means only that they must be approved by the supervising officer. Notwithstanding the assessment of visitors undertaken by the Tribal Dreaming case workers, this appears to me to be a suitable condition of the intensive supervision which the order necessarily entails. I decided that that condition should remain.

36. Condition 19 provides that if the defendant is unemployed, he must enter available employment as directed by his supervising officer, or make himself available for employment, education, training or participation in a personal development program as directed by that officer. Ms Hall objected to the requirement that the defendant must enter employment as directed or make himself available to do so. I accept Ms Hall’s submission that, while employment should be encouraged, it is inappropriate to force the defendant into employment, which may or may not be suitable for him, under the pain of penal sanction. On the other hand, it is appropriate to require him to undergo education or training to gain employment skills.

37. This is a view I have also expressed in other cases. I directed that this condition be amended so as to delete the requirement to enter employment or make himself available for it, and to preserve the requirement that he make himself available for education, training or participation in a personal development program.

38. Conditions 21 to 23 limit the capacity of the defendant to enter into a variety of contractual obligations and financial undertakings without the approval of his supervising officer. Ms Hall objected to these conditions, querying their relevance to the defendant’s pattern of offending and noting that, in any event, the Tribal Dreaming program would assist him in learning the skills to control his financial affairs. However, I accept that this is an area properly the subject of supervision under the order, directed to his reintegration into society and against the danger of his resort to criminal offending if he finds himself in financial difficulty. That condition remains.

39. Condition 32 prohibits the defendant from possessing or using any firearm within the meaning of s 4 of the Firearms Act 1996, or prohibited weapon as defined in the Weapons Prohibition Act 1998. Ms Hall objected to this only on the basis that it brings within the prohibitions of the order conduct which is already punishable under the Acts referred to. In oral argument, however, she acknowledged the legitimate concern of the State about weapons in the hands of the defendant, given his pattern of offending. While it is true that the condition involves an element of double punishment, I concluded that it is appropriate.

40. Conditions 34 to 36 require the defendant to notify his supervising officer of all devices he would use to communicate with or to across the internet, to obey all reasonable directions about his use of those devices and his access to the internet, and to allow his telephone and/or internet service provider to share information about his accounts with the supervising officer. Here also, Ms Hall argued that there is nothing to suggest that the defendant’s use of this kind of technology is in any way connected to his pattern of offending. However, I accept that these conditions are directed to the monitoring of people with whom he is communicating, which is an appropriate part of the required supervision. Those conditions remain.

41. Conditions 37 to 41 deal with the issue of search and seizure. Of those, Ms Hall objects to condition 40, which requires the defendant to allow the department to search any phone, tablet device, data storage device or computer that he may use. This, of course, raised the same issue as the conditions concerning the internet and telecommunications devices which I have just dealt with, and it also remains.

42. Certain amendments to condition 42, relating to the possession of classified material, were agreed to. That condition remains in its amended form.

43. Finally, Ms Hall objected to conditions 49 and 50, relating to medication prescribed for the defendant. As proposed, condition 49 requires the defendant to take all medications that are prescribed to him by his health care practitioners. Condition 50 requires him to notify his supervising officer within 24 hours if he ceases to take such medication, either on a temporary or permanent basis. Mr Fernandez argued that the need for the defendant to take medication might arise from the stress he was likely to face upon release into the community, given some history of anxiety and depression in the past. Ms Hall’s primary concern was that condition 49 on its face is mandatory (and, if breached, could carry a penal sanction). Thus, there was some tension between that condition and condition 50, which enables the defendant to stop taking medication provided his supervising officer is notified. It was agreed that this tension should be resolved by expressing condition 49 to be subject to condition 50. In that way it would be clear that the defendant should accept a course of medication prescribed for him but could not be compelled to maintain it if it proved to be unsuitable.

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Amendments

22 October 2020 - Publication restriction removed by Hidden AJ - judgment published 22 October 2020

Decision last updated: 22 October 2020