The State of New South Wales v Manna

[2017] NSWSC 463

Supreme Court

New South Wales

Medium Neutral Citation:

The State of New South Wales v Manna [2017] NSWSC 463

Hearing dates:

28 February 2017

Date of orders:

21 April 2017

Decision date:

21 April 2017

Jurisdiction:

Common Law

Before:

Walton J

Decision:

I dismiss the primary application made by the State for a continuing detention order. I grant the State’s application for an extended supervision order in accordance with its alternative application in the further amended summons filed in court upon the conditions sought therein and contained in Annexure A and accordingly will make orders for compliance under s 11 of the Act.

 

Rather than making an order this day, I shall foreshadow a proposed order and provide the parties an opportunity to propose any variation to the order, reflecting this judgment, before final orders are made.

 

The proposed order consists of two parts as follows:

 

1. I order pursuant ss 5F(1) and (9)(1)(a) of the Act that the defendant be subject to a high risk violent offender extended supervision order for a period of 5 years from the date of this judgment and, pursuant to s 11 of the Act, I make an order directing the defendant comply with the conditions set in the Schedule marked Annexure A attached to this judgment for the duration of the order.

 2. The interim extended supervision order made on 13 April 2017 is dissolved.

Catchwords:

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violent offender – application for a continuing detention order – application for an extended supervision order – whether the defendant poses an unacceptable risk of committing a serious violence offence – whether an extended supervision order would provide adequate supervision – the implication of evidence given by the defendant – application for a continuing detention order dismissed – application for an extended supervision order granted

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
Anderson v State of New South Wales [2016] NSWCA 86
Attorney-General of NSW v McGuire [2016] NSWSC 158
Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeals and Review) Act 2001 [2015] NSWSC 1925
Kalokerinos v Burnett [1996] NSWCA 288
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 New South Wales v McMaster [2015] NSWCA 228
R v Manna (District Court (NSW), Nield DCJ,12 September 1997, unrep)
R v Manna [1999] NSWCCA 314
State of New South Wales v Armstrong [2015] NSWSC 1510
State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280
State of New South Wales v Donovan [2015] NSWSC 1254
State of New South Wales v Manna (preliminary hearing) [2016] NSWSC 1841
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447; [2003] HCA 48

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Adriana Giuseppe Manna (Defendant)

Representation:

Counsel:
Ms G Wright (Plaintiff)
Ms R Mathur (Defendant)

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

File Number(s):

2016/350556

Publication restriction:

Nil

Judgment

1. By a further amended summons filed in court on 28 February 2017, the State of New South Wales (“the State”) sought an order that the defendant, Adriano Giuseppe Manna (“the defendant”), be the subject of a high risk violent offender continuing detention order for a period of 12 months from the date of that order, pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The State sought a related order pursuant to s 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 any continuing detention order made by the Court.

2. In the alternative, the State sought a high risk violent offender extended supervision order with respect to the defendant for a period of 5 years from the date of any order made pursuant to ss 5F(1) and 9(1)(a) of the Act. A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in a Schedule accompanying the further amended summons which is attached to this judgment as Annexure A.

3. The defendant conceded that he was a high risk violent offender as defined in s 5E(1) of the Act but opposed the primary application for a continuing detention order upon the basis that this Court would be satisfied, pursuant to s 5G(1) of the Act, that adequate supervision will be provided by an extended supervision order either under modified conditions to those proposed by the State in Annexure A (the defendant having disputed some conditions proposed by the State) or otherwise as considered appropriate by this Court. Ms Mathur, counsel for the defendant, conceded that the defendant would ultimately not wish to be heard against the making of any of the conditions in Annexure A if the Court found it appropriate to make them in the circumstances of this case.

4. The defendant was charged on 23 May 1997 that, on 17 February 1997, he wounded a person with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW) (“the offence”). This was a “serious violence offence” for the purposes of s 5A of the Act. He was charged, in the alternative, that on the same date, he attempted armed robbery with an offensive weapon.

5. The defendant pleaded guilty to the charge concerning the offence and was sentenced, after conviction, to a term of imprisonment of 20 years with a non-parole period of 15 years commencing 19 February 1997. The non-parole period expired on 18 February 2012: R v Manna (District Court (NSW), Nield DCJ,12 September 1997, unrep) (“Manna No 1”). An application for leave to appeal the sentence was dismissed by the NSW Court of Criminal Appeal in R v Manna [1999] NSWCCA 314 (“Manna No 2”).

6. Two days after the offence the defendant was arrested, whereupon he admitted shooting the victim but would not say why he had done so. (Some months later, he told a psychiatrist that the shooting occurred because the victim had been supplying heroin to a young girl and later stated he had been threatened by the victim.) The defendant was released on parole on 7 December 2012 but the parole was revoked on 12 July 2014 in consequence of the defendant being charged with further offending including common assault (none of the offences falling within the definition of “serious violence offence”) and breaches of parole conditions. The balance of his parole expired on 24 February 2017.

7. By a summons filed on 23 November 2016 (and an amended summons filed in court on 12 December 2016), the plaintiff sought an interim detention order pursuant to s 18B of the Act or, in the alternative, an interim supervision order pursuant to ss 10B and 10C(1) of the Act. Those applications were the subject of a preliminary hearing before McCallum J on 12 December 2016. After the preliminary hearing, her Honour appointed two qualified psychiatrists pursuant to s 15(4) of the Act, namely, Dr Andrew Ellis and Dr Jeremy O’Dea to conduct separate psychiatric examinations on the defendant and to furnish reports to the Courts. Her Honour reserved her decision as to the balance of the application for interim orders.

8. By a decision issued on 19 December 2016, her Honour refused to make an interim detention order but indicated an intention to make an interim supervision order on conditions proposed in the amended summons: State of New South Wales v Manna (preliminary hearing) [2016] NSWSC 1841 (“Manna No 3”). On 3 February 2017, her Honour made orders pursuant to ss 10B and 10C(1) of the Act that the defendant be the subject of an interim supervision order from 24 February 2017 for a period of 28 days to reside at the residence of Sammy Manna (his father) at Kingswood in accordance with the conditions in the Schedule annexed to the amended summons. That order was renewed on the same conditions on two occasions by the Court as presently constituted, each renewal being for a period of 28 days with the last expiring on 17 May 2017.

STATUTORY FRAMEWORK

Objects

9. The primary object of the Act, as stated in s 3(1) is, relevantly for the purposes of these proceedings, “to provide for the extended supervision and continuing detention of… high risk violent offenders so as to ensure the safety and protection of the community”. Section 3(2) provides that another object of the Act is to encourage such offenders to undertake rehabilitation.

10. The word “ensure” which is referred to in the object of the Act is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [61].

Application

11. The State may apply for an extended supervision order or a continuing detention order against “an offender” pursuant to Pt 2 Div 1 s 5H and Pt 3 Div 1 s 13A, respectively. The proceedings are to be conducted as civil proceedings pursuant to s 21.

Part 1A

12. Part 1A of the Act concerns the supervision and detention of high risk offenders.

13. The power to make a high risk violent offender extended supervision order or a high risk violent offender continuing detention order (“orders”) resides in ss 5F(1) and 5(G)(1), respectively, of the Act. That power is, however, governed by s 5E(1) which confines the exercise of the power to a particular class of offender, namely, a high risk violent offender, an expression defined in s 5E(2). Thus, the provisions of s 5E(2) have been described as the gateway to the power to make orders under ss 5F and 5G: Lynn at [55] and [64] (per Beazley P); State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 (“Donovan”) at [24].

14. The power to make orders is premised upon the Court being satisfied to a high degree of probability (being a special level of satisfaction) that the offender poses an unacceptable risk of committing a serious violence offence (that assessment being one of “likelihood” of that risk) in the event that the offender is not kept under supervision: Lynn at [82] and Donovan at [12] and [24].

15. The term “violent offender”, found in s 5E(2), is defined in s 4 of the Act to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for “a serious violence offence”. That expression is defined in s 5A, the relevant components of which, for present proceeding are as follows:

5A Definition of “serious violence offence”

(1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person:

(a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).

(2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

(2A) A reference in subsection (1) (a) to:

…

(c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.

(3) A serious indictable offence is:

(a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed…

16. The offence of wounding with intent to murder under s 27 of the Crimes Act 1900 with which the defendant was charged and convicted is a serious violence offence within the meaning of s 5A(1)(b) of the Act. Section 5A(2A)(c) removes any doubt, as to that conclusion in the present matter, by providing that ‘wounding with intent to murder’ constituted a serious violence offence. Further, that subsection applies to offences committed before the commencement of that subsection and to persons already servicing a sentence of imprisonment when it commenced: Sch 2 Pt 8 cl 15.

17. The power to make a continuing detention order under s 5G is subject to two requirements, the second of which is not applicable to an application for extended supervision orders. The first repeats the gateway conditions described above, namely the offender is a high risk violent offender. The second requirement is that the Court must be satisfied that “adequate supervision will not be provided by an extended supervision order.” The issue as to whether the Court would be satisfied that the conditions in Annexure A provide adequate supervision is the linchpin of the debate in these proceedings.

Particular requirements for the making of orders

18. An application for a continuing detention order may only be made in respect of a detained violent offender or a supervised violent offender: s 13C(1). The present application falls within the first of these criteria. The defendant is a “detained violent offender” as when the application was made by the filing of originating process on 23 November 2016 (“the original summons”) and an amended process on 28 February 2017(“the further amended summons”). The defendant was in custody for, a serious violence offence, as earlier discussed, being wounding with intent to murder: s 13C(2)(a)(i) of the Act and see State of New South Wales v Armstrong [2015] NSWSC 1510 at [5] (per RA Hulme J).

19. The primary application of the State therefore meets the threshold procedural requirements to the bringing of an application for a continuing detention order.

Determining an application for Continuing Detention Order

20. Subject to ss 5E and 5G, the determination of an application for a continuing detention order is governed by Pt 3 of the Act and in particular Div 2 thereof. Section 17(1) provides that this Court may determine an application under Pt 3 for a continuing detention order by making an extended supervision order or making a continuing detention order or by dismissing the application.

21. Section 17(4) stipulates matters to which the Court must have regard in determining this application. Of particular significance are sub-paras (a)--(f), (h)--(i) (reciprocal provisions are also found under s 9(3) as to application for extended supervision orders).

22. Section 25B(1) provides that the Court may make an extended supervision order in respect of a person at the same time that it makes a continuing detention order with respect to that person. However, this is subject to the requirements of s 5G(1) that the Court may only make a continuing detention order if the Court is, inter alia, satisfied that adequate supervision will not be provided by an extended supervision order.

PRINCIPLES

23. The scope and operation of Pts 1, 2 and 3 of the Act received extensive consideration in Donovan and Lynn.

Sections 5E(1) and (2): High Risk Violent Offender

24. As to the Courts making a determination under s 5E:

1. The nature of the risk posed by an offender is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The “criterion of unacceptability depends upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders”: Lynn at [126] (per Basten JA).

2. “The concept of ‘risk’ clearly involves a risk to the community; although the qualifier ‘unacceptable’ could be read in an extended sense as meaning deemed unacceptable by the Court. It is still the composite phrase which must be understood as referring to a risk to the community”: Lynn at [127] (per Basten JA).

3. The precise parameter or standard or norm against which the determination under s 5E(2) must be made are not immediately evident from the text of the provision. A determination as to whether something is unacceptable is an evaluative task and evaluative determinations require a context in which they are to be made: Lynn at [51] (per Beazley J). The required state of satisfaction in s 5E(2) requires the exercise of a discretionary judgment: Lynn at [82] (per Basten JA).

4. The impact of an order on the offender is not a factor in assessing unacceptable risk which focuses rather on the assessment of factors relevant to the content of the risk itself: Lynn at [137] (per Basten JA), Attorney-General of NSW v McGuire [2016] NSWSC 158 at [43] (per Rothman J).

Section 5G: Adequate Supervision

25. As earlier mentioned, the test for the making of a continuing detention order contains an additional requirement compared to those governing the making an extended supervision order, namely, the Court must be satisfied that adequate supervision will not be provided by the extended supervision order.

26. The following principles derived from Donovan apply to that test:

1. The onus lies on the State to prove that adequate supervision will not be provided by an extended supervision order: Donovan at [23].

2. The test is not whether there is a risk that adequate supervision will not be provided by an extended supervision order, but rather that adequate supervision will not be provided by an extended supervision order: Donovan at [22].

3. Unlike the considerations arising under s 5E where an unacceptable risk must be assessed as if there was no supervision at all, the resolution of the question as to whether there is adequate supervision for the purposes of s 5G, requires an assessment of the particular extended supervision order, which is proposed in the proceedings: Donovan at [24] and [73]. The state of satisfaction under s 5G(1) is, therefore, lower than the state of satisfaction required under s 5E: Donovan at [24].

4. The structure of the Act suggests a hierarchy of final orders that acknowledges the fundamental nature of the right to personal liberty. Extended supervision orders are addressed first, in Pt 2 of the Act, and must logically be considered first. Continuing detention orders are addressed in Pt 3 of the Act and may be made only if the court is satisfied that adequate supervision will not be provided by an extended supervision order. In so providing, the Act expressly acknowledges that a continuing detention order made after a final hearing is, in effect, an order of last resort. It is to be made only after a careful assessment of the adequacy of the supervision that will be provided by an extended supervision order: Manna No 3 at [19] (per McCallum J).

5. Whilst the concepts “unacceptable risk” under s 5E(1) and “adequate supervision” under s 5G(1), both entail evaluative judgments, they serve different purposes and operate in different ways: Donovan at [69].

6. The determination of whether an extended supervision order will provide “adequate supervision” is an evaluative judgment undertaken by the court according to the circumstances of the individual case and having regard to objects of the Act (giving primacy to the objects stated in s 3(1)): Donovan at [77], State of New South Wales v Donovan [2015] NSWSC 1254 at [56] (per McCallum J), State of New South Wales v Armstrong [2015] NSWSC 1510 at [11].

7. The inquiry as to adequate supervision also requires consideration of the secondary purposes of the Act, that is, to encourage rehabilitation and the wide range of conditions which could be imposed by an interim supervision order: Anderson v State of New South Wales [2016] NSWCA 86 at [17].

8. The assessment as to whether an extended supervision order will not provide adequate supervision must be informed by consideration of risk factors, including psychiatric or psychological evidence, and the risk of reoffending (which also encompasses the circumstances or factors which may contribute to that risk): Donovan at [63]-[65]; [75]-[77]; [87], [89] and [90].

1. Even if the Court determines that adequate supervision will not be afforded by an extended supervision order, the Court still has discretion to decline to make a continuing detention order: Donovan at [15].

Implications of evidence given by the defendant

27. It would appear that the practice in these matters has been that the defendant has not given evidence. This may be explained by the judgment in Donovan at [117] where it was stated:

[T]here is nothing in the Act to displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts… .

28. Thus, the immunity from giving evidence that would expose the offender to a penalty is overridden by s 15(4) of the Act, in so far as the offender may be directed to undergo an examination by court-appointed psychiatrists or psychologists: see Donovan at [119].

29. In consequence, the Court of Appeal held in Donovan at [117], with respect to a defendant to proceedings in which the State sought continuing detention orders:

No inference adverse to an offender can be drawn in circumstances where the offender’s giving evidence would lead the offender to being cross-examined by the State with a view to eliciting evidence to support a continuing detention order.

30. Further, it was found a person whom the State wishes to detain for a period extending after the term of his or her sentence is not required to go into evidence lest unfavourable inferences be drawn against him or her: Donovan at [119].

31. Here, the defendant gave evidence. Nothing in the abovementioned findings in Donovan results in a defendant’s evidence having a special or elevated status in the proceedings. Plainly, it forms part of the evidentiary mix which underpins the Court’s evaluation as to whether a proposed extended supervision order will provide adequate supervision for the purpose of s 5(1) of the Act (and ultimately the determination as to the making of a continuing detention order).

32. However, the evidence of the defendant does enable the Court to examine, through the defendant’s own testimony, the veracity of his case as to why, in this case, an extended supervision order would be adequate supervision for the purposes of s 5G(1). This includes an evaluation being made of the likelihood of offending conduct occurring when under the restraint of an extended supervision order. Clearly, this evidence may also bear upon the prospects of rehabilitation.

33. I shall make some observations about the defendant’s evidence at the conclusion of the section of this judgement dealing with factual findings.

FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN S 17(4)

Evidence before the Court

34. The Court received in evidence a substantial amount of documentary material including the records of criminal proceedings, records of the NSW State Parole Authority and case notes, prepared by supervising officers of the defendant, on the Offender Integrated Management System maintained by Corrective Services (“the case notes”). In addition, the Court received various reports, including the following:

1. Dr Peter Klug (4 June 1997 and referral to the trial of the defendant for the offence);

2. Anthony Chambers, Psychologist (then at Silverwater Corrections Centre), endorsed by Dr Darren Nicholls, Senior Specialist Psychologist at the Fairfield District Office of Corrective Services NSW (2 April 2012);

3. Ms Anita McGregor, Psychologist, of Wentwall Forensic Clinic (17 June and 14 October 2013);

4. Dr Richard Parker, Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services (3 June 2016, annexed to his affidavit, sworn 2 February 2017) (Dr Parker holds a doctor of philosophy, but hereafter referred to as “Mr Parker”);

5. Dr Jeremy O’Dea, court appointed Forensic Psychiatrist (31 January 2017); and

6. Dr Andrew Ellis, a court appointed Forensic Psychiatrist (31 January 2017).

35. The State relied upon the following evidence by affidavit: Vincenzo Camporeale (affirmed 23 November 2016, 1 December 2016 and 9 February 2017); Barry Williams (affirmed 10 December 2016 and 25 January 2017); Mr Parker’s evidence (referred to above); Angela Rybak (sworn 3 February 2017); Danielle Matsuo (affirmed 9 February 2017) and Ellen McCarroll (affirmed 10 February 2017), with only the last witness being required for cross-examination.

36. The defendant relied upon the following evidence in this case: his own affidavit (affirmed 21 February 2017) and the affidavit of Martin Daniel Bernhaut (affirmed 22 February 2017), whom was not relied upon for cross-examination.

General Factual Background

37. The defendant was born in 1973 and grew up in Penrith. He is now aged 43. His mother of an English background was born in Australia and his father was born in Italy. He has an older sister and younger brother. He remembers being generally happy as a child and in particular remembers receiving loving attention from his grandmother and grandfather.

38. In his affidavit, he deposed he had difficulty in his upbringing. Whilst the defendant had a loving relationship with his grandparents, he had a very poor relationship with his mother which persists to the present. The defendant contended he was mistreated by her at an early age. His school life was troubled, he had had altercations with teachers and was expelled. He claimed to have been abused at school age. He has developed a strong relationship with his father, although there was earlier disagreement.

39. At the age of around 13 or 14, the defendant started using drugs in school. This started with cannabis and then later used anabolic steroids, MDMA/LSD and cocaine. He thought the steroids “messed him up” and made him very angry – he would “snap really quickly”. The defendant used anabolic steroids until he was around 19 or 20 years of age.

40. In 1996, when the defendant was 22 years of age he spent 7 months in prison. Whilst in prison he found out that a friend of his grandparents to whom he had become very close as a child (he described her as “Aunt” and sometimes “Mum”) had committed suicide whilst in the Psychiatric Unit of Nepean Hospital. He described this death as “hit[ting him] really hard” and “I still find it hard to deal with it”. He was refused permission to attend the funeral.

41. After he was released from prison in December 1996, he continued using drugs.

Criminal Offending

42. The defendant's other criminal history discloses use of violence and abuse of prohibited substances.

43. The defendant committed three offences which were violent in character and/or exhibited aggression prior to the offence, they included:

1. Assault committed on 8 February 1996 at 22 years of age. The victim was his mother. He became aggressive and produced a knife from a bedroom cupboard and pressed it against her left breast just below the collar bone. She felt that it was so forceful that it would penetrate her body but it did not. He then kicked the stereo in. She fled and called police. He was sentenced to a fixed term of six months;

2. Malicious damage (2 counts): On 11 February 1996, after an argument with his father, he damaged his father's work vehicle by smashing the windscreen, boot and bonnet. He then damaged the caged police vehicle while being taken to Nepean Hospital. He was convicted of two counts of malicious damage, sentenced to six months' imprisonment and ordered to pay compensation to police; and

3. Three months after the assault, he was convicted of possessing a shortened shot gun and malicious damage. The firearm was found by police on 31 May 1996 during a search of his vehicle. On being transported to Long Bay Gaol he damaged the cage of a police vehicle. He was fined but, in lieu, given a fixed term of several days in prison.

44. Other convictions committed prior to the offence were drug supply, driving offences and convictions for dishonesty offences.

45. He was released from prison on parole on 30 December 1996 and discharged from parole on 30 January 1997, 18 days before the offence.

46. The offence was committed on 17 February 1997 against a truck driver. At about 4pm, the victim was restocking Coca-Cola vending machines at Werrington TAFE in Sydney's West. His wife and seven year old son were present. The victim went to one of the machines, unlocked it, counted the remaining stock to determine the number of cans needed to refill the machine, removed the machines’ money box and returned to the truck. He placed the money in the truck’s safe. He refilled a machine and realised more cans were required. He was in the process of obtaining more cans from his truck when he was confronted by the defendant who was holding a pistol in his hand and who demanded money. The victim explained that he did not have the keys to the safe but would give the defendant keys to the vending machines. The defendant fired a shot striking the victim in the chest, causing the victim to fall to the ground, whereupon the defendant fired four further shots, striking the victim's jaw, chest, left arm and left leg. The victim suffered significant injuries and the victim's seven year old son witnessed the shooting.

47. On 12 September 1997, Nield DCJ (“the sentencing judge”) of the Penrith District Court sentenced the offender, as earlier mentioned, to 20 years imprisonment with a minimum term of 15 years and an additional term of five years. The non-parole period expired on 18 February 2012. The total sentence expired on 18 February 2017.

48. The sentencing judge described the offence as an "intentional, deliberate and cold-blooded attempt to kill the complainant". His Honour was "convinced that the prisoner shot the complainant 4 times intending to kill him simply because the armed robbery of the complainant, which he attempted and in which he had shot the complainant once in the chest, had gone wrong". His Honour referred to his previous irrational behaviour and abuse of steroids, cannabis and LSD but did not view those factors as playing any real part in the decision to take a pistol and attempt to rob the complainant or in the subsequent decision to kill the wounded victim. The sentencing judge said “it was only by the Grace of God that the complainant was not killed".

49. The sentencing judge remarked that the defendant was 23 years of age at the time of the offence. His Honour observed that the defendant had a history of the use of violence and the abuse of prohibited substance. His Honour stated, the defendant was not sorry for what he had done and had not expressed contrition to the psychiatrist, Dr Klug, whom he saw before his sentencing. The sentencing judge found the defendant to be a “determined criminal who is not prepared to change his ways” and observed he felt the offence was justified. This finding was supported by the fact the offence was committed only seven weeks after the defendant was released from prison and in the light of previous offences. His Honour said "it is impossible to say whether or not he will change his ways but everything that he has done in the past suggests that he is unlikely to do so".

50. The sentencing judge recorded that the defendant told Dr Klug that the victim who was shot was a man from whom “a 14 year old girl who he knew obtained heroin”, and that she had gone into prostitution. Upon seeing the Coca-Cola truck, he moved to the truck to “talk to the man”. He advised the psychiatrist that an altercation occurred and that he had shot the man five times during that encounter. The sentencing judge remarked that it was obvious that what the defendant had told the psychiatrist was “contrary to the known circumstances and that he had given this reason in the hope of reducing his culpability for his conduct.”

51. The State contended that the defendant maintained this fiction and had never given a reliable account of his reason for shooting the victim. As I will later find, I agree with that submission.

52. In the Court of Criminal Appeal, Grove J (with whom Handley J agreed) dismissed the appeal on sentence: Manna No 2. Hidden J was in the minority and would have allowed the appeal and resentenced the applicant to penal servitude for 18 years comprising a minimum term of 12 years and an additional 6 years.

53. Grove J considered that the sentence imposed upon the defendant was capable of being viewed as severe but that the facts of the offence were “grave”. His Honour rejected a contention on appeal that the sentencing judge fell under error in holding that the applicant’s psychiatric history provided no explanation for the crime. There was no evidence of psychosis, delusions or cognitive impairment. The appellant had given a demonstrably false explanation for the shooting. His Honour indicated that the defendant was an “apparently undependable historian”. His Honour identified that the summarised opinion of Dr Klug was that the defendant had “a significant past psychiatric history and a long history of a poly drug abuse and dependence”. The psychiatrist had also considered that, at the time of the commission of the offence, the defendant was probably intoxicated with a variety of drugs. His Honour found no error in the conclusion reached by the sentencing judge, that the defendant’s previous irrational behaviour or use of drugs had played no real part in his decision to take a pistol and attempt to rob the complainant of his money or his subsequent decision to kill the wounded victim.

54. Hidden J was also of the view that the account given by the defendant to the psychiatrist, prior to his sentencing for offence, as to the reasons for shooting the victim of the robbery was false and that he was in other respects “an unreliable historian” (Manna No 2 at [21]). However, his Honour considered that the sentencing judge was in error in finding that the defendant’s psychiatric history provided no explanation for the crime (Manna No 2 at [23]). His Honour recorded that the defendant’s abuse of drugs and alcohol from an earlier age, particularly steroids, which contributed to his aggression. The defendant had little self-control.

55. After the commission of the offence, the defendant committed three offences whilst in gaol and on parole:

1. On 19 May 1999, whilst in custody, some two years after his imprisonment, the defendant approached another inmate at Goulburn Correctional Centre in the prison yard and punched him to the head. The victim approached the defendant and the defendant punched him to the head again. Another inmate joined in the attack and the victim suffered a broken jaw. The defendant pleaded guilty and was sentenced in the Goulburn Local Court to a fixed term of four months imprisonment for assault occasioning actual bodily harm.

2. On 26 May 2014, whilst on parole, the defendant committed offences of larceny and using an unregistered trailer (“the May 2014 offence”). He attached a mobile lighting tower to his car from a road and then moved the equipment. He was convicted and given a good behaviour bond for 12 months.

3. On or about 18 July 2014, nineteen months after being released on parole, he was charged with four further offences committed on 12 July 2014. He was convicted of common assault, malicious damage and larceny. A charge of being armed with intent to commit indictable offence was dismissed (“the July 2014 offences”). On 16 December 2014, he was sentenced in Bankstown Local Court to imprisonment for six months commencing on 18 July 2014. An apprehended domestic violence order of two years' duration was made on 16 December 2014.

56. At the time of the interim hearing, there was only available to McCallum J the police statement of facts regarding the July 2014 offence, which she treated with caution. With respect to her Honour, that approach was prudent as the remarks on sentence produce a different picture of the circumstance of the defendant’s offending in relation to those charges. The transcript of the Local Court hearing records the magistrate, Magistrate Spence, as stating the defendant and the complainant had had a short term relationship. The defendant had met her four days before the relationship quickly broke down and she asked him to leave. An argument arose after the defendant took the complainant’s computer from her home (he said inadvertently; she alleged theft). It must be noted his Honour rejected the complainant’s account, and in some significant respect, her credibility.

57. The defendant admitted having a knife in his possession and as having had occasion to say to the victim "open the garage door, or I'll slit your throat, cunt" (being words attributed to him by the victim). However, the Magistrate was not satisfied "about the knife incident that occurred within the premises", noting that it was "simply word against word there". On that basis the most serious charge (of being armed with intent to commit indictable offence) was dismissed.

58. As to the assault, it was not accepted by the Magistrate that the defendant struck the victim a number of times to the head/face, the photographs of the victim's injuries not corroborating this assertion. The Magistrate found that “the assault” in his view "has just been made out", presumably on the defendant’s own admission that he pushed the victim to the ground.

59. The defendant was returned to custody on 18 July 2014 and his parole was revoked on 25 July 2014 (and was made effective from 12 July 2014). The reasons cited by the Parole Authority for revoking parole were breach of the condition to be of good behaviour (based on the further charges), failure to report as directed and failure to undergo assessment and counselling as directed.

60. The defendant discussed the offences with Corrective Services staff on 2 February 2016. He is reported as saying that he caused damage to her garage when retrieving his own property however, he denied assaulting her and claimed that he was acting in self-defence when she attacked him with a syringe. The defendant’s claim for self-defence was not made out in the Local Court. The State submitted that this explanation demonstrates his lack of insight into and remorse for his violent offending. Of real significance to the present application, it was contended the offences indicated that, he is unwilling to comply with the conditions of parole.

61. Ms Mathur acknowledged that the further offences are relevant and “arguably of concern”, but noted that common assault is not a “serious violence offence” within the meaning of the Act. I will return to these contentions.

Parole

62. The defendant was released to parole on 7 December 2012 by an order executed by the State Parole Authority on 22 November 2012.

63. Prior to his release, the defendant had been assessed as a medium risk for violent reoffending (see the report of Mr Chambers of 2 April 2012). A number of conditions were attached to his parole, in addition to a good behaviour order, as follows:

15. The offender must totally abstain from alcohol.

16. The offender must, if so directed by the Officer, seek assistance in controlling his or her abuse of drugs and/or alcohol and must authorise in writing that his or her medical and other professional and/or technical advisers or consultants make available to the Officer a report on his or her medical, and/or other conditions at all reasonable times.

17. The offender must not use, or be in possession of, a prohibited drug or substance.

18. The offender must not undertake testing for drug and/or alcohol use, where facilities are available, at the direction of the Officer.

19. The offender must, if so directed by the Officer, enter a residential rehabilitation centre and must not discharge himself or herself without the approval of that Officer.

20. The offender must, if so directed by the Officer, undergo psychological assessment and counselling at a place or places determined by that Officer and must authorise in writing that his or her medical and other professional and/or technical advisers or consultants make available to the Officer a report on such assessment and counselling at all reasonable times.

21. The offender must, if so directed by the Officer, undergo psychiatric assessment, psychiatric counselling, other medical assessment or other medical treatment at a place or places determined by the officer and must authorise in writing that his or her medical and other professional and/or technical advisers or consultants make available to the Officer a report on such assessment, counselling or treatment at all reasonable times.

22. The offender must not contact, communicate with, watch, stalk, harass or intimidate the victim and family.

23. The offender must not associate with any member and/or associate of an Outlaw Motorcycle Gang without the express prior approval of the Officer.

24. The offender must not frequent or visit Penrith Local Government Area.

25. The offender must not possess or use any firearms.

64. The State submitted that the defendant’s record whilst on parole would give a strong indication that an extended supervision order would not provide adequate supervision, even though an extended supervision order was more restrictive. In support of that submission, attention was directed to particular instances of the poor parole performance of the defendant.

65. In considering this issue, I have closely examined the case notes, reports prepared by Community Corrections Officers and determinations made by the State Parole Authority in relation to those reports. The conclusion I draw from that material, aided by the opinions of Dr Ellis and Mr Parker (to which I will return in greater detail later) and the report of Mr Chambers and evidence given by Ms McCarroll is that for about the first 12 months of his parole, as McCallum J observed in Manna No 3, the defendant engaged “relatively well” with his supervision obligations having regard to his long period of incarceration prior to his release on parole. His supervising officer commented that, at the end of 2013, the defendant was adjusting nicely in the community and had been reporting on a fortnightly basis. Thereafter there occurred a substantial and stark deterioration in his performance (from December 2013). Further, there are a number of factors which, when taken together, substantially temper the significance of his failures on parole in so far as those factors may otherwise be an indicator that an extended supervision order will not provide adequate supervision.

66. My reasons for that conclusion will be discussed here in light of the particular contentions raised by the State in support of the aforementioned broad submission. It must be observed, however, that conclusions ultimately bearing upon the question of adequate supervision, including the nature and extent of the risk, and the concomitant question of the risk of reoffending need to be considered in the light of the entirety of the factual circumstances discussed under this heading and later included in my considerations after a detailed analysis of the reports and opinions of the Drs Ellis and O’Dea (“the court appointed experts”) and Mr Parker and Mr Chambers.

Response to Treatment Programs

67. The State submitted that the defendant failed in his participation and treatment programs and breached his parole conditions accordingly. My detailed discussion of this topic comes later under the heading “Treatment and Rehabilitation Programs”.

68. It may be immediately accepted that the defendant failed in his participation in the Controlling Anger and Learning to Manage it (“CALM”) program. In the EQUIPS Foundation and Aggression (“EQUIPS”) program, the defendant made an observation attributed to him regarding the taking of guns into parole sessions and was uncooperative and disruptive. However, these failures in participation in group therapy programs need to be seen the light of the evidence of Dr Ellis that treatment in a group environment was not an appropriate treatment mechanism for the defendant because of the defendant’s personality type. Further, as I will later discuss, it may not be properly said, in my view, the defendant was not willing to participate in the Violent Offender Therapeutic Program (“VOTP”), even though in the final stages of his involvement he elected not to continue with the program.

69. For further consideration under this heading was the defendant’s failures when referred to individual counselling. He attended eight sessions before the counselling was terminated by mutual agreement due to limited evidence of his engagement or progress. The defendant failed to attend two psychology sessions and had rescheduled three others with his appointed psychologist, Ms McGregor. He received breach notices in July and October 2013 in consequence of those failures.

70. Clearly, the defendant failed in this respect to take the opportunity provided to him for treatment. However, there are two qualifications as to this assessment which I will discuss further below. The first is that the defendant had shown the capacity to respond to psychological treatment where there was a better form of engagement between the practitioner and the client. Secondly, the officers managing the extended supervision program indicated a potential to work with the defendant to establish a suitable psychological treatment regime.

71. Finally in this respect a submission was made that the defendant rejected engagement with a private psychologist after the cessation of his earlier counselling. This occurred not long before the revocation of his parole and for reasons that I will later give I do not accept this submission.

Reporting to supervising officers

72. There appears to have been adequate reporting by the defendant until at least late October 2013 and most likely for the balance of the year. He failed to properly report to his supervising officer on 25 and 27 March 2014 and received a breach of parole notice.

Police Intelligence – association with drugs and improper associations

73. Until late December 2013 there was very little evidence of improper association and no evidence that the defendant was breaching conditions associated with taking of drugs. A urinalysis in June 2013 showed nil.

74. In July 2013, he attended a cafe in Double Bay said to be frequented by OMCG members. However, no contact was made between the police and the defendant and no observations were made of the defendant being with such persons, as the police intelligence was obtained through a drive-by. Ms Mathur accepted, primarily by reference to this report, that there may have been some association with OMCG but that it was minimal until late 2013.

75. From December 2013, an inference may be drawn that he was forming inappropriate associations by going to undesirable places and having an association with persons having or dealing in drugs based upon the following:

1. In December 2013, police were stopped by the defendant whilst with another person in Kings Cross. Upon searching the vehicle the police found an "empty small resealable plastic drug bag" in the defendant’s car. He told police he had been to a brothel and believed he had been given water containing drugs. He had passed out for seven hours. In cross-examination, the defendant could not recall the incident with the plastic bag. The defendant accepted that he had associated with a person, a prostitute, who was in his car. He “assumed” she had taken drugs. Police also expressed suspicions as to his activities in Kings Cross. It might be noted that the defendant was directed to stay out of Kings Cross on 3 April 2014.

2. On 19 February 2014, he was at a location with another person of interest who claimed that a person (the victim) had stolen his car. The person of interest organised for the victim to attend the location and when the victim went inside the house for the purpose of purchasing drugs, he was assaulted.

3. On 20 March 2014, he was stopped by police in his vehicle at Kings Cross. He told police that he was looking for a prostitute and explained that he had spent over ten years in prison after shooting a heroin dealer who was selling to a 14 year old girl.

4. On 22 May 2014, during a vehicle stop by police, an illicit drug (methylamphetamine) was located in his car. A passenger in the defendant's car was known by police to be supplying “ice” to customers in the eastern and western suburbs of Sydney. The defendant accepted this incident had occurred during cross-examination.

5. On 2 June 2014, the defendant was driving a car which was stopped by police. Stolen property was found in the car. Police believed the car was being used to commit crimes and that the defendant had made a number of new associates around Dulwich Hill and was frequenting the area often.

6. On 6 June 2014, the defendant was driving a car in which two other “persons of interest” were present. The car was stopped by police and searched. A set of scales and resealable plastic bags were found. The police formed the view that the three of them were supplying ice. The defendant provided an implausible explanation for this incident, namely, that he did not know what the other persons were carrying.

(No charges were laid as a result of these incidents).

76. My observation regarding these matters will be made after the consideration of additional factors identified by the State.

Parole Violations

77. The defendant was warned at the outset of his parole that a failure to comply with the conditions of the parole might lead to the revocation of the parole and reincarceration.

78. In addition to the breach of conditions associated with psychological treatment and the aforementioned association with a drug supplier, there were other violations which in ascending order included:

1. In May 2014, the defendant changed his address without informing his parole officer. To this might be added the defendant’s acceptance in cross-examination that he lied to his supervising officers about accommodation whilst under parole as he had undergone a period of homelessness.

2. The defendant failed to report to his parole officer on 25 and 27 March 2014.

3. The aforementioned May 2014 offences committed by the defendant of larceny and using an unregistered trailer.

4. The offences of assault, malicious damage and larceny in July 2014.

79. Two related considerations may be added. The defendant admitted to Mr Parker his dishonesty regarding some parts of his employment to his supervising officer whilst he was on parole between 2012 and 2014. Further, the State Parole Authority reported on 22 May 2015 that the defendant had admitted non-compliance with the exclusion locations within his parole condition in order to visit his father.

80. In consequence, the State Parole Authority revoked the defendant’s parole on 25 July 2014, having regard to breaches of the good behaviour requirement of his parole, his failure to undergo psychological assessment and counselling as appointed as well as his failure to report to his supervising officer.

81. These violations together with the aforementioned references to inappropriate associations reveal that by the time of the revocation of the defendant’s parole there had been breaches of the conditions of the parole and the re-establishment of inappropriate associations with persons and drugs, from late 2013 to July 2014. However, there are countervailing considerations.

82. In addition to the observations which have been made in relation to treatment and rehabilitation programs, there are some important factors that need to be taken in account into assessing the contribution of this parole record to an assessment of the nature of the risk posed by the defendant, the likelihood of his reoffending, the likelihood of the defendant being properly responsive to supervision in the community and ultimately whether adequate supervision may be provided by an extended supervision order in this matter (having regard to the conditions set out in Annexure A to this judgment).

Other Factors

83. Those countervailing or ameliorating considerations are as follows:

1. The failure of the defendant under parole and his development of associations with undesirable associates was one of gradual or delayed onset. This has significance in two respects. First, the behaviour which might indicate a propensity to reoffend occurred after a period of nearly 12 months of abstinence from such conduct and in particular violent behaviour. His failure to attend upon treatments only becomes relevant, in that respect, (and then only moderately) if it were thought that he would be resistant to assistance of that kind under an extended supervision order. That is a conclusion, for reasons which I will develop later, which I do not consider is available in this case. Secondly, the gradual nature of the onset of the failure provides a much greater capacity for detection particularly under the substantial measure of structured support and supervision offered under and in conjunction with the proposed extended supervision order: Donovan at [87], [97], [98] and [109].

2. In expressing confidence that an extended supervision order would manage the risks associated with the defendant in the community, Dr Ellis opined that the proposed extended supervision order was both more onerous and entailed significantly more monitoring and restrictions than operated in the parole environment. He added that the defendant was being managed by an extended supervision team, which had more experienced officers and smaller case load.

3. Dr Ellis also opined that there were changed circumstances operating from the time the defendant failed under parole, that is, the age of the defendant and there was much more known about the defendant. However, in my view, there are three further significant changed circumstances which cast a different light upon the defendant’s parole performance and whether his parole experience may give a proper basis for a negative prediction as to his compliance with supervision under an extended supervision orders: a change in the stability of accommodation, the availability of family support and the attainment of employment. I will deal with each in turn below.

84. As mentioned earlier, it was a condition of the defendant’s parole that he must not frequent or visit the Penrith Local Government area. When he commenced his parole, he took up a new residence in two bedroom private rental in Marrickville. The case notes thereafter demonstrate a tiering down in the defendant’s ability to obtain and maintain stable accommodation as a result of the absence of a rental history and his prison record. By September 2013, he was advised that he needed to settle in one place. He experienced difficulties in meeting rental payments and moved between friends, hostels and other accommodation. He received a breach notice, as earlier discussed, on 20 May 2014 for changing his address without notice.

85. Two particular considerations may be mentioned in this respect. First, as submitted by Ms Mathur, the defendant had significant adjustment issues after leaving prison. He spent his entire adult life in custody having committed the offence when he was 23 years of age. He was a man that had been more or less “institutionalised”, a fact he recognised himself and had raised with Community Corrections during his parole.

86. Secondly, instability in accommodation combined with these adjustment problems to create a substantial hurdle for the defendant. More significantly, however, as I will later discuss, unstable accommodation is a particular risk factor for reoffending with the defendant.

87. When viewed in the light of the information provided in the case notes and his frank admissions as to being untruthful to case officers regarding his accommodation, the following evidence by the defendant may be accepted:

Q. When you were on parole you were not willing to accept the supervision of Corrective Services, were you?

A. I don’t think anyone likes supervision of Corrective Services but I always called my parole officer, your Honour, when I had problems, I needed their help. I became homeless. I ended up sleeping in my car and then after I told them they said they would have to beat me. I started lying about where I was staying and that is where the lies started. That is where the trouble started.

88. The defendant’s failures to report homelessness and his inability to achieve stable accommodation may be properly described as a failure to communicate and a misjudgement in managing difficulties but it can hardly be described as a resistance to supervision when the defendant had no means to overcome the problem whilst unemployed and was prohibited from travelling to Penrith (when accommodation was available). Finally, he received little or no assistance in this regard from Corrective Services.

89. The corollary of the defendant’s accommodation problems was his inability to associate with his family and more particularly his father because of his geographic restrictions. Whilst it is reasonably clear that the defendant’s father provided assistance to him after being placed on parole, by May 2013, his father was ill. This restricted access by the defendant to his father given he could not travel to visit his son. During parole, the defendant regularly sought access to his father by means of the alleviation of the geographical restrictions. His requests were consistently refused. The restrictions also had the effect of isolating the defendant from significant other parts of his family an issue he consistently complained about with his parole officer. Whilst these difficulties do not excuse the defendant’s breach of parole in visiting his father they do offer some explanation and highlighted the importance of the defendant’s father in providing stability, support and advice in his life.

90. The defendant’s lies about employment which he confessed to Mr Parker were plainly breaches of his parole obligation and undermine his capacity to succeed in parole.

91. I do not consider the note appearing in Mr Parker’s report confirms that the defendant had no employment during his parole. Rather the note raised doubts about the first professed employment with a steel hire company in March and April 2013 (being reported to end in May 2013) and the final instance of employment with a business named “Top Tech Automotive” not long before the revocation of his parole. There seems to be little doubt that he completed the traffic controllers course in September 2013 and obtained a position in that area, albeit on a part time basis. Thereafter, and until it would appear in November 2013, he took up a position with Killards Excavation. I agree with Ms Mathur that the defendant did obtain employment but he was unable to sustain it.

92. The significance of these considerations regarding employment is twofold. First, I do not consider that the defendant failed to make any effort to work but it does seem that his efforts were reasonably poor. Secondly, there is no evidence of any support being given to the defendant in seeking work by his parole officers. Thirdly, as I will mention later, there does seem to be some greater opportunity for assistance arising out of the office managing extended supervision orders.

Behaviour whilst in custody

93. The defendant relied upon reports of behaviour in custody as consideration weighing against the making a continuing detention order. This was advanced upon the basis that in a highly structured and monitored environment the defendant is capable of positive commendable behaviour and a diligent work ethic. The defendant’s record reflects both positive and negative behaviour.

94. The defendant did receive some positive reports leading to his parole.

95. A Forensic Psychologist, Ms Natasha Ryan, who furnished a report to the Serious Offenders Review Counsel (“SORC”) in September of 2007 noted that in the past few years the defendant had displayed:

“generally appropriate behaviour and has complied with centre routine… This is seen as an indication that Mr Manna may be responsive to intervention and in conjunction with his recent displays of insight may mean that this is an opportune time for him to progress to a lower classification and engage in intervention. He was assessed as being a moderate risk of reoffending, as determined by an actuarial risk assessment”.

253. Similarly, whilst I consider the defendant’s behaviour in custody, particularly in relation to violent offences, to be unsatisfactory and thereby an indicator he may not comply with the supervision, that assessment is counterbalanced by the most recent experience in custody, which is presumably illustrative of the defendant’s current disposition. I do not consider that this factor may lead to a conclusion that adequate supervision may not be provided for the purposes of s 5G(1). I refer in these respects to paragraph [102] of this judgment.

254. Turning then to the defendant’s submissions as to the defendant’s engagement with illicit drugs. I accept the submission made that the defendant has a history of abusing illicit drugs (and in Dr O’Dea’s report it is observed that a history of a substance abuse disorder exists) and that absent of strict monitoring, the defendant will most likely take such substances and, in consequence, associate with anti-social peers on release from custody. Further, I accept that his denial as to taking methamphetamine in gaol does raise questions as to whether he would be truthful with those supervising him as to that matter.

255. There are, however, two countervailing considerations which would warrant this factor not leading to a conclusion that adequate supervision would not be provided under the extended supervision order. The first is the evidence of Dr Ellis, which was to the effect that, whilst the defendant does not have a clear understanding, as to how he can reliably maintain abstinence from illicit drugs in the future, he does understand that “substances have been a problem for him and there’s a general, that is a general sense that he wants to be free of them into the future”. This conforms with his general attitude to restore a “normal” life. Secondly, there are the very strict conditions contained with the extended supervision order with respect to alcohol and drugs (see conditions 24-27 of Annexure A).

256. I turn then to the opinion of the court appointed experts and Mr Parker. The State accepted that there was a congruence of opinion between the court appointed experts that an extended supervision order was more appropriate than reincarceration.

257. The State sought to meet, in part, the force of those opinions, so far as they expressed a view in favour of an extended supervision order over a continuing detention order by submitting that the court appointed experts were dealing with the question of adequate supervision from a clinical perspective and not purely a risk perspective. The State also submitted the experts were primarily concerned with rehabilitation. I consider this to be a hollow distinction in this context.

258. The State posed to the court appointed experts questions, which required the experts to address the risk posed by the defendant, the actual level of risk and factors contributing to it, as well as, whether adequate supervision would be provided by an extended supervision order.

259. In responding, the court appointed experts gave expert opinion as to violence risk predictions and how fluctuating risk factors might contribute to the overall risk. Dr Ellis opined that rehabilitation and risk management were not mutually exclusive goals. Whilst it may be contended that the ultimate question as to the likelihood of the defendant reoffending falls to the court based on a wider range of considerations, than those entertained by the experts, it cannot be accepted that the expert evidence in these proceedings does not expressly deal with issues from a risk perspective or give opinions bearing upon that question.

260. The submission also sits uncomfortably with the provisions of Pt 3 of the Act. An application for a continuing detention order must include a report from, inter alia, a qualified psychiatrist or registered psychologist that assesses the likelihood of the offender committing a further serious violence offence. It is implicit from those provisions (and s 15(4) of the Act) that the opinions provided by the experts will directly relate to the considerations of the risk posed by an offender and the likelihood of violent reoffending.

261. Turning then to the expert opinions, Dr Ellis was of the view that the “treatment and supervision plan” addressed the relevant risks, and, noting that supervision and monitoring may never eliminate the risk, the plan proposed would “significantly reduce it”. Dr O’Dea recommended referral to psychiatrists for consideration of psychiatric medications in order to manage the defendant’s mood disorder which was characterised by anger and depression. He considered that this was amenable to treatment. He further considered that, if the defendant remained abstinent from alcohol and illicit substance use, engaged in successful anger management and general mood management and engaged in structured supervision, his risk of committing a further serious violence offence could be adequately and appropriately managed in the community. Mr Parker opined that, in the event that the defendant was the subject of an extended supervision order it is likely that he would benefit from intensive supervision and case management by Corrective Services. An extended period of supervision under the control of a high risk offender team, he considered, would assist the defendant in developing a law abiding lifestyle and would help him develop new thinking styles which support such a lifestyle, although an engagement with supervising staff would be required.

262. Both court appointed experts made plain in their respective reports that there is little or no utility in prolonging the incarceration of the defendant (whether for treatment purposes or otherwise) and there was no empirical evidence that prolonged incarceration reduced recidivism or that custody based treatment programs reduced recidivism as compared to community based programs. Both experts stated that, with adequate supervision and monitoring, the defendant’s risk of violence can be managed in the community. Of particular significance is Dr Ellis’ opinion that “abstinence from substances, stable employment and stable accommodation [were] likely to have a greater impact on violence reduction than cognitive behavioural programs aimed at violence reduction” given the high likelihood those matters will be successfully managed by the proposed extended supervision order.

263. I agree with the defendant’s submission that the opinions of the court appointed experts strongly support the Court in making a finding that any risk posed by the defendant can be adequately addressed by supervision pursuant to the proposed extended supervision order. Further, the experts identified a number of risk factors which, if eliminated or controlled, would significantly reduce the likelihood of reoffending such as accommodation stability, employment opportunities and access to drugs. In my view, the proposed extended supervision orders, when understood in the light of the nature of the risks posed by the defendant as discussed above and a proper understanding of his responsiveness to supervision and treatment, will have the effect of eliminating or adequately controlling those risk factors with a commensurate reduction in the likelihood of the defendant reoffending.

264. There is one consideration which bears repetition and correlates with the last mentioned extract from the opinions of Dr Ellis. In my view, the fact that the defendant has obtained stable accommodation with his father and will receive advice and support from his father and other members of his family, and has adopted a mindset to do what is required, to restore some semblance of a life in the community, after a very long period of incarceration, are very significant factors pointing to the likelihood of the defendant complying with the supervision arrangements. These factors also point to the prospect for rehabilitation in the future under an extended supervision order in conformity with s 3(2) of the Act and the projections made by Mr Parker. These considerations result in substantial satisfaction that adequate supervision will be provided by the proposed extended supervision order.

265. In short, these factors materially contribute to the Court’s satisfaction that adequate supervision will be provided by the proposed extended supervision order.

266. It is true, as the State submitted, the defendant did cavil with some of the proposed conditions. Whilst that approach cannot be accommodated because of the risks associated with his involvement in the community, as I have earlier described, he cannot be criticised in my view for having a desire to broaden his participation in the community and his contact with family. In any event, he gave an instruction to his counsel that he would effectively give a submitting appearance with respect to the conditions proposed in Annexure A. The Court considered those conditions appropriate.

CONCLUSIONS

Application for a Continuing Detention Order

269. In all the circumstances, I am satisfied, pursuant to s 5G(1) of the Act, that adequate supervision will be provided by the making of an extended supervision order as sought in the State’s alternative application and thereby the application for the continuing detention order must be refused.

Application for an Extended Supervision Order

270. There is no dispute in these proceedings that, in the alternative, an extended supervision order should be made. In my view, it is appropriate to do so essentially for the reasons discussed earlier in this judgment but ultimately for the purposes of the protection and safety of the community and for the rehabilitation of the defendant.

271. None of the conditions proposed by the State for the extended supervision order in Annexure A should be altered. In particular, I accept the evidence of Dr Ellis that conditions requiring weekly notice of the defendant’s plans and notice of change to be essential features of the conditions imposed under the extended supervision order so as to provide adequate supervision.

272. Accordingly, I propose to make extended supervision orders in the terms sought by the State. There was no dispute as to the duration of the order. It will be made to operate for 5 years.

ORDERS

273. In the circumstances, I dismiss the primary application made by the State for a continuing detention order. I grant the State’s application for an extended supervision order in accordance with its alternative application in the further amended summons filed in court upon the conditions sought therein and contained in Annexure A and accordingly will make orders for compliance under s 11 of the Act.

274. Rather than making an order this day, I shall foreshadow a proposed order and provide the parties an opportunity to propose any variation so long as it reflecting this judgment before final orders are made.

275. The proposed order consists of two parts as follows:

1. I order pursuant ss 5F(1) and (9)(1)(a) of the Act that the defendant be subject to a high risk violent offender extended supervision order for a period of 5 years from the date of this judgment and, pursuant to s 11 of the Act, I make an order directing the defendant comply with the conditions set in the Schedule marked Annexure A attached to this judgment for the duration of the order.

2. The interim extended supervision order made on 13 April 2017 is dissolved.

276. In order to facilitate the disposition of the matter in that fashion the State shall file and serve short minutes of order by 4pm on Monday, 24 April 2017. The defendant shall either confirm the order proposed by the State or submit an alternative form of order by 4pm on Wednesday, 28 April 2017. The Court will then make orders administratively in Chambers. In the meantime, the interim order made on 13 April 2017 will continue in operation.

**********

Annexure A (38.5 KB, docx)

Decision last updated: 21 April 2017