State of New South Wales v Pearson (Preliminary)

1. [1]

   The State of New South Wales seeks an order that the defendant be subject to an extended supervision order (ESO) for a period of three years. In the interim, the State seeks orders pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA) appointing two qualified psychiatrists and/or registered psychologists to examine the defendant and furnish reports to the Court, and an order that the defendant be subject to an interim supervision order (ISO) from 5 April 2021.

2. [2]

   The defendant did not oppose the imposition of an ISO, and consented to the appointment of the expert psychiatrists/psychologists. He did oppose some of the proposed conditions.

3. [3]

   The defendant was sentenced on 27 August 2010 for three offences committed on 5 April 2009, and for an offence connected with those offences that occurred between 9 April and 6 June 2009. Count 1 was an assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW). Counts 2 and 3 were each sexual intercourse without consent in circumstances of aggravation, namely that the defendant intentionally inflicted actual bodily harm on the victim, contrary to s 61J of the Crimes Act. Count 4 was an offence of doing an act intending to persuade a person to be called as a witness in a judicial proceeding to give false evidence, contrary to s 323 of the Crimes Act.

4. [4]

   The defendant was sentenced in respect of count 4 to a fixed term of 18 months’ imprisonment commencing 6 April 2009 and expiring 5 October 2010. In respect of count 1 he was sentenced to a fixed term of 18 months’ imprisonment commencing 6 October 2009 and expiring 5 April 2011. For count 3 he was sentenced to ten years’ imprisonment commencing 6 April 2010 and expiring 5 April 2020, with a non-parole period of six years and six months expiring 5 October 2016. For count 2 he was sentenced to imprisonment for ten years and six months commencing 6 October 2010 and expiring 5 April 2021, with a non-parole period of seven years expiring 5 October 2017.

5. [5]

   The offences constituted by counts 2 and 3 are serious sex offences by reason of being offences under Div 10 of Pt 3 of the Crimes Act, where the offence is punishable by imprisonment for seven years or more and the offence is committed in circumstances of aggravation.

6. [6]

   Although the defendant was eligible for parole on 5 October 2017, he was not released to parole until 5 December 2019, principally because he had not completed certain sex offender courses whilst in custody. His overall sentence expires on 5 April 2021.

Legislation

1. [7]

   Section 5B of the CHROA provides:

2. [8]

   Section 5I(2) and (3) define a supervised offender to include someone who is on parole for a serious offence. Section 4 defines serious offence as, relevantly, meaning a serious sex offence.

3. [9]

   Section 7(4) and (5) of the CHROA provide what is to occur at a preliminary hearing. In addition, the Court is given power to make an ISO under s 10A of the Act. In both cases, the test for making orders under ss 7(4) and 10A is the same, namely:

4. [10]

   If that is so, the Court must make the orders in s 7(4) appointing the psychiatrists and/or psychologists, and may make an ISO under s 10A. I am satisfied pursuant to s 10A(a) that the defendant’s supervision on parole will expire before the present proceedings are determined.

5. [11]

   The present application was made whilst the defendant was released to parole for a serious sex offence. Accordingly, the prerequisites in s 5B(1)(b) and (c) are made out. The defendant is a supervised offender pursuant to s 5I(2)(a).

Legal principles

1. [12]

   The task of the Court at the preliminary hearing on an application for an ISO is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; see also State of NSW v Clarke [2019] NSWSC 411 at [7]-[11].

2. [13]

   In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P said, when discussing the meaning of the phrase “unacceptable risk”:

3. [14]

   In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J said at [71]:

The defendant’s background

1. [15]

   The defendant was born in March 1978. He was the only child of his parents’ union. His father was an indigenous Australian. His parents separated prior to his birth. After being placed into foster care for a brief period of time, the defendant was raised by his mother until she subsequently met and remarried another partner. That relationship lasted several years, during which time two sons were born.

2. [16]

   When that relationship broke down, the defendant’s mother commenced a relationship with another partner when the defendant was aged about seven years. The defendant described this person as a violent alcoholic. As a result, the defendant was exposed to parental discord, family violence and substance abuse. He also said that he had experienced physical and emotional abuse by that person. As a result of this environment, the defendant began to rebel against his mother.

3. [17]

   He left home at the age of 15, and resided with a friend and his friend’s mother for about 12 months. He continued to have regular contact with his mother during this period. When her relationship with his stepfather broke down, he returned to live with her when he was aged 16 or 17.

4. [18]

   The defendant had difficulty at school in his early years. He was bullied over the colour of his skin. He struggled with learning difficulties and was placed in special classes in high school. He was suspended several times for behavioural disturbances before leaving school at the start of year 9. At around that time he formed connections with older antisocial peers, and began abusing drugs and alcohol. That apparently coincided with the period of time when he left home and first came into contact with the police and the juvenile justice system.

5. [19]

   He was first convicted of a number of motor vehicle offences in 1993 when he was aged 14. The defendant then offended multiple times every year up to and including 1999. Whilst the earlier offences committed when he was a child frequently involved motor vehicle offences, by the time he was 17 he had been charged with indecent assault and an aggravated sexual assault. The first of those charges was dismissed. The second one was committed for trial but the DPP decided not to proceed with the matter.

6. [20]

   In his early adult years the offending also involved minor drug offences and violent offending, including contravening an apprehended domestic violence order, for which he received a suspended 5 months’ prison sentence.

7. [21]

   When the defendant was aged around 27 years, he was convicted in 2006 of two counts of sexual intercourse with a person aged between 14 and 16 years, and with assault occasioning actual bodily harm. He was sentenced to periods of imprisonment for those offences. Other offences prior to the index offences included preventing a potential witness from attending a proceeding, for which the defendant was sentenced to 16 months’ imprisonment, some drive while disqualified offences and another offence of contravening an ADVO.

8. [22]

   The defendant reported a history of employment from around the age of 18 years, working as a storeman for several companies for periods of employment for up to 18 months at a time. Following a period of incarceration he worked in two further jobs but was fired from both of them. At the time of the index offences he was receiving government benefits.

The index offences

1. [23]

   The facts of the index offences are well summarised in the Risk Assessment Report prepared by Holly Cieplucha, a senior psychologist with the Serious Offenders Assessment Unit on 21 August 2020.

Psychiatric evidence

1. [24]

   The defendant was seen by Dr Matthew Jones, a psychiatric registrar, at Hornsby Ku-ring-gai Hospital in November 2003. He reported a recent history of paranoid thoughts, agitation, depression and anger management problems. Dr Jones noted that the defendant had attempted drug rehabilitation three times and was successful on his third attempt. Dr Jones said that the defendant showed no signs of a major depressive illness or psychotic disorders. He said diagnostically it would be best to describe him as having dysthymia, as well as a personality disorder. He also had lifelong polysubstance abuse issues and some difficulties with impulse control.

2. [25]

   The defendant was assessed by Dr Stephen Allnut, a psychiatrist, when he was facing charges of assault and preventing a potential witness from attending proceedings in September 2006. The defendant denied that he experienced any unusual voices, visions, tastes or smells. He said he did not receive messages from the TV, the radio or the newspaper. He denied any thoughts of external control, and he did not report the usual themes consistent with delusional beliefs.

3. [26]

   Although he denied that he abused substances, he also told Dr Allnut that he had commenced using speed at the age of 14, and used it until he was 26 or 27. He also used cannabis from the age of 12 until that time. He had abused methylamphetamine in the past. Two years prior to seeing Dr Allnut he commenced using amphetamines, which he took for approximately six months on a daily basis, but he then stopped using them. He had used anabolic steroids for about six months some three years before seeing Dr Allnut.

4. [27]

   Dr Allnut said that the defendant provided a history of the emergence of a Bipolar Affective Disorder approximately two and a half to three years earlier. Dr Allnut noted that the diagnosis had been confirmed by Professor Gordon Parker, and that the defendant had been treated with Zyprexa. Dr Allnut recommended that the defendant undergo a drug and alcohol rehabilitation program.

5. [28]

   Dr Allnut examined the defendant again in June 2010 in preparation for his sentencing for the index offences. The defendant told Dr Allnut that he noticed a change in his mental state occurring in about 2008 after stopping his medication. He began to have paranoia and to hear things. He had increased vulnerability to stress, irritability, agitation and fluctuation in mood which worsened over time in the context of ongoing drug abuse. He claimed to be hearing voices saying that his girlfriend was cheating on him.

6. [29]

   Dr Allnut said that the defendant was manifesting residual symptoms of resolving mood disorder. He said the defendant provided a history consistent with probable Bipolar Affective Disorder characterised by periods of mood fluctuations with periods of mania and depression. In addition, he probably experienced psychotic symptoms, predominantly aggravated by the concurrent abuse of a variety of illicit substances.

7. [30]

   On 22 October 2019, the defendant was assessed by Dr Gordon Elliott for the purposes of a parole review. Dr Elliott said that the defendant’s presentation was not consistent with a pervasive mood disorder such as Bipolar Affective Disorder or a Major Depressive Disorder. He said, with respect to Dr Allnut and Professor Parker, that the defendant’s history in custody did not support the diagnosis that they had made. Dr Elliott said that the defendant had persisting features of anxiety, but his other maladaptive personality traits were under much better control following the completion of his intensive psychological treatment programs in the CUBIT unit. Dr Elliott noted that the defendant had a significant history of major substance use disorders, in particular cannabis, stimulant and opiate use disorders.

8. [31]

   Dr Elliott considered that psychological interventions, programs and practical assistance would be the main avenues of care for the defendant. Dr Elliott thought that the defendant would also benefit from maintenance drug and alcohol counselling to ensure that he remains abstinent during the high risk initial release period from custody.

Risk Assessment Report

1. [32]

   As mentioned earlier, a Risk Assessment Report (RAR) was prepared on 21 August 2020 by Ms Holly Cieplucha.

2. [33]

   Ms Cieplucha concluded:

3. [34]

   Ms Cieplucha noted that the defendant had previously been assessed using the Wechsler Abbreviated Scale of Intelligence, at which time he was found to be functioning in the low average range of intelligence.

4. [35]

   Ms Cieplucha reviewed the defendant’s involvement in the High Intensity Treatment Program (HISOP) in which he had participated prior to his release on parole. She said that during treatment the defendant was described as reluctant to work on behaviours or attitudes that he perceived to be in the past. She said that according to his treating therapist, the defendant did not feel they were present anymore and tended to view them as context specific. That at times led to difficulty in realising the day to day impact of patterns in his life or the potential risk presented in his future. He was happy to discuss certain aspects of his offending, but became defensive when pressed or challenged.

5. [36]

   This was consistent with what the psychologist herself found when she discussed his offending with him. She noted that he expressed remorse and shame for his actions, but struggled to consider the impact of his actions on his most recent or prior victims. She said that whilst he claimed his behaviour was something he would never forget, he also believed “it’s time to move on, the past is the past”.

6. [37]

   Ms Cieplucha noted also that the defendant was referred to the Forensic Psychology Services community based maintenance following completion of HISOP, and he commenced weekly maintenance groups on 18 December 2019. She said that whilst the defendant described his engagement as helpful, particularly in managing situational anxiety and depression, departmental records suggested he had been unwilling to discuss certain issues in group, including disclosure of his offence history, had been difficult to engage, and was reactive to feedback.

7. [38]

   Ms Cieplucha noted that the defendant completed the EQUIPS Addiction Program in 2018. The case notes indicated that he participated well and gained insight over the course of the program.

8. [39]

   Ms Cieplucha noted previous risk assessments before carrying out her own. He had been assessed in January 2020 on the Level of Service Inventory – Revised (LSI-R), an actuarial risk instrument consisting of both static and dynamic risk factors related to general reoffending, as falling into the medium range of risk/needs for general and violent offending.

9. [40]

   The defendant had been assessed in 2007 on the Hare Psychopathy Checklist – Short Version (PCL:SV) and the Historical Clinical Risk Management - 20 (HCR-20) as being in the high risk range, and on the Violence Risk Appraisal Guide (VRAG) as being in the very high risk range.

10. [41]

    The STATIC-99R is an actuarial risk assessment instrument concerned with sexual recidivism. The total score ranges from -3 to 12. The defendant was assessed using the instrument in 2007 where his score was 6. That placed him in the high risk category relative to other male sexual offenders. He was re-assessed in 2011 and his score at this time was 7, placing him in the high risk category.

11. [42]

    He was assessed using the Static-99R Coding Rules Revised 2016 Scoring Manual in 2019 where his score was 5. The difference from the 2007 assessment was a reduction by one point on the basis that the defendant claimed he had lived with a lover, and by another point because of his age at that time.

12. [43]

    Ms Cieplucha assessed him using the STATIC-99R where his score remained at 5. That placed him in the Above Average Rrisk or Level Iva, which is the second-highest risk category described by the tool.

13. [44]

    The defendant was assessed using the STABLE-2007 tool in 2019 following completion of HISOP. This is a tool developed to assist clinicians in identifying stable dynamic risk factors. The defendant’s total score was 16, suggesting a high density of criminogenic needs relative to other male sexual offenders. He was reassessed using that tool by Ms Cieplucha in August 2020 where his score was 14. That score also suggested a high density of criminogenic needs.

14. [45]

    Combining the STABLE-2007 and the STATIC-99R placed him in the Well Above Average Risk level, or Level IVb.

15. [46]

    Ms Cieplucha also assessed him using the Risk of Sexual Violence Protocol (RSVP). This is a structured professional judgment tool where the offender is considered against a specific list of 22 dynamic risk factors deemed important in the literature. The factors relate to sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability.

16. [47]

    Dynamic risk factors relevant to the defendant included psychological adjustment (attitudes that minimize sexual violence, self-awareness, stress or coping), mental disorder (substance use, violent or suicidal ideation) and social adjustment (intimate and non-intimate relationships and non-sexual criminality).

17. [48]

    Finally, the defendant was assessed by Ms Cielplucha using Dynamic Risk Factors (Actuarial Assessment – Violent Offending) (VRS). This is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, and in particular those who are being considered for release from institutions to the community after a period of treatment. The overall result of the VRS estimated the defendant’s risk of being convicted of further violent offences as being within the high risk range.

18. [49]

    In discussing risk scenarios, Ms Cieplucha said:

19. [50]

    Ms Cieplucha concluded her report by saying:

20. [51]

    Ms Cieplucha reviewed the recent case notes concerning the defendant, and sent an email on 25 March 2021 which relevantly said:

21. [52]

    A Risk Management Report was prepared by Alexandra Crichton and endorsed by Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer, on 7 October 2020. The report noted the assessments that had been carried out by Ms Cieplucha in the RAR, the defendant’s current parole conditions, the defendant’s behaviour in custody, his willingness to undertake intervention and the programs he had undertaken while in custody. The report also noted the defendant’s response to Community Corrections supervision over the years.

22. [53]

    The report then set out some recommended conditions based on the defendant’s risk factors, risk scenarios and prior offending. The conditions concerned a schedule of movements, accommodation, electronic monitoring, employment and education, non-association, electronic communications and internet access, search and seizure, personal details and appearance, medical intervention and treatment, programs and risk related interventions, and contact with children under 18 years of age.

Determination

1. [54]

   As noted earlier, the defendant consented to the appointment of two independent experts, and indicated that he would not be heard against the making of an ISO. It is, nevertheless, the Court’s obligation to come to a determination whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In order to justify the making of an ESO, the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

2. [55]

   The two index offences contrary to s 61J(1) of the Crimes Act were serious instances of a serious sex offence. The sentencing judge found that the offending was at the upper end of the mid-range. The attack on the victim was one of prolonged violence. The victim was fortunate that she did not sustain grievous bodily harm as a result of the assaults upon her. The matter was seriously aggravated by the fact that, to the defendant’s knowledge, the victim was 26 weeks pregnant. Notwithstanding that, the defendant punched and kicked the victim in the stomach, seemingly because he had formed the view that the baby she was carrying was probably not his.

3. [56]

   The violence involved the two counts of sexual intercourse when she was not physically able to resist him because of the violence inflicted on her, including choking. The violence only ceased when the victim managed to escape from the defendant whilst in the street, and run to a nearby house where the occupants rang the police.

4. [57]

   Nor was this the first time the defendant had engaged in violence towards a person with whom he was in an intimate relationship. In February 1999 he was convicted of assault occasioning actual bodily harm and other offences in relation to his partner. These offences were committed on 1 January 1998.

5. [58]

   Later in 1999 he was convicted of using an offensive weapon to prevent lawful detention. That and other offences arose out of an assault on his then girlfriend.

6. [59]

   In December 2004 the defendant contravened an ADVO where he threatened and, arguably, assaulted his then partner, for which he was sentenced to five months’ imprisonment, suspended on entering into a s 12 bond.

7. [60]

   In 2006 the defendant was convicted of two counts of sexual intercourse with a person aged between 14 and 16 years and with assaulting her and occasioning actual bodily harm. For those offences he was sentenced to imprisonment for one year, four months and one week with a non-parole period of nine months.

8. [61]

   The RAR determined that the defendant’s combined risk rating was ‘Well Above Average’ risk levels compared with other male sexual offenders when taking into account both static and dynamic risk factors. His risk of violent reoffending was said to be within the high range. The most salient risk areas for sexual violence were hostility to women, problem solving skills and negative emotionality. His highest treatment needs in relation to violent offending were in the areas of violent lifestyle, interpersonal aggression, emotional control, weapon use, substance use, stability of relationships, violence cycle and impulsivity. I accept, as a result of the recent information from Ms Cieplucha, that the defendant’s overall risk has reduced, but he still remains within the second-highest category, being Level Iva.

9. [62]

   At the present time there appears to be disagreement amongst the psychiatrists as to the defendant’s proper diagnosis. However, even on the report most favourable to him, the report of Dr Elliott of 30 October 2019, Dr Elliott considered that he had persisting features of anxiety, and Dr Elliot had concerns that the defendant remained reliant on mirtazapine to manage his anxiety symptoms. Dr Elliot was also concerned with the possibility that he would return to substance abuse, although he had made considerable advances in that area in the past few years. Dr Elliott considered that he should be subject to random urinary drug screening to ensure he remained abstinent from all illicit substances. Such drug screening could not take place if no ESO was in place.

10. [63]

    Although it may be accepted that the defendant has been progressing well since his release on parole, the period of time is only for some 16 months in circumstances where he has spent the previous ten years in custody.

11. [64]

    All of these matters cause me to reach the view that if the matters alleged in the supporting documentation are proved, that would justify the making of an ESO.

Conditions

1. [65]

   The defendant opposes some of the proposed conditions by the State absolutely, and in other cases provides suggested alternatives. The parties negotiated on the conditions up to the commencement of the hearing, so that by that time only 3 groups of conditions were not agreed.

2. [66]

   In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL said this concerning conditions:

3. [67]

   In State of New South Wales v Bugmy [2017] NSWSC 855, Fullerton J said at [89]:

4. [68]

   In State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883, Garling J said:

5. [69]

   In State of New South Wales v Burns [2014] NSWSC 1014 Beech-Jones J said at [59]:

6. [70]

   In Wilde v State of New South Wales [2015] NSWCA 28 the Court of Appeal said at [53]:

7. [71]

   The defendant opposes these conditions. The defendant submitted that he has been the subject of scheduling requirements since his release on 5 December 2019. The Offender Integrated Management System (OIMS) case notes show that he has been keeping to his schedules although “struggling with some of the EM scheduling”. The defendant submitted that the ongoing requirement for scheduling is oppressive, and counter-productive to his rehabilitation. The defendant’s submissions detailed a number of occasions where issues arose about scheduling to submit that the approach being taken on those occasions was oppressive.

8. [72]

   The defendant submitted that his pattern of offending and risk profile relates to domestic relationships and not to opportunistic or premeditated attacks. In that way, he submitted that the requirement does not truly mitigate the risk. He submitted further that neither the RAR nor the RMR indicated that the scheduling was a necessary requirement in the interests of community protection.

9. [73]

   The State accepted that the defendant has been compliant with his schedule of movements since his release. The State accepted that it is a restriction on the defendant’s liberty, but says that the conditions are not addressed to opportunistic or premeditated attacks. The State submitted that the schedule of movements is intended to promote the defendant's engagement in activities which are prosocial, and to help him manage his time. If left to his own devices, the State submitted he may become bored and frustrated, and may engage in inappropriate activity, which might involve antisocial people and drugs. The State submitted that if the defendant progresses to Stage 3 in the monitoring, he will no longer be required to comply with a schedule of movements.

10. [74]

    As noted earlier, the RAR said that the most likely scenario for future serious sexual or non-sexual violence would be against an intimate partner, and would involve the defendant experiencing feelings of inadequacy, lack of trust and jealousy, loss of self-control or rejection. The justification by the State for the proposed schedule of movements is to avoid boredom, and to ensure that the defendant’s time is spent in prosocial activities, lest he be tempted to resort to illicit drugs.

11. [75]

    The defendant has completed courses to assist in his abstinence from drugs. The evidence suggests that he has been successful in staying abstinent from drugs since some minor prison breaches during his present sentence, albeit they occurred some years ago. The risk of a resort to drugs is small.

12. [76]

    The defendant has complied well with his scheduling arrangements since his release to parole. It is apparent from some of the incidents recorded in the OIMS case-notes that the strictness with which the existing schedule is being enforced may well be counter-productive, in the sense that the obvious frustration which the defendant feels may result in bad behaviour which may in turn lead to a breach of his conditions. That is certainly not conducive to assisting the rehabilitation of the defendant, and could have the result, by increasing the defendant’s anxiety, of putting the community at risk. I note what was said in that regard by Fullerton J in Bugmy at [89] (see [65] above), and by Fagan J in State of NSW v BG (Final) [2019] NSWSC 200 at [39] cited by Garling J in Sturgeon (No 2) (see [66] above).

13. [77]

    In addition, his risk level has reduced since the first assessment made by Ms Cieplucha (see [51] above).

14. [78]

    In these circumstances, I consider that the limited time the defendant will be on an ISO is an appropriate time to give the defendant the opportunity to demonstrate that he is compliant generally with his conditions, not because he is required to be, but because he wants to be. The defendant has a strong incentive to do so because he would know that at any time the ISO is renewed, and at the time any ESO is put in place (quite apart from the power in s 19 of the CHROA), the Court could impose the conditions concerned with a schedule of movements.

15. [79]

    Proposed conditions 5 to 7 should be omitted.

16. [80]

    The condition originally proposed by the State said this:

17. [81]

    The defendant submitted that this was unworkable because he was living at his mother’s premises and did not have the right to determine who should enter and stay at the premises.

18. [82]

    As a result, the State proposes the following modified condition:

19. [83]

    The defendant submitted that this condition did not form part of the parole conditions, there had been no problem from visitors visiting or staying at the defendant’s residence, and that the condition did not deal with the identified risk, which was sexual violence against an intimate partner.

20. [84]

    In my opinion, the State’s modified condition is appropriate. Given the most likely scenario of risk, a person who may stay overnight with the defendant is not conceptually far removed from a person who might be an intimate partner of longer-standing. An appropriate dichotomy is between a random, impulsive attack on a stranger (here, not a risk), and sexual violence against a woman that is known to the defendant (here, the most likely risk scenario), whether any sexual relationship is of longer or shorter duration.

21. [85]

    The State’s modified condition should be included.

22. [86]

    The State proposes the following condition:

23. [87]

    The defendant submitted that the condition is too broad and is not properly tailored to mitigate the defendant's specific risk profile. He submitted that his physical health is irrelevant to previous offending and the risk of future offending. The key issues, the defendant submitted, are substance abuse and associated mental health issues, and the condition should be restricted to those matters.

24. [88]

    The defendant proposed that the condition should read:

25. [89]

    The State submitted that the defendant has significant physical health problems which have caused him stress and anxiety. The State submitted that if the defendant experiences stress about his health, that presents as a potential risk because of the defendant's past history of adopting poor coping mechanisms, including using drugs and resorting to interpersonal violence.

26. [90]

    The defendant’s proposal assumes that there is a clear demarcation between physical and mental problems. There is force in the State’s submission that the defendant’s physical health impacts upon his anxiety condition, which may in turn manifest itself in poor coping mechanisms. It does not seem that any such link between the offender’s mental health issues and physical ailments (if any) was identified in Wilkinson. Each case must, of course, be decided on its own facts. I am satisfied there is such a link in the present case.

27. [91]

    The condition as proposed by the plaintiff should be included.

Conclusion

1. [92]

   I make the following orders: