State of New South Wales v Pacey

1. [1]

   HIS HONOUR: By summons filed on 30 October 2015 the State seeks the following relief:

   1. (1)

      An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:

   2. (2)

      An order pursuant to s 10B of the Act that the defendant be subject to an interim supervision order from 31 December 2015 for a period of 28 days.

   3. (3)

      Further, an order pursuant to s 11 of the Act directing the defendant, for the period of the interim supervision order, to comply with the conditions set out in the Schedule to the summons.

2. [2]

   The prayers for relief in the summons are based upon the following supporting documentation:

   1. (1)

      Affidavit of Elizabeth Wells sworn 30 October 2015.

   2. (2)

      Affidavit of Elizabeth Wells sworn 5 November 2015 and the exhibit “EW-1” to that affidavit.

   3. (3)

      Affidavit of Elizabeth Wells sworn 26 November 2015.

3. [3]

   The orders are opposed. For the reasons that follow, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 7(4). It follows that the application must be dismissed: s 7(5).

Background

1. [4]

   The defendant was born in April 1979 and turns 37 next year. He is of Aboriginal descent and was raised on aboriginal missions in Forster and Taree. He has a criminal history dating back to the Children’s Court in 1992. Mr Pacey’s first appearance in an adult court was in the Local Court in 1997 for break, enter and steal for which he was sentenced to imprisonment for 12 months. He was subsequently imprisoned for other offences thereafter.

2. [5]

   On 18 May 2007 Mr Pacey was involved in an incident for which he was originally charged with cause wounding/grievous bodily harm to person with intent to murder and maliciously inflict grievous bodily harm with intent to do so. He pleaded guilty to the alternative offence of maliciously inflict grievous bodily harm with intent and was sentenced on 9 September 2009 to 8 years imprisonment with a non-parole period of 5 years. That was an offence under s 33 of the Crimes Act 1900 and carried a maximum sentence of 25 years, with a standard non-parole period of 7 years.

3. [6]

   Mr Pacey was released on parole on 21 October 2015 to reside in Nunyara Community Offender Support Program Centre. He still lives there. Mr Pacey’s sentence expires on 31 December 2015.

Legislative scheme

1. [7]

   The issues that I am required to determine are a function of the following provisions of the Act:

2. [8]

   The proceedings before me are a preliminary hearing: s 7(3). For the purposes of this preliminary hearing, having regard to the way in which the matter has been conducted, the only issue that I am required to determine is whether Mr Pacey is a high risk violent offender. Before a finding to that effect can be made, I must be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious violence offence if not kept under supervision: s 5E(2).

3. [9]

   The task of the court and its purpose at the preliminary hearing stage was described in State of New South Wales v Manners [2008] NSWSC 1242 at [8] – [9]:

4. [10]

   At preliminary hearings, dealing with interim orders, the threshold question is to be resolved without a weighing of the documentation or predicting the ultimate result and without regard to what evidence the offender might call at a final hearing: Tillman at [98]. It is however appropriate to give weight to risk avoidance: Attorney General for New South Wales v Winters [2007] NSWSC 611 at [7]. It is also appropriate to bear in mind that the “fundamental objective of the legislature is the protection of the public” and the safety of the community: Attorney General for New South Wales v Gallagher [2006] NSWSC 340 at [21]; Attorney General for New South Wales v Quinn [2007] NSWSC 873 at [10].

5. [11]

   Section 5E(1) of the Act provides that an offender can only be made subject to an order “if and only if” he or she is a high risk violent offender. McClellan CJ at CL referred to this expression in Gallagher at [34] as follows:

6. [12]

   In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal observed that:

7. [13]

   With particular regard to the risk of an offender committing a serious violence offence, the definition of that term in s 5A informs the nature of the risk that must be considered. In State of New South Wales v Lynn [2013] NSWSC 1147 at [16], Button J observed that:

8. [14]

   In Lynn, the offender had a great many convictions for offences of violence of which a “great majority … [were] not of the greatest seriousness”: [20]. However, his Honour went on at [27] to say this:

The evidence

1. [15]

   Section 9(3) of the Act lists the matters that must be taken into account by the Court on an application for an extended supervision order. Some of the matters listed necessarily inform the present exercise. Section 9(3) is in these terms:

2. [16]

   A risk assessment report dated 30 June 2015 was prepared by Ms Karen Chapman. Ms Chapman is a registered senior psychologist with Corrective Services. Part of Ms Chapman’s report summarised matters relating to Mr Pacey as follows:

3. [17]

   The index offence was committed on 18 May 2007. Mr Pacey was at that time serving a period of 9 months on parole following a 16 month sentence for an assault occasioning actual bodily harm in 2006. The sentencing judge described the events that made up the offence in these terms:

4. [18]

   It was not in dispute that the victim sustained a severe wound to a triceps muscle and two deep stab wounds to the abdomen that penetrated the lining of the abdominal cavity and made an opening into the stomach. There was also a superficial cut to the liver and a partial injury to the upper part of the diaphragm just near the top of the heart. These wounds were all surgically repaired. The victim remained in hospital for nine days.

5. [19]

   The sentencing judge observed that the offence was serious and warranted a sentence of full time custody. His Honour accepted that Mr Pacey was institutionalised and that he would require a lengthy period of close supervision and support upon his release from custody. He recommended that the process of assimilating him into the community should begin while Mr Pacey was still in custody.

6. [20]

   During his interview with Ms Chapman, Mr Pacey acknowledged that he had inflicted the injuries to the victim but remained adamant that he was not intoxicated at the time he did so. He said he was attempting to purchase drugs. He continued to maintain, although the sentencing judge disbelieved, that the assault was in response to being grabbed and threatened by the victim and that he was himself fearful for his own safety.

7. [21]

   Since 1999 Mr Pacey has been returned to custody on four occasions to serve the balance of his parole. This has been due to failures to report, alcohol and drug use and further offending. With the exception of the index offence, none of Mr Pacey’s returns to custody has involved an offence of violence.

8. [22]

   At the time of the commission of that offence, Mr Pacey was on parole for the offence of AOABH, for which he had been sentenced to 16 months imprisonment with a non-parole period of 6 months. The sentence was to commence on 4 September 2006. He was released on parole on 3 March 2007 and was arrested for the index offence on 24 May 2007. He served the balance of his AOABH sentence, which expired on 9 March 2008.

9. [23]

   During the term of Mr Pacey’s current sentence, and preceding his release on parole on 21 October 2015, he had previously been released on two occasions. Within a week of being released for the first time on 11 December 2012, Mr Pacey was found to be in possession a prohibited drug. On 11 February 2013 he was charged with two counts of possession and two counts of common assault. He was sentenced to the rising of the court on the drug charges. Relevantly for present purposes, no evidence was offered in relation to the alleged assaults. His parole was revoked on 8 March 2013 but not with respect to an offence or allegation of violence.

10. [24]

    Mr Pacey was again released on parole on 30 August 2013. His parole was later revoked a second time for drug and alcohol breaches and failing to report. No offence or allegation of violence was involved.

11. [25]

    Since entering into the custody of Corrective Services, Mr Pacey has been charged with 40 institutional misconduct charges. Five of these have related to fighting in 2000, 2004, 2007, 2009 and 2013. Mr Pacey disputes the incident referable to 2013. Mr Pacey has also been charged with two institutional misconduct charges of intimidation in 2003 and 2007.

12. [26]

    Ms Chapman opined that Mr Pacey showed some signs of long term institutionalisation. He has only been out of custody for about 28 months in 17 years. Mr Pacey does not appear to have been recently cognitively assessed. Ms Chapman reported about that as follows:

13. [27]

    Ms Chapman’s recent findings are to be compared with a cognitive assessment undertaken by Mr Pacey in 2000. At that time he was found to be functioning in the low-average range of intelligence.

14. [28]

    Mr Pacey has a significant and lengthy history of drug and alcohol misuse from as young as 10 years of age. He was smoking heroin by the age of 17, injecting it by the age of 21 and he commenced using ice in 2004. Ms Chapman commented upon this area in her report as follows:

15. [29]

    Prior to the development of the Violent Offenders Therapeutic Program (VOTP), Corrective Services offered the Violence Prevention Program (VPP) at Malabar Special Programmes Centre for medium to high risk violent offenders. Mr Pacey was accepted into the VPP assessment phase on 16 October 2000 but was discharged on 8 December 2008 for allegedly fighting with another inmate.

16. [30]

    Mr Pacey was referred to the VOTP on 17 December 2009 and was offered a place and accepted. He was, however, ultimately unable to take it up.

17. [31]

    Despite not having participated in these high intensity programs for violent offenders, Mr Pacey has participated in some short term programs including Managing Emotions, Getting SMART (and SMART Recovery) and EQUIPS Programs. Additional programs in which Mr Pacey has participated include Alcoholics Anonymous, Narcotics Anonymous, Aboriginal drug and alcohol awareness, Aboriginal Relapse Prevention, Anger Management, OFFIT AOD programs and various other vocational and educational programs. Mr Pacey also sought individual contact with several psychologists while in custody for assistance following the deaths of family members.

18. [32]

    Ms Chapman indicated in her report that it was “not scientifically possible to accurately predict whether or not an individual offender will or will not actually reoffend.” She went on to observe that the

19. [33]

    Ms Chapman’s report contains a subheading “Risk Scenarios” under which she offered the following opinions:

20. [34]

    Under the heading “OVERALL RISK”, and presumably having regard to the preceding qualification, Ms Chapman went on to opine as follows:

21. [35]

    Ms Chapman commenced her Conclusions and Recommendations in these terms:

22. [36]

    It is not apparently in dispute that Mr Pacey would benefit from continued management in the community and would be amenable to appropriate supervision and direction.

23. [37]

    The safety of the community is the primary object of the Act. The factors otherwise listed in s 9(3) are centrally concerned with and directed to ensuring, as far as possible, that Mr Pacey will not be released from custody without appropriate and adequate supervision if he is a high risk violent offender and I am satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

Further evidence

1. [38]

   On the application of the State, the proceedings were urgently relisted before me on 23 December 2015. I was informed that Mr Pacey had been returned to custody on 19 December 2015 when his parole was revoked following what is described as non-compliance. On 20 December 2015 Mr Pacey was arrested and charged with assaulting a police officer in the execution of his duty and resisting arrest the previous day.

2. [39]

   The State has provided me with an affidavit sworn on 23 December 2015 by Jonathan Vasiliou. That affidavit was read without objection. The material to which Mr Vasiliou deposes has been drawn to my attention quite properly by the State on the basis that it represents information concerning Mr Pacey that is arguably germane to the present application. It is not suggested that any of the events that led to the revocation of Mr Pacey’s parole or his arrest constitute or amount to the alleged commission of a serious violence offence.

3. [40]

   Mr Pacey was granted conditional bail in the Local Court when the new matters came before Central Local Court on 21 December 2015. He is due to appear again at the Downing Centre on 8 February 2016 when the matters are listed for reply.

Consideration

1. [41]

   As I have already indicated, the only issue in dispute between the parties is whether or not Mr Pacey is a high risk violent offender. The State maintains that he is and that I would be satisfied of that fact. Mr Pacey contests any such conclusion or finding.

2. [42]

   The combined effect of the operative words of s 5E(1) and (2) require that Mr Pacey can be made the subject of a high risk violent offender extended supervision order if and only if I am satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

3. [43]

   It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable. For the purposes of the issue that has to be considered under the Act, the question is whether I can be satisfied that there is an unacceptable risk that Mr Pacey will commit a serious violence offence, not that he might commit some lesser act of violence not meeting or falling short of that definition. The test therefore narrows to an assessment of whether or not there is a high degree of probability that Mr Pacey poses an unacceptable risk of committing such an offence.

4. [44]

   The assessment that I am required to make on this application for orders pursuant to s 7(4) and s 10B of the Act is the equivalent of an inquiry into the existence of a prima facie case. It nevertheless follows that the difficult task that is to be undertaken necessarily involves a balancing exercise taking into account all of the positive and negative material in the supporting documentation, based upon the assumption that it can ultimately be proved. That assumption is not difficult to make in this case, and is only complicated by the need critically to analyse the competing inferences that emerge from the material when it has been. Certain matters in the supporting documentation provide an example of what I mean. For instance, Ms Chapman considered what she described as potential protective factors, about which she said the following:

5. [45]

   I note in this last respect that a recent announcement by the Federal Minister for Health indicated that anti-viral drugs reputed to cure the Hepatitis C virus will now be listed on the Pharmaceutical Benefits Scheme and presumably available to Mr Pacey from March 2016 for a very reasonable sum, whereas they had only previously been available at very high cost.

6. [46]

   Any consideration of the risk posed by Mr Pacey must accommodate these so called protective factors. However, it is not correct to describe them as “potential” protective factors, any more than it is correct to describe the index offence as a potential negative factor. All of the indices that are relevant to the equation by which the acceptability of the risk is calculated are potential factors because there is no necessary or direct link or connection between any one of them and the risk being assessed. Neither in terms of statistical probability nor historical certainty can any one factor be said to be always or completely reliable.

7. [47]

   Before I can make an order, I must be satisfied of the likelihood that Mr Pacey will reoffend to a high degree of probability. That is a standard that is higher than the civil standard of more probable than not or on the balance of probabilities. Because Mr Pacey’s unfettered and unrestricted liberty in the community is in issue, I can make an order if and only if I am satisfied to that degree of satisfaction that he is a high risk violent offender.

8. [48]

   Mr Pacey has only ever been convicted of committing one serious violence offence. The case for the State proceeds upon the basis that that index offence in combination with all of the other material referred to in Ms Wells’ affidavits produces a conclusion that Mr Pacey is a high risk violent offender. In my opinion, taken at its highest, that material indicates without question that Mr Pacey is by definition a serious violent offender, but I am not satisfied to a high degree of probability, or indeed anything like it, that he poses an unacceptable risk of committing another serious violence offence.

9. [49]

   Mr Pacey is nearly 37. He has not been convicted of any offence since the index offence. I accept immediately that a very significant reason for that has been his custodial status, but it is in my view nonetheless an important matter to note as an historical artefact. I have in this regard also taken note of the disciplinary incidents involving Mr Pacey within the prison system, but they are small in number, widely spaced and qualitatively of little significance. There is in my view no valuable predictive assistance to be drawn from fights in prisons between or among inmates that are not themselves productive of harm that would otherwise qualify the incidents as serious violence offences.

10. [50]

    Mr Pacey has also been co-operative with Ms Chapman and has shown what appears to be a genuine desire to reform. He has demonstrated insight into his drug and alcohol difficulties, which are said by Ms Chapman to have had a close connection both with his previous offending and with the likelihood of reoffending. That insight is a positive or protective factor to be taken into account in Mr Pacey’s favour.

11. [51]

    Ms Chapman’s opinions set out at paragraph 90 of her report are also particularly instructive and need to be properly understood. Ms Chapman considers that Mr Pacey’s risk of offending is in the high risk category, although she elsewhere indicated that he was in the lower end of that category. However, she also expresses the opinion that it is unclear whether any future violence would meet the threshold of a serious violence offence, which is the very type of offence with which s 5E(2) is relevantly concerned. It is clear from the terms of the Act that violence not amounting to a serious violence offence can be ignored. In describing the fact that Mr Pacey’s “past violent history indicates the capacity to engage in serious violence”, Ms Chapman can only be referring to the index offence, as there is no other incident of serious violence as defined with which he has been concerned. I consider the fact that Mr Pacey has not committed any serious violence offence or offences apart from the index offence to be very significant.

12. [52]

    However, whatever current views might be generated by or about that single incident, now more than 8 years and 7 months ago, Ms Chapman immediately notes that Mr Pacey’s recent behaviour over the past several years suggests that he has developed some skills in managing his behaviour without engaging in violence “at the serious end of the spectrum.” Violence that is not at the serious end of the spectrum neither amounts to a serious violence offence nor presumably provides reliable predictive assistance with respect to future violent conduct. Ms Chapman’s comment is also implicitly supportive of my view, expressed earlier, that Mr Pacey’s isolation from the community is not a negative or neutralising factor in the context of his abstinence from violence and corresponding lack of convictions. Indeed, on one view, Mr Pacey’s incarceration would have exposed him regularly to situations that would have been conducive to the commission of serious acts of violence, yet his institutional conduct suggests that no such incidents occurred. He convincingly explained his fighting in gaol to Ms Chapman by telling her that his conduct was necessary to project an image of fearlessness to avoid being targeted, saying, “you can’t back down or everyone thinks you’re weak.”

13. [53]

    It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.

14. [54]

    Mr Pacey is at some risk of reoffending. That does not set him apart from a very large number of those with whom he has been incarcerated. The material that I have considered does not, however, satisfy me that there is an identifiable risk of sufficient probability to indicate that he is a high risk violent offender. As I have indicated already, Mr Pacey does not in my opinion qualify as a high risk violent offender because I am not satisfied that he poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. Adopting the formulation suggested in Manners at [8], I am not satisfied that there is a prima facie case for the making of an order under s 7(4) or s 10B of the Act.

15. [55]

    I should indicate finally, and for the avoidance of doubt, that in considering the meaning of the words “unacceptable risk”, I consider that they should be given their ordinary meaning. I have in that respect preferred the analysis of R A Hulme J in State of New South Wales v Thomas (Final) 2011 NSWSC 307 over any alternative approach that suggests the need to conduct a balancing exercise of some kind.

Conclusions and orders

1. [56]

   I am not satisfied that the wealth of material in the supporting documentation would, if proved, justify the making of an extended supervision order. It follows that I am not required to make an order pursuant to s 7(4) or s 10B of the Act.

2. [57]

   Accordingly, the summons should be dismissed with costs.