State of NSW v Holschier (No 2)

HIS HONOUR: By Summons filed 28 November 2018 the State of New South Wales (the State) seeks an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the HRO Act) for the supervision of the defendant for a period of 12 months from the date of the order.

The plaintiff also seeks an order restricting access to the file to the parties unless an order is made by the Court.

The matter which came before the Court was the preliminary hearing of the State’s application for an interim supervision order (ISO). This is part of the process leading to an application by the State for an ESO.

The State advised the Court that should an ISO be granted, the conditions proposed were not those referred to in paragraph (2) of the Summons. Instead the State had prepared a separate set of conditions which were directly applicable to the defendant’s situation and the circumstances of his case. Those conditions were admitted without objection and became Exhibit A.

In support of the ISO the State relied upon the following evidence which was not objected to:

The defendant is currently subject to an ESO which was made for three years on 8 December 2014 (State of NSW v Holschier [2016] NSWSC 234 (Holschier 1). Following convictions for subsequent offences referred to below, the defendant’s ESO was suspended. It recommenced when he was released from custody and is calculated to expire on 13 January 2019.

The defendant’s factual background before the date of the ESO is set out in Holschier 1 at [8]-[11]. Accordingly, this judgment should be read with Holschier 1.

The defendant’s criminal history commenced when he was 14 years old with offences involving dishonesty, firearms and violence (Holschier 1 at [8]). The index offence was the murder of his partner, for which he was convicted in 1991, and sentenced to life imprisonment. He was convicted at the same time of inflicting grievous bodily harm upon their 13 month old daughter. (Both of these sentences have expired.) On 14 December 1998, the defendant’s life sentence was re-determined as a sentence of 25 years with a 17 year non-parole period.

As set out in Holschier 1 at [12]-[18], the defendant had a poor history of compliance with parole, including convictions for assault and intimidation of his wife.

The defendant also has a poor history of compliance with the conditions of his ESO, including:

Despite these lapses, the offences for which he was convicted in 1991 remain the only serious offences, as defined in the HRO Act in the defendant’s criminal history.

On 3 April 2018, two forensic psychologists in the Serious Offenders Assessment Unit prepared an ESO Completion Risk Assessment Report (the Completion RAR), recommending no further application be made because the improvements in the defendant’s presentation suggested that a further application would be unsuccessful.

On 6 April 2018, Community Corrections prepared an ESO Completion Report (Community Corrections Completion Report) also recommending against making a further application.

These reports were prepared before the defendant’s most recent offence of failing to comply with the ESO by refusing to provide a drug sample, an offence committed on 28 April 2018.

The State has obtained a Supplementary Risk Assessment Report (Supplementary RAR) dated 30 November 2018.

The Act is designed to address the “almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release” (State of NSW v Donovan [2015] NSWSC 1254 at [3]).

The primary object of the Act is “to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community” (s 3(1)). Another object of the Act is “to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation” (s 3(2)). It follows that ESOs are protective, not punitive (Attorney-General for NSW v Tillman [2007] NSWCA 119 at [5]). This protective purpose is “fundamental” (Attorney-General for NSW v Gallagher [2006] NSWSC 340 at [21]).

Section 5B of the HRO Act provides that the Court can make an ESO in respect of an offender only if:

As can be seen from the above, the defendant satisfies the first three requirements. He has served a sentence of imprisonment for a serious offence as defined, being murder. He is a supervised offender within the meaning of s 5I. The application has been made in accordance with s 5I.

An important question for the Court will be whether the Court is satisfied “to a high degree of probability” that the defendant poses an unacceptable risk of committing a serious offence unless an ESO is made.

The expression “high degree of probability” indicates something beyond “more probably than not”. The existence of the risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard (Cornwall v Attorney General [2007] NSWCA 374 at [21]).

While the Court must be satisfied to a high degree of probability that there is an unacceptable risk, that does not require the Court to conclude that the defendant is more likely than not to commit a serious sex offence (s 5D).

As to the meaning of the phrase “an unacceptable risk”, the case law establishes the following:

The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].

The Court’s role at a preliminary hearing is similar to that governing the Court’s power to make interim orders: Attorney General v Hayter [2007] NSWSC 983 at [6]. The test as to whether the supporting documentation “if proved” would justify the ESO is similar to the requirement for a prima facie case to be made out in committal proceedings (NSW v Thomas [2011] NSWSC 118 at [11]. The Court does not weigh the documentation or predict the ultimate result. The test has been held not to be a stringent one, but is rather akin to the “prima facie case” test (State of NSW v Baldwin [2016] NSWSC 1141 at [7]).

The Court must have regard to the matters set out in s 9(3) of the Act in performing its task at the preliminary hearing (Attorney General v Tillman [2007] NSWSC 605. In dealing with interim orders, the Court should give weight to the avoidance of risk (Attorney General v Winters [2007] NSWSC 611 at [7]).

The unacceptable risk needs to be established to a high degree of probability and it must be an unacceptable risk of committing another serious offence. The State accepts that a likelihood of committing some further offence is not enough. There must be an unacceptable risk of the defendant committing a serious offence as defined.

On this issue, it has to be acknowledged that the defendant has not been convicted of a serious offence since 1991. The Completion RAR and the Community Corrections Completion Report are also significant matters in the defendant’s favour.

Despite this positive support, the events of 29 April 2018 and the records since that time, do raise some doubts on this conclusion in the two Completion Reports. A subsequent test “confirmed a faint positive detection of methamphetamines/amphetamines”. That having been said, the defendant’s explanation is a reasonable one, i.e. that he was taking a cold medication that may well have had pseudoephedrine in it. In any event, the failure to have a supplementary test constituted a breach of the ESO for which the defendant was convicted.

Subsequent reports continued to be largely supportive of the defendant. Of particular note is the restraint and maturity with which he received information that the State was going to apply for an ESO when earlier he had understood that such was not the case. There was oral evidence before the Court (Fiona Mason the team leader of the violent offenders therapeutic program) as to the significant improvements in all aspects of control and compliance with medication which had been achieved over the last few years, as a result of the ESO supervision.

There was a supplementary RAR which despite what had occurred on 29 April 2018 expressed the opinion that “there was insufficient evidence that the opinions expressed by a previous report about Mr Holschier’s progress with regard to drug abstinence are no longer valid and I stand by them”.

In all of the reports prepared in 2018 relating to the defendant, there is a common theme identifying a risk of domestic violence should the defendant enter into another personal relationship. That has not happened thus far but it remains as a concern to those who have reported on him.

It should be noted that both the Completion RAR and the Community Corrections Report recommended against a further ESO, even though the authors were aware that there had been lapses in the past and that the defendant did not have a good record of compliance. Nevertheless, those reports identify a number of important considerations in the defendant’s favour, including addressing mental health issues and developing a support network of family and friends. Importantly, the defendant no longer remains in the volatile relationship which led to the 2016 domestic abuse offending. The reports make clear that his present condition and state of health represent a significant improvement on the circumstances when the ESO was made in 2014.

The effect of the reports can be summarised as follows:

In this preliminary hearing, when exercising its discretion whether to grant an interim supervision order, the Court must still have regard to the matters set out in s 9(2) and (3) of the HRO Act.

As earlier indicated, the primary object of the Act and the paramount consideration is the safety of the community. In the present case, the index offence was a very serious one. While the defendant has been relatively stable for some time, the paramountcy of the safety of the community dictates a cautionary approach. Drugs, which were one of his major risk factors, are still a potential problem. The harm to the community that may result if the defendant were to destabilise could be severe. All these considerations operate in favour of making an ISO so as to enable comprehensive medical evidence to be collected to better assess whether or not an ESO should be granted.

An examination of the criteria in s 9(3) produces the following:

The mandatory considerations are set out above. Many of them operate in the defendant’s favour but some do not. If anything, the balance favours the defendant.

As earlier indicated, the test for the making of an ISO is not as stringent as that for an ESO in that the Court does not assess the documentation or predict the ultimate results. The Court only has to be satisfied on a prima facie basis as to the matters favouring the granting of an ESO. It should also be noted that further reports will be provided by independent psychiatrists/psychologists which are not presently available to the Court

Taking those matters into account, I concluded that an ISO should be made. In doing so, I have altered the terms of Order 1 so that the matter is returnable to the Court on 8 February 2019. I have also altered the conditions with which the defendant has to comply from those described in Order 2 in the Summons to those contained in Exhibit A.

Accordingly, the orders which I make are: