State of NSW v Weribone

By an amended summons filed in court on 12 October 2016 the plaintiff seeks the following:

The defendant does not accept that he is a high risk violent offender. In the event that I find that he is, he raises no opposition to the making of an Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). However, he takes issue with:

The following affidavits were read without objection in the plaintiff’s case:

In addition, some short oral evidence was given by Mr Devoy at the hearing.

The proceedings were commenced on 7 July 2016. At that time the defendant was serving the following sentences of imprisonment:

The defendant was released from custody on 3 August 2016. As a consequence, he was simultaneously subject to both a parole order and an Interim Supervision Order (“ISO”), the latter order having been made by Wilson J on 29 July 2016: State of NSW v Weribone [2016] NSWSC 1046. The ISO has since been extended.

The written submissions of counsel for the plaintiff helpfully set out the relevant provisions of the Act, which may be summarised as follows.

Proceedings for an ESO in respect of a high risk violent offender may only be brought in the circumstances set out in ss. 5J and 13C. Those circumstances relevantly require that the offender:

Pursuant to s. 6(2), an application for an ESO may only be made in the final six months of an offender’s current custody or supervision. Current custody or supervision for those purposes is that which is referred to in s. 5J(2). The application for an ESO must be supported by the documentation specified in s. 6(3).

Section 15 makes provision for pre-trial procedures. In the present case, Wilson J previously made orders (inter alia) appointing experts, pursuant to s. 15(4) of the Act. I have referred in some detail below to the reports of those experts.

Under s. 5E(1) of the Act, an ESO may only be made if the offender is a “high risk violent offender”. Under s. 5E(2), a “high risk violent offender” is a violent offender in respect of whom the court is “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a ‘serious violence offence’ if the offender is not kept under supervision”.

In determining whether to make an ESO, I am required to engage in a two-step process. The first step is to determine whether the defendant is a high risk violent offender. If I determine that he is, the second step is to determine whether an ESO should be made: Anderson v State of NSW [2016] NSWCA 86 at [14]-[15]. Under s. 9(3) of the Act, I must, in addressing that second question, have regard to:

An allegation that has not resulted in a finding of guilt or a conviction is not relevant to an offender’s criminal history pursuant to s. 9(3)(h), although it may be taken into account under s. 9(3)(a) and 9(3)(i): State of NSW v Conway [2011] NSWSC 976; State of NSW v Veeran [2015] NSWSC 75.

There is no issue in the present case that:

In making the ISO, Wilson J set out the following relevant aspects of the defendant’s background (commencing at [8]) which I gratefully adopt:

Section 5E of the Act is in the following terms:

A “serious violence offence” is defined in s. 5A of the Act as follows:

Senior counsel for the defendant took issue with the proposition that the defendant was a high risk violent offender. Whilst he accepted that the defendant was “at some risk” of re-offending, he submitted that there was insufficient evidence to be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious violence offence. In these circumstances, he submitted that there was no basis upon which the court could make the order sought, and submitted that the proceedings should be dismissed.

Counsel for the plaintiff pointed, in particular, to the defendant’s criminal history. In doing so, he emphasised the defendant’s convictions for violent offending, as well as for offences of dishonesty such as theft and break enter and steal. He submitted that in light of the defendant’s criminal history, I would be satisfied to the high degree of probability required by s. 5E(2) of the Act.

The defendant’s criminal history was summarised by Wilson J in her judgment commencing at [10] (set out in [15] above).

The nature and frequency of the defendant’s prior offending, particularly in so far as that offending involves matters of violence, satisfies me, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. I am fortified in that view by the opinion of Mr Sheehan psychologist, and Dr O’Dea psychiatrist. In his report of 21 August 2016 (at para. 94) Mr Sheehan said:

In his report of 5 September 2016, Dr O’Dea said (commencing at para. 74):

As I have already indicated, it was the position of the defendant that in the event that I found that he was a high risk violent offender, he raised no opposition to the making of an ESO, subject to being heard on the question of the duration of, and the conditions attaching to, such order. However notwithstanding that position, it remains necessary for me to have regard to the matters in s. 9(3) of the Act in considering whether an ESO should be made.

The defendant is 23 years of age. He has, on any view of it, a significant number of convictions for offences of violence. The evidence establishes that in the majority of instances of such offending, the victim has been a total stranger to him. In some cases, the victim had sought to challenge the behaviour of the defendant, and/or those persons in whose company he was in at the time.

In all of these circumstances, the safety of the community is an important consideration. In light of his history of offending, the defendant obviously poses an ongoing risk to the community. Having regard, in particular, to the expert reports which are before me, that risk would, without supervision, escalate into one which was plainly unacceptable. It follows that the need to protect the safety of the community weighs in favour of making the ESO sought.

Mr Sheehan interviewed the defendant on 5 August 2016. His report contained the following executive summary:

Mr Sheehan reported (commencing at para. 7) that the defendant was raised by his mother and step-father, and has five siblings. His biological father left the family unit, although this occurred prior to the defendant being able to form any memory of it. Both his parents and his step-father are Indigenous. His family life was “chaotic”, characterised by unemployment, cannabis use and heavy drinking, leading to brutal interpersonal violence and police involvement. The defendant reported that he was often beaten himself, mostly as a form of punishment, but sometimes randomly. He described being terrified and panicked by such violence, but said that over time, he came to accept it as normal. He was diagnosed with Attention Deficit Hyperactivity Disorder and Conduct Disorder at a young age. He would regularly absent himself from home and stay with a relative. There was a general absence of disciplinary boundaries, or order generally, in his home life.

Mr Sheehan reported that the defendant described the area in western Sydney where he grew up as “rough”, and described the environment in Broken Hill where his spent some time as a youth as “deeply dysfunctional”, and characterised by daily use of drugs, alcohol and solvents, excessive daily violence and a general atmosphere of lawlessness and hopelessness. In paragraph 16 of his report Mr Sheehan stated:

Mr Sheehan arrived at the following diagnoses (commencing at para. 35):

Mr Sheehan also reported that on a screening assessment for personality functioning and psychological adjustment, the defendant’s profile revealed a constellation of features which were consistent with diagnoses of antisocial personality and substance abuse.

In terms of his assessment of the defendant’s overall risk, Mr Sheehan said (at 78):

Mr Sheehan expressed the view that the majority of the conditions sought by the plaintiff were necessary to address the defendant’s risk of a serious violence offence. He went on to say (at para. 80):

Mr Sheehan’s conclusions and recommendations were expressed in the following terms (commencing at para 93 of his report):

Dr O’Dea interviewed the defendant on 8 August 2016 and provided a report of 5 September 2016 following that consultation. In general terms the history he obtained from the defendant was consistent with that which had been obtained by Mr Sheehan. Dr O’Dea’s opinion was as follows (commencing at para. 63):

Generally speaking, the opinions of Mr Sheehan and Dr O’Dea expressly support the making of an ESO, as well as the conditions which are sought by the plaintiff. To the extent that there are issues raised concerning those conditions, they are limited and I have discussed them further below.

On 16 March 2016 Richard Parker, a senior psychologist at the Serious Offender’s Assessment Unit, prepared a Risk Assessment Report in respect of the defendant. For the purposes of that report, Mr Parker interviewed the defendant for approximately 1 hour on 16 February 2016. The executive summary of that report is in the following terms:

The risk assessment which was carried out by Mr Parker:

Mr Parker concluded (commencing at para. 47):

The opinion of Mr Parker, particularly insofar as it refers to the likelihood of the defendant resuming his previous lifestyle, supports the making of an ESO.

The level of service inventory (revised) (“LSI-R”) is a tool used for the purposes of risk assessment of general offending. In his affidavit of 15 July 2016 (at para. 10) Mr Parker identified that the LSI-R is also regarded as a predictor of violent offending.

An assessment was undertaken of the defendant on 20 October 2014, at which time he was assessed as being a medium-high risk. In his Risk Assessment Report (at para. 30) Mr Parker noted that according to data, 67% of offenders who were assessed at that level re-offended, and were returned to custody within two years.

A further assessment using the LSI-R was administered on 4 April 2016. This assessment yielded a score which placed the defendant at an even higher risk level.

The violence risk scale (“VRS”), which uses both static and dynamic factors to assess the risk of violence for particular persons, was also part of Mr Parker’s assessment of the defendant. The defendant was found to be within the high risk range.

The violence risk appraisal guide-revisited (“VRAG-R”) was also utilised by Mr Parker in his assessment. The defendant’s score classified him as a high risk compared to other serious violent offenders. Mr Parker noted that 76% of violent offenders with a similar score reoffended violently within 5 years, and 87% within 12 years (at para. 32).

The results of Mr Parker’s assessment support the making of an ESO.

A Risk Management Report in respect of the Defendant was prepared by Joyleen Nowrot, a Community Corrections Officer, on 13 April 2016. That report set out (inter alia) management strategies which, in the event that the defendant was released into the community, were proposed to be implemented. Those strategies included:

In light of the defendant’s criminal history, and in light of the expert reports which are before the court, the strategies identified by Ms Nowrot would seem entirely appropriate. They generally support the conditions sought by the plaintiff.

Two particular rehabilitation programs are identified in the material before the court. The first is the violent offender therapeutic program (“VOTP”).

The defendant was referred to the VOTP in 2014 but initially declined treatment. He consented to participate on 24 March 2015 but having attended the first group session on 15 April, he failed to attend three subsequent sessions, without reason. Because of a disciplinary breach which occurred whilst he was in custody in May 2015, the defendant was removed from minimum to maximum security, as a consequence of which he was unable to attend any VOTP session until 1 July 2015, following his return to minimum security. He was ultimately discharged from the VOTP following an allegation of assault against another inmate which saw him moved into segregated custody and reclassified.

To the extent that the defendant has participated in the VOTP, his behaviour has apparently been regarded as appropriate. A report prepared at the time of his discharge from the program recorded that whilst he showed some insight into relevant factors, he was not able to translate this into an understanding of his behaviour.

In December 2015 the defendant accepted a further offer for inclusion in the VOTP. However having done so, he withdrew on the basis that he had Court commitments. Subsequent investigations revealed that he had no such commitments, the defendant later stating that he felt “pressured” into undertaking the VOTP.

The defendant was again accepted into the VOTP in April 2016 and commenced it on 27 June 2016. He was discharged from the program due to his release on 3 August 2016 and although he did not complete the entirety of the various modules, there is evidence that he was actively engaged in the program.

The second identified rehabilitation program is the EQUIPS aggression program. The defendant commenced participation in that program in February 2016, at which time his participation was noted to be generally positive. However in April 2016 he was removed from the program due to a failure to meet the requirements for participation. Mr Parker and Ms Matsuo are both of the view that the program may not be sufficient to address the defendant’s needs and problems. However, the defendant is eligible to complete it in the community if he is made the subject of an ESO.

Following his release, the defendant was referred to the Langton Clinic for assessment although he is yet to attend.

As an adult, the defendant has been released to parole on numerous occasions. The written submissions of the plaintiff helpfully set out what occurred on each of those occasions.

The defendant was released on 4 January 2011 at the expiry of the non-parole period imposed for the offence of aggravated break and enter with intent to commit a serious indictable offence. He was required to reside at a hostel in Leichhardt. He spent only one night there before moving back to the western suburbs, reportedly staying with a cousin. Although efforts were made to arrange alternative accommodation, the defendant failed to attend a relevant appointment and subsequently failed to make contact with his supervising officer.

The defendant was arrested on 5 March 2011 and charged with further offences as well as a breach of his parole. It later transpired that his parole had not been properly granted.

The defendant was again released on 7 July 2011, with his parole due to expire on 4 October 2012. On 14 July 2011, shortly after his release, he entered into a residential rehabilitation program. On 27 July 2011 he was granted permission to travel from Moree to Sydney to attend a family funeral and was directed to return to the rehabilitation centre by 31 July 2011. He failed to do so. On 21 August he was charged with offences committed on the previous day, including recklessly inflicting grievous bodily harm in company. He was also charged with an offence of break and enter which was committed on 16 August 2011.

On 9 September 2011 his parole was revoked.

The defendant was released on 23 September 2013 in respect of the sentence which had been imposed for the offence of recklessly inflicting grievous bodily harm in company. His parole period was to expire on 20 March 2015. He was scheduled to commence drug and alcohol counselling and to attend an Aboriginal men’s group, but did neither. He also failed to attend scheduled supervision.

His parole was revoked on 15 November 2013.

The defendant was again released on 5 March 2014. On 3 April he was arrested and charged with a number of offences which had occurred on that day. He was later charged with offences which had occurred on 29 and 30 March. His parole was revoked on 24 April 2014.

The defendant was released on the ISO order on 3 August 2016. That order remains in force. He had been approved to attend a film with his cousin on 3 September and was scheduled to return by 9.00pm that evening. During that evening he breached three separate conditions of the ISO:

The defendant was arrested on 4 September 2016 and charged with three offences of breaching his supervision order. Following an appearance at the Waverley Local Court on 5 September 2016 where he entered pleas of guilty to all three charges. He was not sentenced to a period of immediate custody.

The defendant’s history of breaching the terms of his parole, and breaching the terms of the ISO, are obviously matters of concern. Generally speaking, those factors support the making of an ESO.

The defendant’s criminal history has been previously outlined. It speaks for itself.

Before the court are a number of psychological assessments which have been prepared in respect of the defendant. Those reports refer to the defendant’s history being suggestive of the presence of a serious conduct disorder. While there is some evidence of the defendant having engaged in therapy, the evidence tends to support the conclusion that ongoing therapy is required.

Counsel for the plaintiff submitted that the appropriate duration of any ESO was 5 years. In support of that submission, he relied upon the opinions of Mr Sheehan and Dr O’Dea, and pointed out that neither had been cross-examined on any aspect of their respective reports. Counsel submitted that on any view of the evidence, the defendant needed a “very lengthy period” in which to effect overall change. In advancing that submission, counsel accepted that a period of 3 years could conceivably be regarded in this context, as a “very long period”.

Senior counsel for the defendant submitted that there were a number of positive signs in terms of the defendant’s rehabilitation which supported the imposition of an order for a shorter period. He pointed out, in particular, that the defendant was now employed. He submitted that a period of 3 years was appropriate, and emphasised the fact that in the event that the defendant’s progress was ultimately not as positive as presently anticipated, it was open to the plaintiff to make an application to vary the length of the term pursuant to s. 13 of the Act. Finally, counsel submitted that in light of the defendant’s relative youth, a period of 3 years would provide an incentive for him to actively pursue his rehabilitation and associated treatment.

In State of New South Wales v Thorne [2016] NSWSC 233 Hidden J referred to various authorities which addressed the issue of the length of an ESO. Although both Mr Sheehan and Dr O’Dea support the imposition of an order for a period of 5 years, the determination of the duration of any order remains a legal (as opposed to a clinical) one: State of NSW v Conway [2011] NSWSC 925 at [28]. On any view, 3 years is not a short period. The defendant will be monitored in the community and will be subject to a number of other stringent conditions. Moreover, it remains open to the plaintiff to apply to amend the order so as to lengthen it.

In all of these circumstances I am satisfied that the appropriate duration of any ESO is 3 years.

Some of the initial objections raised by senior counsel for the defendant to the conditions sought by the plaintiff were resolved by agreement. However, the following remained in issue.

The conditions sought by the plaintiff in respect of these matters are in the following terms:

Counsel for the plaintiff submitted that compliance with a condition requiring electronic monitoring was not onerous. He also submitted that the conditions governing both electronic monitoring and the provision of a schedule of movements were not fixed, and were subject to ongoing review. If appropriate, they can be relaxed over time. He submitted that the requirement for the submission of a schedule of movements is generally removed prior to electronic monitoring in any event.

Senior counsel for the defendant submitted that the requirement that the defendant be subject to electronic monitoring would pose a difficulty with the defendant’s employment. In the event that the court was minded to continue electronic monitoring, senior counsel submitted that it should be for a time period consistent with proposed condition 6, namely a period of 18 months. In advancing these submissions, senior counsel acknowledged that all of these conditions had some utility in terms of the defendant’s supervision and monitoring.

In my view, in light of the defendant’s history, particularly insofar as that history evidences breaches of parole and other conditions, the requirements that he be subject to electronic monitoring and provide a schedule of movements are warranted in the circumstances.

Condition 25 is in the following terms:

Senior counsel for the defendant submitted that this condition should be amended so as to exclude cafes, coffee shops and cinemas, on the basis that such amendment was necessary to avoid an inadvertent breach of the condition. He pointed out that there were establishments other than bars or hotels which were able to serve alcohol, in circumstances where they did not advertise the fact that they did so. Senior counsel also submitted that there were a series of other conditions directed towards a prohibition upon the defendant drinking, and allowing (inter alia) for the defendant to be breath tested. Those conditions, he submitted, appropriately dealt with this issue.

There is no doubt that there are, as senior counsel for the defendant pointed out, establishments which do sell alcohol without advertising that fact. Such establishments extend to those which have been nominated. That said, at least some aspects of the defendant’s history of offending are alcohol related. It will be incumbent upon the defendant to be vigilant in ensuring that he does not enter any licensed premises without the approval of his DSO. In these circumstances I am of the view that condition 25 should remain in its present form.

In its original form, condition 29 was in the following terms:

In the course of argument I pointed out that the term “starts a relationship” seemed to be inherently vague. Senior counsel for the defendant also pointed to the fact that the final part of the condition did not impose any obligation upon the defendant, but rather gave permission to the DSO to take certain action. After being given an opportunity to consider these matters, counsel for the plaintiff proffered a condition in the following terms:

No substantive objection was raised by counsel for the defendant to a condition in these terms.

For the foregoing reasons I make the following orders: