State of New South Wales v Costigan (Final)

By summons filed on 23 July 2021, the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) against Brian Costigan (the defendant) for a period of three years under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

All references in these reasons to legislative provisions are, unless otherwise stated, references to the Act.

The primary object of the Act is to ensure the safety and protection of the community: s 3(1). This is a paramount consideration in determining whether to make an ESO: s 9(2). A secondary object is to encourage high risk offenders to undertake rehabilitation: s 3(2).

The threshold requirements for making an ESO are set out in s 5B. It was common ground that the defendant was an “offender” and a “supervised offender” for the purposes of the Act as he was, at the time the summons was filed, serving a sentence of full-time imprisonment following his conviction for a “serious violent offence” (ss 4A, s 5A and 5I), being recklessly inflict grievous bodily harm in company: s 35(1) of the Crimes Act 1900 (NSW). The summons was filed within nine months of the expiration of his current custody or supervision as the summons was filed on 23 July 2021 and the defendant’s sentence expired on 29 October 2021.

The threshold question is whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if an ESO is not made: s 5B(d). Section 4 defines “serious offence” as, relevantly, “a serious violence offence – see s 5A”. Section 5A defines “serious violence offence” as a serious indictable offence that is constituted by a person “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.”

If I am so satisfied, the question arises whether an ESO ought be made. The matters to be taken into account include the matters referred to in s 9(3) which will be addressed below.

The plaintiff adduced substantial documentary evidence, which comprised documents relating to the defendant’s criminal and custodial history, as well as risk assessment reports. The risk assessment reports included reports of Samuel Ardasinski, a senior psychologist at the Serious Offenders Assessment Unit and Terry O’Brien, Senior Community Corrections Officer from the Extended Supervision Order Team. The evidence also included reports of the two experts, whose reports were ordered by Dhanji J following the preliminary hearing on 28 October 2021: Dr Melissa Hughes, a clinical neuropsychologist and forensic psychologist; and Dr Jeremy O’Dea, consultant forensic psychiatrist. The evidence has been the subject of detailed consideration in the parties’ written submissions. Only Dr Hughes was required for cross-examination. No evidence was adduced on behalf of the defendant. I confirm that I have considered the whole of the evidence although it is not necessary to summarise all of it in these reasons, having regard to the ambit of the issues for determination.

The defendant has a significant history of violent offending although only the index offence meets the definition of serious violence offence (see the summary below). He also has an entrenched history of substance abuse which underlies his offending conduct. The defendant has a pattern of offending while under the influence of illicit substances or in order to obtain illicit substances. The sentences imposed for his offences have required him to spend time in custody (see below). While in prison he has had resort to illicit drugs and has been involved in violent altercations with other inmates. Upon release, he has resorted to illicit drugs which has continued the cycle of offending. Although the defendant has a supportive family, his history demonstrates his inability to rehabilitate himself notwithstanding such support. He expresses himself violently by assaulting other inmates in gaol and by assaulting others, including intimate partners, when at liberty in the community. The triggers for such violence may be trivial and may arise from paranoid tendencies.

The defendant’s violent behaviour began when he was a child. His parents separated when he was three years old. At an early age he had difficulty managing angry impulses and frequently became violent when he did not get his own way or objected to what was happening around him. This propensity towards violence has resulted in convictions for criminal offences.

It is not necessary to detail the defendant’s entire criminal history. It is sufficient to summarise the defendant’s adult criminal history of violence in the table below, which does not include pending charges (which are referred to later in these reasons).

Due to other offending, the table above does not accurately indicate the periods spent by the defendant in custody. His custodial records show that he was taken into custody on 8 November 2012 and was released to parole on 25 July 2013. He was returned to custody on 30 December 2013. He was released to parole on 26 February 2014 but was returned to custody on 31 October 2014 following his arrest for the offences on 21 October 2014 (which includes the index offence).

Although the defendant became eligible for parole on 29 April 2019, he was not released to parole until 7 April 2020. He returned to live at his mother’s house at Tenamit. It was a condition of his parole that he not use prohibited drugs. However, according to Police Facts, he moved into a hotel in Maitland some time prior to 29 June 2020 where he stayed with his then girlfriend whom he assaulted while under the influence of prohibited drugs. He was arrested on 29 June 2020 and returned to custody. On 12 August 2020, he was sentenced to a period of one year’s imprisonment with a non-parole period of 4 months. On 29 July 2020, the State Parole Authority revoked the defendant’s parole for the index offence and he was ordered to serve the remaining one year, four months and one day of his sentence in custody. He was eventually released to parole on 29 June 2021. Upon his release, he initially lived with his mother at Tenamit.

On 23 July 2021, the plaintiff commenced these proceedings by filing the summons. On 17 August 2021, the defendant reported to his Departmental Supervising Officer (DSO), a Community Corrections Officer (CCO) who was responsible for monitoring him, that, on 12 August 2021, he had relapsed by smoking ice and cannabis, having found it difficult to abstain. The defendant told the DSO that he had cravings when he had withdrawal symptoms. The Offender Integrated Management System (OIMS) case notes for 17 August 2021 recorded:

The DSO contacted the defendant’s National Disability Insurance Scheme (NDIS) caseworker and also a caseworker at Housing Plus in Initial Transition Service to see if alcohol and drug rehabilitation and mental health treatment could be arranged. The OIMS notes recorded, on 20 August 2021, the possibility of a residential rehabilitation program “to address his illicit drug use in a stable/therapeutic environment.” The OIMS notes also recorded, on 24 August 2021, that the DSO had difficulty in identifying a general practitioner who could help the defendant as the practice approached by the DSO was not accepting new patients due to COVID-19 restrictions. Towards the end of August 2021 and the beginning of September 2021, the DSO could not communicate with the defendant as his phone went straight to message and no one answered the door at his mother’s address.

On 6 September 2021, the defendant contacted his DSO and told her that he had gone to Wallsend to support a friend (who may have been LW, an intimate partner, or someone associated with her), whose father had died. The defendant told his DSO that all of his things had been stolen, including his mobile phone. He was advised that he was required to attend Community Corrections the following day as his DSO had arranged for a review of the plan which the NDIS had approved in January 2021 in respect of the defendant.

On 7 September 2021, the DSO learned that it had been alleged that the defendant had assaulted LW and her ex-partner, G. The DSO decided to implement a curfew restriction, imposing a curfew from 6pm until 6am and also a restriction that prohibited the defendant from entering the Newcastle Local Government Area. LW alleged that the defendant had pushed her down the stairs and made her take ice. At a supervision meeting with his DSO on 7 September 2021, the defendant was given a formal warning that he must not use prohibited drugs and that he must report in accordance with the conditions of his interim supervision order (ISO). The DSO also discussed a NDIS plan with the defendant. It appears that there was a subsequent discussion between the defendant and his NDIS caseworker about a plan.

According to the Police Facts Sheet, at about 4pm on Saturday 18 September 2021, the defendant and LW were in the backseat of a vehicle when the defendant turned and punched LW on the left side of her forehead, causing a minor laceration and bruising. This led to the defendant being charged with assault occasioning actual bodily harm.

According to the Police Facts Sheet, on Sunday 19 September 2021, at about 10.30am, the defendant and LW were at LW’s home in Telarah when the defendant asked LW where his cigarettes were. When LW told him that she did not know, he threatened to break her jaw. LW ran down the street to another house and managed to get to the front verandah. The defendant punched her three or four times on the back of her head and spun her around and punched her on the left side of her jaw. The owner of the house came to the front door and let LW in. The defendant told LW that if she called the police, he would burn her house down. LW suffered a bump and soreness to the back of her head and a 3cm laceration to her chin, which caused her to bleed.

The defendant was returned to custody on 19 September 2021, having been charged with two offences of assault occasioning actual bodily harm and stalk/intimidate LW (the September 2021 charges). The police successfully applied for an Apprehended Domestic Violence Order (ADVO) to prohibit the defendant from contacting or communicating with LW.

At the time of the conduct which was the subject of the September 2021 charges, the defendant was not on any opioid replacement, having refused it. LW was herself subject to a 16-month Intensive Corrections Order (ICO) which was due to expire on 17 November 2021.

In a report dated 21 September 2021, the DSO recommended that parole be revoked. The reasons for the recommendation were as follows:

The DSO’s unit leader included this addendum at the end of the report:

The DSO also said in the report:

The September 2021 charges led to the revocation of the defendant’s parole with respect to the index offence, as a result of which he was required to serve the balance of his sentence for the index offence, which was due to expire on 29 October 2021. The order revoking the parole order was made on 6 October 2021, but the parole order was treated as having been revoked on 18 September 2021.

On 28 October 2021, Dhanji J made an ISO in respect of the defendant. The ISO was made substantially in accordance with the conditions sought by the plaintiff. However, his Honour declined to impose the following conditions which had been sought by the plaintiff:

The defendant remained in custody on remand with respect to the September 2021 charges until 10 November 2021, when he was granted bail. His liberty was subject to the ISO made by Dhanji J. As required by the conditions of his ISO, he was fitted with an ankle bracelet to allow electronic monitoring of his movements. The defendant returned to live with his mother at Tenamit. However, within a week, his mother raised concerns about his conduct with his DSO, whom she told that she would prefer that the defendant reside elsewhere.

A change of residence was arranged and the defendant moved to temporary accommodation at Motto Farm, a motel in Heatherbrae. On 21 November 2021, the DSO conducted an unscheduled home visit to the motel room and found the defendant’s niece and her friend (both minors) there. Contrary to the conditions of the ISO, the defendant had not obtained prior approval for this visit. Further, he was in breach of the condition that he not associate with minors. In addition, his phone indicated that, on 19 November 2021, he and LW had communicated with each other in breach of the ADVO. It appears that LW instigated the contact and sent him a message through Facebook messenger at 11.29pm on 19 November 2021:

In further messages, LW raised the prospect of sexual intercourse between them to which the defendant responded positively.

On 22 November 2021, the defendant met with the DSO and others to discuss accommodation and other matters, including the unauthorised contact with LW. The defendant, who denied that he had used illicit drugs, consented to a drug test.

A drug test conducted on 24 November 2021 detected amphetamine and methyl amphetamine. This constituted a further breach of the defendant’s ISO. Subsequently, on 25 November 2021, the defendant breached his ISO and the rules of the hotel by having a woman, CE, spend the night there. As a consequence, the owner of Motto Farm informed the DSO that the defendant was no longer permitted to reside there. The DSO arranged for the defendant to move to Sanctuary Place at Maitland on 26 November 2021.

On 30 November 2021, the defendant received a written warning from his DSO that he had breached various conditions of his ISO, including having visitors without the prior approval of the DSO; not associating with minors; and not have contact with LW.

The OIMS case notes for 6 December 2021 recorded:

On 8 December 2021, the DSO directed the defendant to attend the Maitland Police Station to be charged with breaches of his ISO. On that day, he cut off his electronic monitoring equipment. This triggered a tamper alert which notified the Electronic and External Monitoring Group what had occurred. The defendant failed to attend the Maitland Police Station and could not be found. On 9 December 2021, the defendant was charged with four offences of breaching his ISO and one charge of destroying or damaging property (the electronic monitoring equipment).

The defendant remained at large until his arrest on 20 December 2021. He was eventually found in the company of LW. Other than breaching his ADVO in respect of LW, there was no suggestion that he had otherwise offended against her at this time. He was charged with breaching the ADVO in respect of LW on 20 December 2021. He has pleaded guilty to this offence. As a result of the offence and the outstanding charges, bail was revoked and the defendant was returned to custody, pending determination of the outstanding charges which are listed for mention on 24 February 2022 and 30 May 2022. It is not yet known when they will be determined.

It would appear to be common ground that the NDIS plan will continue. The material in evidence does not provide detail as to what the NDIS plan will involve.

Although the defendant worked as a labourer between the ages of 17 and 19, he has otherwise been unemployed. He is unlikely to obtain employment until his substance use disorder has been adequately treated.

Although the defendant’s mother provides him with emotional support, it is neither practical nor suitable for him to reside with her. She would appear to be unable to control his conduct or his substance abuse.

As referred to above, the evidence has included several risk assessments relating to the defendant. The risk posed by the defendant to the community is sufficiently summarised in the following extract from Mr Ardasinski’s report dated 21 May 2021:

As referred to above, the first question is whether the threshold requirement in s 5B(d) is met: that is, whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

The evidence establishes that the defendant has a high risk of further violent offending. The risk profiles referred to by the experts in their reports do not distinguish between the risk of committing a further serious offence (as defined in the Act) and the risk of committing a further violent offence, which may not amount to a serious offence.

The risk to the community posed by the defendant derives from a number of factors, principally his inability to control his anger and chronic substance abuse. At the time of his commission of the index offence he was, on his own report (as recorded in the pre-sentence report), consuming $200 worth of ice per day and had been on a “drug binge” for about three months before the offending.

The chronic substance abuse with prohibited drugs leads the defendant to associate with criminals, disinhibits him and inclines him to express himself violently in response to perceived threats or imagined infidelity by an intimate partner. While at liberty he is generally violent towards intimate partners although his victims also include other men (as in the index offence). While in custody, he regularly incurred institutional misconduct charges for failing drug tests and also for violence. His custodial records indicate that he has been involved in fights on at least eight occasions. These occasions include incidents in February and March 2021 and not infrequently involved the defendant punching another inmate’s head in response to a dispute about a minor matter.

The issue between the parties turns on the definition of serious offence. Mr Edwards, who appeared for the defendant, contended that while it was accepted that I could be satisfied to a high degree of probability that the defendant would commit another violent offence if not kept under supervision, he argued that I could not be so satisfied that he would, in those circumstances, commit another serious offence, as defined by the Act. Mr Edwards relied on the fact that the index offence was the only serious offence which the defendant had committed and argued that it did not fit into the defendant’s general pattern of offending. Mr Edwards contended that the distinguishing features of the index offence included that it was committed in company with another male against another adult male and that the defendant himself did not inflict the blow which caused the wounding. He submitted that it was significant that the defendant had not, by his own acts (as opposed to acts for which he was responsible in accordance with the principles of joint criminal responsibility), ever caused another to suffer grievous bodily harm, as distinct from actual bodily harm. Mr Edwards distinguished the index offence from the defendant’s usual pattern of offending of assaulting a female with whom he was in an intimate relationship when no one else (except in the case of the 2014 offences, a young child) was present.

The wording of the definition of “serious offence” is significant. It is defined as a serious indictable offence that is constituted by a person “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.” It follows that the consequences for the victim - death or grievous bodily harm (meaning really serious harm) - must be serious but the defendant’s intention need be no more than to cause actual bodily harm or recklessness as to causing actual bodily harm. Thus, whether an offence is a serious offence depends on extraneous factors, such as the hardness of the surface of the floor on which the victim falls when she is punched; whether the baby when thrown lands on a bed, or on the floor; whether, when the baby is kicked, she suffers trauma to her head or breaks her spine, or simply sustains a bruise and whether the blood flow from the laceration can be staunched or results in a major haemorrhage. It could not reasonably be suggested that the defendant (or, indeed, any offender) is capable of calibrating the consequences of an assault so as to achieve actual bodily harm but fall short of grievous bodily harm. This is particularly so when the trigger for offending behaviour would appear to be the use of ice.

The incidents in gaol where the defendant has punched another inmate’s head could readily fulfil the definition of serious offence, if the consequences for the victim were sufficiently serious. It is a matter of common experience in the courts that a single punch can lead to grievous bodily harm or death, although, on occasions, the force of the impact causes no more than transient soreness or bruising in the victim.

The past is generally regarded as a guide to the future (see, for example, Minister for Immigration v Guo (1997) 191 CLR 559 at 575-576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); [1997] HCA 22). In the present case, the defendant and his victims have been fortunate that the harm he inflicted was not greater. Each of the assaults committed by the defendant carried with it a risk that the victim would suffer grievous bodily harm. There is an overwhelming likelihood, bordering on a certainty, that the defendant will, without supervision, continue to commit assaults (his recent conduct being a regrettable indication of this propensity), at least until his substance use disorder is appropriately treated. Although it is a matter of chance whether any of these future assaults will result in grievous bodily harm, each future assault carries a substantial risk that the harm to the victim will fall into this category. In these circumstances, I am satisfied to a high degree of probability that there is a high risk that the defendant will, unless an ESO is made, commit another serious offence.

In these circumstances, I am persuaded by the evidence and the comprehensive submissions made by Ms Curry, who appeared for the plaintiff, that an ESO ought be made. It is also significant that Mr Edwards accepted that, if I was satisfied that the threshold had been reached, it was appropriate to make an ESO. Recent evidence has demonstrated the salutary effect of the ISO. But for the ISO, the defendant’s recourse to prohibited drugs would not have been detected and he would have continued to abuse substances without any effective supervision in the community. The ISO meant that at least he was under supervision and his conduct could be monitored. These measures go some way to ameliorating the risk posed by the defendant. Further, it is significant that the DSO contemplates residential drug rehabilitation for the defendant as a way of assisting him to overcome his substance abuse disorder and proposes to arrange for him to be admitted to such a facility when his court matters have been resolved. But for the assistance of the DSO, it is unlikely that the defendant will be either willing or able to arrange for such rehabilitation. There is no evidence on the basis of which I could conclude that the other community supports, such as the NDIS plan, would be adequate for this purpose, without an ESO.

It is, accordingly, necessary to turn to the conditions proposed by the plaintiff.

Mr Edwards did not dispute any of the conditions imposed by Dhanji J on the ISO which was made on 28 October 2021. However, he disputed the additional conditions which the plaintiff sought which were not regarded as necessary by Dhanji J.

The disputed conditions fall into two categories: those in Part I: Access to the internet and other electronic communications; and those in Part L: Personal details and appearance. These will be addressed in turn.

The conditions sought by the plaintiff under Part I at the hearing of its application for an ISO were as follows:

Dhanji J accepted the defendant’s submissions at the preliminary hearing that conditions 33, 34, 35, 38, 40, 41 and 43 were not required as there was no evidence that the defendant used the internet. This explains why Dhanji J made conditions 36, 37, 39 and 42, which principally relate to mobile phones, and not the balance of the conditions in that Part. However, the communications between LW and the defendant in November 2021, which post-dated the making of the ISO, were made via Facebook messenger, which is an application downloaded from the internet. Thus, the distinction which his Honour drew on 28 October 2021 became otiose once the defendant began to use Facebook messenger. While the defendant’s use of the internet may be limited (it would not appear that he uses email or dating apps or accesses websites), he does, and can, use it to communicate in an analogous way to the sending and receiving of text messages. For these reasons, I am satisfied that the conditions omitted from Part I by Dhanji J when making the ISO ought be included in the ESO.

The conditions sought by the plaintiff under Part L at the hearing of its application for an ISO were as follows:

Of these conditions, Dhanji J included only condition 48. Ms Curry submitted that these conditions were designed to ensure that the police could locate the defendant if he absconded, as occurred in December 2021 for a period of about a fortnight. Once again, this occurred after the preliminary hearing before Dhanji J. The OIMS case notes indicate that the police endeavoured to locate the plaintiff without success for about two weeks. In these circumstances, I consider that conditions 46 and 49 are necessary. I regard condition 47 as excessive since, if the defendant wants to change his appearance, for whatever reason, there would not appear to be any reason why he ought not to do, as long as he notifies his DSO within 12 hours of doing so. This time period ought also be inserted in condition 48 to require the defendant to allow the DSO to photograph him within 12 hours of a significant change in his appearance.

The plaintiff seeks an ESO for a term of three years. I am persuaded that this is an appropriate length of time for such an order in the present case.

The plaintiff also seeks ancillary relief regarding access to the Court file. As this application was not opposed, I am disposed to grant it.

For the reasons given above, I make the following orders: