State of New South Wales v Scott David Lynn

1. [1]

   HIS HONOUR: Pursuant to s 5H of the Crimes (High Risk Offenders) Act 2006, the plaintiff, the State of New South Wales, sought a high risk violent offender extended supervision order in respect of the defendant, Scott David Lynn. This court may make such an order if it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violent offence if he is not kept under supervision: s 5E(2) of the Act. On 17 December 2013, I made an extended supervision order, subject to certain conditions. These are my reasons for that decision.

The index offence/sentence

1. [2]

   On 7 November 2008 I sentenced the defendant to imprisonment for 7 years, with a non-parole period of 4 ½ years, for manslaughter: R v Scott David Lynn [2008] NSWSC 1122. The Crown had accepted his plea of guilty to that charge in satisfaction of an indictment for murder. In my remarks on sentence I summarised the facts as follows:

2. [3]

   The statement of facts did not identify the weapon used, but it was the opinion of a forensic pathologist who had conducted a post-mortem examination that it was a narrow blade of some kind, most likely a knife. The plea of guilty to manslaughter was accepted on the basis of excessive self defence, that is, that the defendant believed that he had to defend himself but his response was disproportionate to the threat which he perceived.

3. [4]

   The sentence commenced on 18 August 2006, so that the defendant became eligible for parole on 17 February 2011. However, he was not released on parole until 17 February 2013. His conditional liberty was short lived, as his parole was revoked on 31 May 2013 for reasons which I shall explain later. He served the balance of his sentence, which expired on 17 August 2013. On 15 August Button J made an interim extended supervision order, pursuant to s 10B of the Act, and ordered that two psychiatrists be appointed to examine the defendant, pursuant to s 7(4). That interim order was renewed twice, and had expired at the time of the hearing before me. However, the defendant was then in custody, following alleged breaches of conditions of the interim order. Those charges were defended and were yet to be heard.

4. [5]

   The defendant was 29 years old at the time of the manslaughter. At the time I made the extended supervision order he was 37. In my remarks on sentence I noted at [10] that he had a lengthy criminal history, commencing in the Children’s Court in the early 1990s, comprising offences of violence and dishonesty, together with drug and driving offences. I found it disturbing not only that a weapon was used to commit the manslaughter but also that he was carrying one at the time, given that some of his prior convictions for violence involved the use of a weapon: [19]. He had expressed remorse for his crime to a Probation and Parole officer, but I found it difficult to assess how genuine that was. He claimed to have little or no memory of the killing of the deceased, including the weapon he had used, but I found this difficult to accept: [15]. I observed at [16] that he did not present “as a person prepared to accept full responsibility for his wrongdoing on the occasion in question or in the past.”

5. [6]

   On his background generally, I had a pre-sentence report, together with the evidence of the defendant himself and of his mother. I summarised that material in this way:

6. [7]

   The author of the pre-sentence report had written that the defendant’s response to supervision in the past had “generally been lacking and characterised by failing to address his offending behaviour and re-offending.” However, in the light of his expressed willingness to undertake counselling upon his release, he was reported to be “suitable for a high level of intervention by this Service, commensurate with the assessed risk”: [16]. I was guarded about his prospects of rehabilitation, but found some comfort in the support which appeared to be offering from his family [17].

Criminal history/custodial offences

1. [8]

   It is necessary to refer to the offences of violence in the defendant’s criminal history, some of which were committed in association with other offences. They were committed over the period between 1992 and 2005, initially leading to findings of guilt in the Children’s Court but, for the most part, to convictions in the Local Court. For present purposes, it is convenient to refer to all of them as convictions. He was convicted of assaulting police on 5 occasions, of common assault on 6 occasions (on the majority of those occasions for 2 counts), of assault occasioning actual bodily harm on 2 occasions, of using an offensive weapon with intent to commit an indictable offence on 1 occasion, and of using a weapon to prevent his lawful apprehension, also on 1 occasion. It is appropriate also to refer to a conviction for possessing an offensive weapon in a place of detention.

2. [9]

   Of those appearances, 16 in all, 10 resulted in non-custodial dispositions and 6 were dealt with by prison terms. The sentences ranged from 2 months to 2 years. I have been provided with the facts of some of these matters.

3. [10]

   In December 1996, the defendant was visiting his de facto partner at a residential drug and alcohol facility. He fell asleep and, on being woken up in the presence of a female staff member, he became aggressive and threw a clock at the wall. A male resident intervened, trying to get him outside the premises, and the defendant kneed him in the groin. Outside he punched that victim in the face and pushed him into the front wall of the premises, causing a hole in the fibro, and then into a glass pane window, which smashed. People came to the victim’s aid and the two men were separated, but the defendant was seen shortly afterwards threatening other people with a knife. This led to a conviction for common assault, for which he was placed on a bond.

4. [11]

   In October 1998, police attended a hotel at Tamworth where the defendant was staying, apparently on suspicion of his involvement in drug offences. After three officers gained entry to the defendant’s room, he assaulted them, pushing one of them into a television set, charging at another of them, and kicking two of them as he was restrained and handcuffed. He was convicted of assaulting police and sentenced to imprisonment for 16 months, comprising a minimum term of 4 months and an additional term of 12 months.

5. [12]

   In June 2002, at the home of his sister, he became involved in a heated verbal exchange with her partner, who was to be the victim of the offence. During that exchange the defendant produced a knife. They moved to the front yard. There the victim, fearing that he would be stabbed, struck the defendant with a broom handle, whereupon the defendant picked up a tomato stake and struck the victim with it several times, causing lacerations to his chest and arms. He was convicted of assault occasioning actual bodily harm, and sentenced to imprisonment for 9 months.

6. [13]

   In the early hours of a morning in June 2003, the defendant engaged in violent conduct at Kings Cross. He threw a bottle at a taxi and, when the driver got out of his vehicle to inspect the damage, he threatened the driver with a knife. He also grabbed a bottle and broke it, so that it had jagged edges. He approached the taxi driver, who feared that he was to be stabbed. He desisted when another person drove a vehicle towards him, causing him to step back onto the kerb.

7. [14]

   Shortly thereafter, he got into an argument with a woman and slapped her across the face. At this time also he was observed to be carrying a knife. When a man intervened on behalf of the woman, he threatened to kill that man and another person. He picked up a number of beer bottles and threw them at one of those persons, hitting him on the head. Another man who intervened was threatened by the defendant, who was wielding the knife.

8. [15]

   Police arrived and the defendant threw the knife away and ran, but was arrested after a struggle. In the event, as a result of this incident he was convicted of using an offensive weapon with intent to commit an indictable offence, and a number of charges of common assault, a charge of having custody of a knife in a public place and other related charges were taken into account on a Form 1. He was placed on a 12 month bond. That may seem a surprisingly lenient outcome, but it must be understood that he was dealt with about a year after his arrest, during which time he had been in custody. Moreover, the bond was clearly directed to fostering his rehabilitation, in the light of a psychiatric report which was before the magistrate. The bond was conditioned upon his accepting Probation and Parole supervision, with particular emphasis upon drug and alcohol rehabilitation.

9. [16]

   Two incidents occurred at the home of the defendant’s grandmother. In December 2004, he became engaged in a heated argument with his uncle, during which he pushed his uncle in the chest and said, “You fucking tell the police and I will fucking kill you.” For this he was charged with common assault.

10. [17]

    The second incident occurred in January 2005. The police facts record that the defendant was not welcome at his grandmother’s home. On that day his grandmother and his uncle arrived at the home. The uncle entered the home, to find that the defendant had broken in. When the uncle said that he would call the police, the defendant said that he would kill him if he did so. The uncle walked outside the house and the defendant followed him. The grandmother called out, “Look out, he’s got a knife.” The uncle was confronted by the defendant, who was holding what was described in the facts as “an object” in his hand. When the uncle asked him to leave, the defendant threatened him, pushed a finger into his nose and spat into his face. The grandmother and the uncle reported the incident to police and two officers went to the home. However, the defendant assaulted one of them and fled. He was arrested three days later.

11. [18]

    Arising from this second incident, he was charged with common assault and assaulting police. He was convicted of the charges arising from both incidents in February 2006, and again was placed on a 12 month bond. On this occasion he had been in custody for a discrete period of about 9 months before he was dealt with. He was on that bond at the time of the manslaughter.

12. [19]

    Four further incidents giving rise to offences for which he was dealt with involved his attempts to avoid apprehension for shoplifting. In July 1997, he was observed stealing clothing from a department store. Having been confronted by security staff, he became aggressive and ran from the store, but was apprehended by another employee. He picked up a pair of scissors from a desk, threatened staff with them, and left the store. He was apprehended outside by a number of security officers. He was convicted of 2 counts of common assault and placed on a 3 year bond.

13. [20]

    In August of the same year he was apprehended at a department store after attempting to steal some items. He produced a folding knife from his clothing, unfolded the blade and attempted to strike a security officer. That officer kicked him in the chest to avoid being stabbed, and he was restrained and handcuffed by other officers. Again, he was convicted of 2 counts of common assault. On this occasion he was sentenced to 6 months periodic detention, which was later converted to a term of full-time custody.

14. [21]

    In March 1999, he assaulted two men who were trying to detain him after he had stolen items from a clothing store. Yet again he was charged with 2 counts of common assault, and on this occasion was sentenced to imprisonment for 4 months.

15. [22]

    Finally, in February 2000 he was observed to be stealing items from a department store and, when he was approached by a member of the security staff, he produced a syringe and threatened to stab that person. For this he was convicted of using an offensive weapon to prevent his lawful apprehension and sentenced to imprisonment for 2 years with a non-parole period of 12 months.

16. [23]

    The offence of possessing an offensive weapon in a place of detention was committed in September 2005. At the time he was confined at Parklea Correctional Centre, and during a regulation strip search he was found to have a gaol made knife on his person. For this offence he was fined.

17. [24]

    Throughout his various periods in custody the defendant has been dealt with for fifty-four misconduct charges. Eight of them were for violent conduct, described either as fighting or assaults, and seven of them for aggressive behaviour, described as intimidation, threatening behaviour, or threatening or abusive language. His behaviour in custody included an occasion in 2002 when, resisting an attempt by two officers to move him to another wing, he bit one of the officers on the arm. In October 2006, while he was in custody in respect of the manslaughter, he attempted to strike another prisoner with a sharpened metal object. On 15 February 2013, two days before he was released on parole for the manslaughter, he was involved in a fight with another prisoner. I have referred to his conviction in September 2005 for being in possession of a gaol made knife. I should add that in October 2000, during a search of his cell, another metal object described as a “shiv” was found.

Response to conditional liberty/supervision

1. [25]

   I have earlier referred to the defendant’s unsatisfactory response to conditional liberty. Some of the offences of which he has been convicted were committed while on bonds in respect of earlier offences, and on several occasions he has had parole revoked. As I have said, he was subject to a bond at the time the index offence of manslaughter was committed.

2. [26]

   Following his release on parole on 17 February 2013, he was directed to a residential program at Rainbow Lodge at Glebe. There he complied with his reporting obligations, but otherwise his participation in the program was unsatisfactory. On 29 March 2013, he overdosed on heroin and was taken to hospital. He told his supervising officer that he had used the drug because of “severe boredom.” On 10 May 2013 he commenced the Self-Management and Recovery Training (“SMART”) program, but on 18 May drug testing detected the presence of methylamphetamine.

3. [27]

   On 21 May 2013, he was issued with a warning of eviction from Rainbow Lodge. The manager reported that he often “pushes the boundaries” in relation to the centre’s routine and rules, and suspected that he may have been using drugs as his behaviour was “quite erratic.” From a Corrective Services’ case note which was in evidence, it appeared that on 23 May an enquiry was made of his mother whether he could reside with her and her partner, but she said that they did not want him to do so as they “can’t trust him” and would be worried about “their safety.” There seemed to have been a diminution of the family support which I believed he enjoyed when I sentenced him. In the event, on 31 May, his parole was revoked on the basis of his inability to adapt to normal lawful community life, his drug use, and his failure to obey directions by his supervising officer about seeking assistance to control his drug abuse and undergoing psychological assessment and counselling.

4. [28]

   Upon his release at the expiration of his sentence, on 17 August 2013, he resided at the Bundaleer Community Offenders Support Program (“COSP”) in South Windsor. However, as noted above, he was arrested on 12 September 2013 for alleged breaches of the conditions of his interim supervision order, and refused bail. It is for that reason that he was in custody at the time the proceedings for a final order were conducted before me and I made the order. As those charges were defended and had not been dealt with at that time, I did not have regard to them in arriving at my decision.

The statutory framework

1. [29]

   There are certain formal requirements under the Crimes (High Risk Offenders) Act which must be met before the defendant could be subject to an extended supervision order. However, it is not necessary to refer to them as they are not in issue in this case. What is at issue is whether he is a “high risk violent offender” within the meaning of s 5E of the Act. That section provides:

Psychiatric/psychological reports

1. [30]

   On this issue, in addition to the background material to which I have referred, the State relied upon the reports of Mr Patrick Sheehan, psychologist, and those of two psychiatrists, Dr Samson Roberts, who also gave oral evidence, and Dr Jeremy O’Dea. In the defence case I received a report of Dr Christopher Lennnings, psychologist. On the issue of supervision the State presented a proposed risk management plan by Ms Vicki McCarthy, Community Corrections officer. An affidavit of Ms McCarthy was also read, and she gave oral evidence.

2. [31]

   The defendant declined to be interviewed by Mr Sheehan. His report of 22 May 2013 was prepared after a review of extensive material held by Corrective Services, comprising records of the defendant’s behaviour and progress within the prison system as well as material relating to the index offence and his background and criminal history.

3. [32]

   Mr Sheehan found that the defendant met the diagnostic criteria for Antisocial Personality Disorder, being a “pervasive pattern of disregard for and violation of the rights of others” since his mid-teens. This was evidenced by a pattern of failure to conform to social norms, deceitfulness, impulsivity, irritability and aggressiveness, recklessness and disregard for the safety of himself and others, consistent irresponsibility and a lack of remorse for having hurt or mistreated others. Mr Sheehan noted his history of problematic drug use, particularly of heroin and amphetamines. He observed that much of his criminal behaviour, including his violence, appeared to be associated with drug use, some episodes of violence being escalated by drug intoxication. Nevertheless, he saw his behaviour as “also driven by personality and other factors”, which he identified in his report.

4. [33]

   Mr Sheehan reported that in 2009, while in custody, the defendant had participated in the Controlling Anger and Learning to Manage it Program (CALM). It appears that his participation was positive and he completed 24 sessions. The object of the course is to encourage participants to develop skills to “deal effectively with situations that may trigger emotional arousal, particularly those that may lead to violence, such as anger and jealousy.” Mr Sheehan described it as “primarily psycho-educational”, adding that it is not “an intensive therapeutic program, and does not require the participant to disclose or demonstrate change.”

5. [34]

   In March 2010, again while in custody, the defendant undertook the Violent Offender Therapeutic Program (VOTP). This program is significantly different from CALM, being a cognitive behavioural therapy program which runs for about 12 months, conducted by psychologists working in a group setting. His progress in this program was poor, showing no “intrinsic motivation” for engaging in it. He was removed from the program in July 2010 after being charged with fighting within the unit.

6. [35]

   He made a second attempt at the program in October 2010, again without success. There was observed to be “a poverty of content in his self-disclosure and a lack of ownership of his history of violence.” Among other things, he “maintained that he could not recall the index offence and appeared to distance himself from the event, referring to himself in the third person when discussing it.” His account of his history of violence was found to be inadequate. He was discharged from the program in December 2010, after case management meetings in which he displayed hostility and was aggressive and argumentative. Mr Sheehan found it difficult to reconcile his positive response to the CALM program with his poor performance in the VOTP, but postulated that he found the CALM program “more tolerable because it did not require him to challenge his own thoughts or behaviour.”

7. [36]

   Mr Sheehan assessed the risk of the defendant re-offending in a violent way by reference to the static and dynamic factors which have become familiar in the area of high risk sexual offenders. There is no need to set out his analysis of those factors. It is sufficient to say that he concluded that the defendant presents “a high risk of violent re-offending relative to other male offenders.” He noted that he was “unable to persevere with a violent offender treatment program and can be considered untreated,” that he “does not believe his behaviour is problematic or violent,” and that “interventions have been unsuccessful in inviting him to question that belief.” He considered that he “continues to have a constellation of vulnerabilities that will pre-dispose him towards potentially violent encounters.”

8. [37]

   Mr Sheehan identified in the defendant “two general pathways to violence.” The first was in attempts to avoid apprehension during acts of non-violent offences, in which the victims could be “security staff, police, or passers-by who happen to become involved.” The second was through interpersonal conflict, in which he “escalates hostilities with another person”, who might be a stranger, a family member or an associate. The more would this be so with “antisocial or aggressive associates.” Mr Sheehan observed that both these scenarios “involve a perception of threat and the use of violence to resolve the issue.” A violent response might be escalated by substance abuse or the possession of a weapon, as it would by his holding “misanthropic, dismissive, distrustful and antagonistic attitudes towards others” or by “negative affectivity and rumination”, contributing to the risk by fuelling “feelings of injustice, insult and entitlement … .”

9. [38]

   Two significant paragraphs in Mr Sheehan’s report should be set out:

10. [39]

    Mr Sheehan expressed concern at the prospect of the defendant being in the community without supervision, while acknowledging that whether he constituted an unacceptable risk for the purpose of the Act is a matter to be determined by the court. He expressed the benefits and limitations of an extended supervision order in this way:

11. [40]

    Both Dr O’Dea and Dr Roberts assessed the defendant while he was at liberty subject to the interim supervision order. Dr Roberts saw him in late August 2013, and prepared a report on 3 September 2013. He also provided a very brief report concerning the proposed conditions of an extended supervision order on 23 October 2013. Dr O’Dea saw the defendant on 2 September 2013, and prepared a report on 10 September. Both doctors were supplied with a body of material, which is in evidence. Their assessments were broadly consistent with that of Mr Sheehan.

12. [41]

    Both psychiatrists diagnosed Antisocial Personality Disorder and a substance abuse disorder. Both observed him to attempt to justify his violent offending prior to the manslaughter, or to minimise the gravity of it. Indeed, he denied having sustained some of the convictions in his criminal history, suggesting that they had been wrongly recorded against his name. He would not discuss the circumstances of the manslaughter with either of them, telling Dr O’Dea that he had no memory of the event and telling both psychiatrists that he was appealing against his conviction and sentence.

13. [42]

    To both psychiatrists the defendant gave a history of drug abuse since his teenage years, although he said that this was confined to the intermittent use of amphetamines from the early 2000s. Dr O’Dea also noted a reference in an earlier psychiatric report to his abuse of alcohol from his early teens, his main drug of choice, however, being intravenous amphetamines.

14. [43]

    The defendant told Dr Roberts that he did not drink alcohol to excess, and did not see his drug use as “problematic or that it was affecting his lifestyle nor was it related to his offending behaviour.” Dr Roberts took the view that he minimised the significance of his substance use and lacked insight into its association with his offending behaviour. He noted that the use of substances occurred “even in circumstances where it would present a breach of bail conditions and would almost certainly lead to his re-incarceration.” I take this to be a reference to the revocation of his parole at the end of May 2013, noted at [27] above.

15. [44]

    Dr O’Dea expressed the view that he has “a longstanding, extensive and ongoing history from his teenage years of Substance Use Disorder, in particular a history of amphetamines, heroin, cannabis and alcohol use disorder.” I take this to be a conclusion drawn not just from the history provided to him by the defendant, but from the whole of the material supplied to him.

16. [45]

    Dr Roberts noted the defendant’s “tendency to minimise the nature of his offending behaviour,” in particular “the extent of his propensity to aggression and the significance of his substance use.” He thought it possible that his “tendency to minimise these aspects of his history may reflect his attitude that his conduct in this regard is not aberrant, excessive or misplaced, rather than an overt attempt to deceive.”

17. [46]

    He saw the defendant’s Antisocial Personality Disorder as the “psychiatric condition of greatest significance”, describing that disorder as “a pervasive, persistent, maladaptive pattern of thought and behaviour.” He reported that treatment of the disorder is “particularly challenging”, relying upon “the insight of the individual and motivation to engage in treatment.” He added that while the condition may improve with age, that was not invariably the case. He expressed the view that the defendant’s “lack of insight with respect to the nature of his conduct and his apparent lack of motivation to engage in therapy in a meaningful and productive way, suggests that he would fall into the proportion of people with Antisocial Personality Disorder who have a poor prognosis.”

Risk assessment

1. [47]

   On the question of the defendant’s risk of committing a further serious violence offence, Dr Roberts expressed the following opinion:

2. [48]

   Dr Roberts adhered to his opinion about the risk of further serious violence offences in oral evidence. In cross-examination, he was taken to the definition of “serious violence offence” in s 5A(1)(a) of the Act, set out above. He understood that he was being asked whether his opinion embraced the risk of an offence of a nature which would meet that definition. The effect of his evidence was that it would, in the light of the defendant’s history of offending behaviour and, in particular, the manslaughter offence, which would clearly fall within the definition. He also maintained his opinion that the risk was “high”, while acknowledging that risk analysis generally is “in part, subjective and in part, objective,” it is not “an exact science”, and is “aimed at reducing uncertainty but … does not provide certainty.”

3. [49]

   On this same issue Dr O’Dea expressed his opinion in his report as follows:

4. [50]

   It was to the issue of risk assessment that the report of Dr Lennings was directed. He did not interview the defendant and made no attempt to assess risk in his case on the basis of material supplied to him. His report examined the process of risk assessment generally, by reference to literature on the subject.

5. [51]

   He noted argument about actuarial instruments, but wrote that the “reality is that they have consistently proven to be more accurate than clinical judgment.” He added:

6. [52]

   Dr Lennings reported that risk assessment devices (both actuarial and dynamic or needs based) have generally been shown to have only “moderate predictive validity.” He noted that in Mr Sheehan’s report the actuarial tool known as Violence Risk Scale (VRS) produced an overall result placing the defendant in the high range of risk for violence. He referred to a method of assessing predictive accuracy called the Receiver Operator Characteristics (ROC) analysis. By that analysis, he wrote, two questions would arise in the defendant’s case. Firstly, what is the probability that for his “cut off score” he will not commit a further violence offence? More importantly, what is the ability of the VRS to predict that he will commit a serious violent offence, as opposed to any offence? The VRS cannot answer that question as it “does not predict seriously violent offences, but only any violent offence.” He noted that Mr Sheehan’s report did not specify a particular score for the VRS in respect of the defendant. Nevertheless, he also noted that Mr Sheehan’s report canvassed the “limitations to risk assessment in an appropriate way.”

7. [53]

   That said, he wrote that typically, in assessing the risk both actuarial and dynamic factors are combined, and the “VRS is a powerful and well regarded risk assessment device as it does this in the one instrument.” He added:

8. [54]

   Finally, on this issue he quoted a passage from a study by Ogloff and Doyle, relating to sexual offending:

9. [55]

   Both Mr Sheehan and Dr Roberts provided brief written responses to Dr Lennings’ report. Mr Sheehan saw “nothing controversial” in it. He noted that Professor Ogloff had provided a risk assessment for the Crown in an application under the Act relating to a sex offender: State of New South Wales v Richardson (No 2) [2011] NSWSC 276, 210 A Crim R 220. He raised the point “because it contextualises the criticisms made of risk assessment. That is, the criticisms challenge us to do better assessments, and to be transparent about the limits of this science.”

10. [56]

    Dr Roberts had given evidence about the process of risk assessment before being asked to comment upon Dr Lennings’ report. In addition to the evidence he gave concerning the defendant, summarised at [48] above, he agreed that generally a pure clinical test was “problematic.” He added that a “risk assessment that draws on a statistical assessment in addition to other factors has been demonstrated to be the most appropriate approach .,.. .” He said that actuarial tools “by and large provide very much cross-sectional impression of risk and … they are not particularly useful in incorporating those factors of an individual that could or would change with the passage of time.”

11. [57]

    When Dr Lennings’ reference to a low “base rate of offender recidivism” as a limitation upon the prediction of serious violence was put to him, he acknowledged that “invariably an assessment of violent offenders would involve an assessment of … a sub-group of the broader population which by definition means it’s a smaller group.” He added that those who commit serious violence will “invariably represent the smallest group, and therefore bear higher risk than everyone else statistically of committing a future offence.” Even people “at the lowest end of that smallest group are at higher risk than the rest of the population,” while people “at the higher end of that small group are at higher risk relative to their lower risk counterparts within the same group.” Generally, he acknowledged that statistical analysis based on a small number of people is “the best we have and unfortunately it’s what we have to base decision making on.”

12. [58]

    In his written response Dr Roberts saw Dr Lenning’s report as consistent with the evidence he had given. He wrote that the “evaluation of risk is fraught.” The use of a “combination of actuarial/statistical/psychometric assessment and clinical/dynamic/psychosocial considerations … provides the best form of risk assessment, and yet it remains imperfect.” He added that the court should remain mindful of the limitations,” but that, notwithstanding them, “such assessments offer the only way of presenting an impression of risk.”

13. [59]

    As to treatment for the defendant’s substance abuse, Dr Roberts noted that it “relies very substantially on the insight, motivation and compliance of the individual.” It did not appear to him that the defendant “considers his propensity to use illicit substances to be reflective of problematic drug use.” He did not think that pharmacological therapy would be appropriate, for reasons which he identified in his report.

14. [60]

    He reported that treatment is available through public and private health services. Group therapy programs and individual therapy programs are available through local area drug and alcohol services. He added, however, that the “prognosis for a person lacking in insight and motivation would be considered very poor,” and that the “presence of such a patient in a therapy group program would potentially represent a subversive influence in the group, thereby compromising the progress of other group members.” Residential drug and alcohol treatment facilities are also available in the community, but he noted that all these programs involve a pre-enrolment assessment or a screening process, and he expressed the view that the defendant would be likely to be rejected because of his lack of insight and motivation.

15. [61]

    He thought that the problem would be best addressed by “an individual therapeutic relationship with a specialist drug and alcohol therapist” prior to pursuing entry into any of these programs. I was informed by Ms Abraham QC, who appeared with Mr Kelly for the State, that under a Mental Health Care plan the defendant could have twelve drug and alcohol counselling sessions with a psychiatrist or psychologist free of charge. In addition, the Violent Offenders Therapeutic Program could provide one on one counselling concerning his violent offending while he was at liberty under supervision.

16. [62]

    Dr O’Dea did not comment upon the defendant’s prognosis, but reported it to be “crucial” that he remain abstinent from alcohol and other drug use in the long term “in order to manage and minimise his risk of engaging in further offending behaviours in the community … .” He expressed the view that “at least in the medium term “… the judicious use of mood stabilising medications … as part of an overall community management program may prove of benefit” in assisting the defendant to control his anger, aggression and violence.

17. [63]

    Ms McCarthy’s risk management plan was prepared before the psychiatric reports were available, but had regard to Corrective Services material which included Mr Sheehan’s report. She proposed a regime of supervision with conditions familiar in cases involving serious sex offenders. These included monitoring the defendant’s movements, with provision for electronic monitoring, schedules of his movements to be provided by him, and a curfew, together with conditions relating to treatment and counselling, drug and alcohol testing, employment, the development of suitable relationships and associations, and a power of search directed to his access to weapons. Ms McCarthy also gave oral evidence, much of which was directed to the defendant’s alleged breaches of his interim supervision order. I refrain from referring to that evidence because, as I have said, those charges were outstanding at the time I made the extended supervision order. However, there was an aspect of her evidence to which I shall refer when I turn to the conditions of that order.

Unacceptable risk?

1. [64]

   As noted above, s 5E of the Crimes (High Risk Offenders) Act enables me to make an extended supervision order if I am satisfied 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: subs (2), but that finding may be made even though I do not determine that it is more likely than not that he would commit such an offence: subs (3). The notion of unacceptable risk, and the rider that the commission of a relevant serious offence need not be determined to be more likely than not, were introduced into the Act in respect of serious sex offenders in 2010 by amendment to s 9(2) and the insertion of subs (2A).

2. [65]

   In State of New South Wales v Richardson (No 2) (supra), Davies J examined the statutory scheme at [20]-[30] (225-230). His Honour referred to the second reading speech of the then Attorney General on the introduction of the unacceptable risk test and to authority in other jurisdictions relating to that expression. In particular, at [29] he cited a passage from a Western Australian decision, as follows:

3. [66]

   Closer to home, his Honour also referred at [30] to the judgment of RA Hulme J in State of New South Wales v Thomas [2011] NSWSC 118 at [13]-[20]:

4. [67]

   Counsel for the defendant, Ms Evers, acknowledged that he was properly characterised as a “violent offender” for the purpose of s 5E(2), but emphasised that the test for an extended supervision order is an unacceptable risk of the commission not of any violent offence, but of a serious violent offence as that expression is defined in s 5A. She argued that there is tension between the requirement in subs (2) of satisfaction to a high degree of probability that an offender poses an unacceptable risk of committing a serious violence offence, on the one hand, and the provision in subs (3) that there need not be a determination that that risk be more likely than not, on the other.

5. [68]

   I do not agree. In my view, the relationship between the two subsections is explained by the authorities to which Davies J referred in Richardson, particularly in the passage from the judgment of RA Hulme J in Thomas at [15]-[20] set out above. Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence. As RA Hulme J put it, that risk may be less than likely but still be unacceptable. What subs (2) requires is that I be satisfied to a high degree of probability that there is a risk of that kind.

6. [69]

   Ms Evers pointed out that, while the index offence of manslaughter was clearly a serious violence offence, the other offences of violence in the defendant’s criminal history did not fall into that category. She noted that Mr Sheehan considered the defendant to be in the high risk category of violent offending but did not commit himself as to whether that risk would embrace a serious violence offence. Similarly, Dr O’Dea, while identifying a number of significant risk factors for future violence, did not find it possible to quantify the risk of a further serious violence offence. While Dr Roberts reported that the defendant was “at high risk” of committing a further serious violence offence, she pointed out that it was not until he gave oral evidence that he considered the statutory definition of that expression. She challenged his assessment, arguing that in oral evidence he appeared to place undue weight upon the index offence, given that it was the only offence in the defendant’s criminal history which qualified as a serious violence offence. I did not understand that to be his approach. As I understood his evidence, the index offence was important but was to be viewed in the light of the rest of the defendant’s criminal history and the matters raised in the passage of his report quoted at [47] above.

7. [70]

   Ms Evers relied on Dr Lennings’ report as to the vagaries of the process of risk assessment, particularly where the risk to be assessed is the commission of a serious violence offence as opposed to violence offences generally. She noted that Mr Sheehan and Dr Roberts also recognised those limitations, generally agreeing with Dr Lennings’ examination of the issue. She also relied on the passage in Mr Sheehan’s report, quoted at [38] above, in which he acknowledged that the defendant demonstrated on occasions an ability “to consider consequences before acting, to regulate his temper, and to see alternatives to aggression.” She opposed an extended supervision order, submitting that an unacceptable risk of the commission of a serious violence offence had not been established.

8. [71]

   The views expressed in the expert evidence about unacceptable risk are important, but ultimately it is my responsibility to make a finding on that issue, taking into account the whole of the material before me. As Ms Abraham pointed out, while the earlier offences of violence in the defendant’s criminal history did not amount to serious violence offences, some of them might have had graver consequences if people had not intervened to restrain his conduct. This can be seen in the 1996 incident at a residential drug and alcohol facility summarised at [10] above, in the offence at a department store in August 1997: [20], and in the violent incident at Kings Cross in June 2003: [13]-[15]. As I observed when I sentenced him, a disturbing feature of some of his offences, including the index offence, was the use of a weapon, usually a knife. Equally troubling is his possession, and on one occasion his use, of sharpened objects while in custody.

9. [72]

   His Antisocial Personality Disorder is a serious condition which, apparently, is not readily amenable to treatment. It is clear that he has not adequately assumed responsibility for his offending behaviour. He lacks insight into his propensity for violence and the need to address it. Despite his positive participation in the CALM program, his poor response to the VOTP leaves that propensity untreated.

10. [73]

    His substance abuse also needs to be addressed. Mr Sheehan, Dr Roberts and Dr O’Dea all saw the danger of substance abuse contributing to violent behaviour on his part. It is clear that this is also a matter into which he lacks insight. As noted, substance abuse was a factor leading to the revocation of his parole at the end of March 2013. Generally, his response to supervision had been poor and it was apparent that a more intensive regime of supervision, such as that envisaged by Mr Sheehan in the passage in his report quoted at [39] above, was called for.

11. [74]

    For these reasons I was satisfied to the requisite degree that the defendant posed an unacceptable risk of committing a serious violence offence if not kept under supervision. I saw an extended supervision order as necessary to ensure the safety and protection of the community, as well as to encourage the defendant to undertake rehabilitation: s 3 of the Act.

Conditions/duration

1. [75]

   I made the order subject to conditions attached to it. These were amended conditions, the conditions originally proposed having some clauses which did not appear to be appropriate in this case.

2. [76]

   Ms Evers expressed concern about a number of the conditions, arguing that they appeared very similar to conditions commonly imposed in cases of serious sex offenders but are not appropriate for a serious violent offender. In his report Dr Lennings wrote that “in designing restrictions or conditions that might apply to an offender under supervision, such conditions typically should be related to the scenario most likely to involve re-offending, and typically related to criminogenic needs.” Dr Lennings continued:

3. [77]

   Dr Lennings also referred to research with a sample of New South Wales sex offenders under supervision suggesting that “arbitrary and harsh reporting and controlling conditions … were opposed to rehabilitative goals and may undermine rehabilitative efforts.” Other research revealed that the most common “re-offence” by offenders on supervision orders was a breach of the applicable conditions, “criminalising a class of administrative breaches and effectively leading to a situation where an extended supervision order became a conduit for incarceration and thus preventative detention.” All this research related to sex offenders.

4. [78]

   The conditions in the present case are in accordance with those foreshadowed by Ms McCarthy in her risk management plan, and consistent with the regime and goals of supervision envisaged by Mr Sheehan in the passage from his report to which I have referred, cited at [39] above. They were also considered by both psychiatrists to be appropriate. The defendant’s departmental supervising officer may require him to wear electronic monitoring equipment and to provide in advance schedules of his proposed movements. Ms Evers’ concern was that electronic monitoring would be imposed as a matter of course, and that arbitrary restrictions might be imposed upon his movements.

5. [79]

   Ms McCarthy, who was the defendant’s supervising officer, gave oral evidence about electronic monitoring. She recognised that the discretion resided with her, but added that it would be subject to direction at “a much higher level” upon her recommendation. Electronic monitoring had been required under the interim supervision order from the outset and, in answer to a question from me, Ms McCarthy agreed that it had been the practice invariably to impose electronic monitoring on high risk offenders. This could hardly be described as the exercise of a discretion. While I accept that the power of a supervising officer would be exercised in consultation with senior staff, and that electronic monitoring might frequently be seen as necessary at least in the initial stages of extended supervision, it is essential that the decision be made in the light of the facts and circumstances of the particular case. The same is true of every other discretionary exercise for which the conditions of an extended supervision order provides, in determining whether a particular direction should be given and, if so, for how long it should remain in place.

6. [80]

   The observations of Dr Lennings on this aspect are illuminating, and deserve careful consideration. Nevertheless, there is force in Mr Sheehan’s written response to this aspect of Dr Lennings’ report:

7. [81]

   In the present case some of the conditions, such as those prohibiting violent, harassing or intimidating conduct and the use of alcohol and drugs, prohibiting the possession of a weapon and providing a power of search and seizure to that end, and undergoing assessment and treatment related to the potential for violent offending, are uncontroversial. Others were challenged by Ms Evers: conditions concerning the defendant’s accommodation and the discretion to impose a curfew, the requirements to seek departmental approval to engage in volunteer work or undertake courses and, if necessary, to disclose his offending history to prospective employers, restrictions on his associations without departmental approval, a requirement that he notify his supervising officer of an intimate relationship and a discretion to reveal to the other party of that relationship his offence history, a requirement that he obtain permission to join any club or organisation, that he provide details of any vehicle used by him, and a requirement that he not change his name or alter his appearance. Put shortly, Ms Evers argued that all these conditions went beyond the scope of supervision directed to the protection of the community from the risk of a serious violence offence by the defendant.

8. [82]

   I trust that I do no injustice to Ms Evers’ careful submissions about these conditions by saying that they focus too narrowly upon the immediate risk of a serious violence offence, without regard to what might be described as a holistic approach to the reduction of that risk by addressing the defendant’s personal issues. To Mr Sheehan’s report on this aspect I would add the observation of Dr Roberts in oral evidence that such a regime “has a potential to create structure in Mr Lynn’s life which he has not had up until now.” He added that it “has the potential, at least in the short term and perhaps in the long term, to essentially morph a highly structured environment into a less structured environment, whilst maintaining safety for Mr Lynn and those in the community.” When the concern expressed in Dr Lennings’ report about exposing an offender to imprisonment because of administrative breaches of the conditions of supervision was put to him, Dr Roberts said that “if a person is so likely to breach an order that they cannot abide by the minutiae, the banality of the order, then there is probably a fair chance …, from a psychiatric perspective, that that same person would also be at risk of engaging in more serious breaches … .”

9. [83]

   It appeared to me to be appropriate to impose conditions enabling the defendant’s departmental supervising officer to monitor and direct his accommodation and movements, and his associations through contact with people, whether socially or through employment or education, so as to guard against his slipping into an environment conducive to re-offending. The challenged conditions are directed to this end, the conditions requiring him to disclose his criminal history in certain circumstances, or enabling his supervising officer to do so, being directed to the protection of the public. Undoubtedly, the conditions provide for a strict, indeed onerous, regime. However, I was satisfied that the intensive supervision for which it provides is appropriately directed to the protection of the community and to the closely related aim of the defendant’s rehabilitation. I made the order upon the assumption that the regime would be conducted with appropriate flexibility, the conditions being relaxed if the defendant’s conduct justified it, and that there would be no question of restrictions being imposed arbitrarily.

10. [84]

    The State sought an extended supervision order for five years, the maximum period for which provision is made under the Act: s 10(1A)(a). Both Dr Roberts and Dr O’Dea saw this period as desirable from a psychiatric perspective. From that perspective I have no doubt that is so, given the defendant’s history and his diagnosed conditions, especially his Antisocial Personality Disorder. However, I took the view, as I had in other cases, that he might be discouraged from complying with the conditions of his supervision if he faced the prospect of having to do so for so long. I considered that his ability to comply might be enhanced, and his path to rehabilitation better fostered, if a shorter period were imposed. I concluded that the protective and rehabilitative purposes of the Act would be achieved by an order for three years, bearing in mind the court’s power under s 13 to vary or revoke it.