State of New South Wales v Martin

By summons filed on 18 November 2016, the State of New South Wales (the plaintiff) sought interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) against Gerard Martin (the defendant). On 15 December 2016, Bellew J made an interim detention order (IDO) pursuant to ss 18B and 18C of the Act and appointed Drs O’Dea and Adams to conduct psychiatric examinations of the defendant pursuant to ss 7(4) and 15(4) of the Act and furnish reports to the Court of the results of such examinations.

On 28 December 2016 the defendant was interviewed by Dr O’Dea who prepared a report dated 8 February 2017. Dr Adams interviewed the defendant on 4 and 6 February 2017 and prepared a report dated 14 February 2017. These reports are considered below.

The matter was listed for final hearing before Latham J on 27 February 2017. Her Honour, after having heard all the evidence in the proceedings, adjourned the matter at 12.22pm and requested that the parties get instructions with a view to the matter being resolved by agreement. It was adjourned to 2 March 2017. On that day Ms Hawkins, who appeared for the defendant, informed the Court that she had “firm instructions that Mr Martin is willing to make himself amenable to an extended supervision order, and comply with such an order”. This represented a marked change in the defendant’s attitude and led to his being able to be assessed for residence in a Community Offender Support Program (COSP) facility. Her Honour stood the matter over part-heard for mention on 20 March 2017 to enable that to be done. On 20 March 2017 Latham J directed the parties to file and serve further material. Her Honour was unavailable to conclude the hearing within the time provided for by the Act, which required final orders to be made by 3 May 2017 (being three months from 4 February 2017, being the date of expiry of his sentence: s 18C(2)).

The matter was referred back to the Listing Manager, who did not appreciate that it was part-heard before Latham J, for a hearing date to be allocated. It was given a hearing date of 11 April 2017 and allocated to me for final hearing. I learned shortly after the commencement of the hearing before me that the matter had already been part-heard by Latham J. It was agreed by Mr Hammond, who appeared for the plaintiff, and Ms Hawkins that the matter could proceed before me on the basis of the evidence tendered before Latham J, including the oral evidence of witnesses, which was recorded on transcript. Counsel confirmed that there was no challenge to the credibility of any of those witnesses such as would make that course inappropriate.

The resumed hearing took place before me on 11 April 2017. I note that the defendant was present via audio visual link (AVL) from gaol. However, after the evidence on which the plaintiff relied was identified for the purposes of the transcript and Mr Hammond had commenced his oral submissions, the defendant left the room which had been set up for the AVL. The court officer rang the gaol and spoke to a prison officer who informed him that the defendant did not want to return to the room and did not want to take any further part in the proceedings. I enquired of counsel whether there was any objection to the continuation of the hearing in these circumstances. Both Mr Hammond and Ms Hawkins informed me that there was no objection to the hearing continuing although the defendant had absented himself. Ms Hawkins confirmed that her instructions allowed her to continue to appear on the defendant’s behalf and that she would communicate with him by telephone at the conclusion of the hearing. In these circumstances, the hearing continued and was concluded on 11 April 2017.

On 12 April 2017 I made an order for an extended supervision order (ESO) for a period of 5 years on the conditions annexed to the summons. The reason for making the order before publishing reasons was that suitable accommodation is available for the defendant from 16 April 2017 and I wanted to make sure that he was able to move there on that day, lest delay would cause him to lose the place being held for him there.

All references to legislative provisions are to the Act, except where otherwise stated.

Section 3 of the Act provides:

The legislative purpose of the Act is protective, not punitive. The protective purpose is fundamental: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21]; Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 873 at [31]; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [5] and [44].

Part 1A of the Act deals with supervision and detention of high risk offenders. As the application is made on the basis that the plaintiff is a high risk violent offender it is necessary to address Division 2, which relevantly provides:

As is apparent from the wording of the sections, an ESO or continuing detention order (CDO) can only be made against the defendant if the conditions contained in the provisions are met: namely, the Court may order an ESO if it is satisfied to a high degree of probability that an offender poses an unacceptable risk of committing a serious violence offence if not kept under supervision (s 5E), or a CDO, if satisfied that adequate supervision will not be provided by an ESO (s 5G).

Part 2 makes provision for ESOs. Section 5H provides that the State may apply for an ESO against an offender. Section 5J provides that the State may only make an application for an ESO in respect of a “supervised violent offender”. The defendant falls within the definition of “supervised violent offender” as he was, when the summons was filed, in custody serving a sentence for a serious violence offence, being murder, and the sentence was due to expire within six months of the filing of the summons. Part 3 makes provision for CDOs and relevantly provides that the State may apply for a CDO against a “detained violent offender”: s 13C. The defendant falls within this definition.

Section 9(3) provides that the following are to be taken into account in determining whether to make an ESO (as well as any other matter I consider to be relevant):

Section 17(4) contains a list of matters to be taken into account when determining an application for a CDO or ESO.

Section 10 provides that an ESO may be made for a total of five years. Section 11 provides for the conditions that may be imposed on an ESO. Section 18 provides that a CDO may be made for a total of five years.

These proceedings are civil proceedings and, to the extent to which the Act does not provide otherwise, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings: s 21.

Section 25 provides that the plaintiff may, by written order, require the production of documents that relate to the behaviour, or physical or mental condition, of any offender. Any document produced in answer to an order is admissible in proceedings under this Act.

The plaintiff sought a CDO for a period of one year and, thereafter, an ESO for a period of five years on the conditions annexed to the summons. In the alternative, the plaintiff sought an ESO for a period of five years.

The basis of the plaintiff’s claim for a CDO of one year was expressed in the following terms in the plaintiff’s written submissions of Mr Hammond:

The plaintiff relied on the following evidence:

The defendant was born in 1978. For much of his childhood he lived on the Mission at Wilcannia with his grandmother. He was sexually abused by an adult male health worker when he was about seven years old. He reported the matter to the police and made a statement. The defendant’s grandmother, who was concerned about the effect of the abuse, reported to a doctor that the defendant had nightmares. His behaviour at school was also adversely affected by the abuse.

The defendant began drinking at a young age, with the concurrence and participation of his family. He also smoked cones of marijuana. He was admitted to hospital in April 1999 as a result of what was diagnosed as a drug-induced psychotic episode. He was noted to be aggressive and reported the use of alcohol and “snow cones” earlier that day. He reported persecutory auditory hallucinations. He remained in hospital for two days for the purposes of alcohol withdrawal. He did not experience any further psychotic symptoms or suicidal ideation during that period.

In May 1999 the Health Service reported that he complained of hearing voices and feeling “things creeping all over him”. He reported that voices were telling him to kill. It was noted that he was aggressive and smelled of alcohol. He was assessed at the Broken Hill Base Hospital where his presenting symptoms were noted to be “acute psychosis, suicidal and homicidal ideation”. A diagnosis of self-induced psychosis was made. He was admitted on 31 May 1999 and discharged on 2 June 1999. The principal diagnosis was alcohol dependence and marijuana abuse. He was advised to decrease alcohol and marijuana intake but he said that he did not want any help from the Drug and Alcohol Service or the Mental Health Service in Menindee.

A referral letter dated 1 June 1999 from the visiting psychiatrist and registered nurse recorded alcohol dependence and marijuana abuse. They reported the following history:

His criminal history began in 1999. He committed various summary offences of no particular significance, relating to disruption to public order, when he was intoxicated.

In March 2000 the defendant began an intimate relationship with Kerry Johnson. He assaulted her on four separate occasions, on 12 April 2000, 13 April 2000, 11 May 2000 and 3 August 2000. He was charged and convicted of three counts of assault occasioning actual bodily harm.

The evidence does not include the sentencing remarks, although details of the offences appear from the police facts. However, these assaults were referred to by Barr J when sentencing the defendant for the subsequent murder of Ms Johnson. The following summary of what occurred in the course of these assaults in 2000 is taken from [2]-[3] of Barr J’s remarks on sentence (R v Martin [2002] NSWSC 577):

The defendant was sentenced to a 6-month term of imprisonment which commenced on 5 August 2000 and expired on 4 February 2001. While he was in custody serving the sentence for these assaults, the defendant threatened that he would kill Ms Johnson on his release. According to [13] of the sentencing remarks of Barr J, the defendant made those threats because he:

The events that followed the defendant’s release from custody were described by Barr J in the remarks on sentence as follows:

His Honour also found, at [27]:

The defendant was charged with murder. An indictment was presented in the Supreme Court, which sat for that purpose at Broken Hill.

On the second day of the trial, when Barr J had allowed evidence of the prior assaults on the deceased; and his threats, while in gaol, to kill her when he got out, the defendant changed his plea to guilty.

The sentencing judge referred to the defendant’s history of alcohol abuse as follows:

The defendant was arrested on 5 February 2001 and charged with murder. He remained in custody from 5 February 2001. He was sentenced by Barr J to a term of imprisonment of 16 years with a non-parole period of 12 years. Accordingly, the earliest day he was eligible for release was 4 February 2013. He was initially classified as an A2 Maximum Security inmate and incarcerated at Goulburn.

On 27 May 2008 the defendant was interviewed by the Serious Offenders Review Council (SORC), as a result of which his classification was changed in June 2008 to B Medium. He was reviewed from time to time by SORC, which noted that he did not receive visits from family because of the distance. He was transferred to Wellington Gaol on 2 August 2009 and to Bathurst Gaol on 17 December 2012.

While he was in custody, the defendant was assessed by reference to the Static-99 assessment tool, which is designed to predict, by reference to sex offenders generally, the risk of re-offending. On 3 August 2009 he was assessed as having a score of 4, which put him in the category of medium to high risk. He was assessed again on 21 April 2010 and was given a score of 5, which kept him in the same category. The reason for the difference was that the first assessment was based on his having three or fewer prior sentencing dates (apart from the index offence); whereas the later assessment recorded that he had had four or more.

On 22 April 2010 the defendant was asked to give his consent to being referred to a sex offender programme. The defendant withheld his consent and said, “I am not a sex offender.”

In about 2010 the defendant started working at the print shop in gaol. In 2011 he asked to be transferred to Broken Hill Gaol so that he could be closer to his family but his request was never granted.

At 6.37am on 6 April 2011 the defendant, who was incarcerated at Wellington Gaol, assaulted a female prison officer by grabbing her buttocks. He was charged with assault with an act of indecency and placed on a three-month segregation order. On 2 April 2012 he was sentenced to a fixed term of imprisonment for three months to commence on 5 February 2013 and expire on 4 May 2013. It therefore ran from the expiry of the non-parole period for the sentence which had been imposed for murder.

On 10 August 2011 the defendant filled in a referral form consenting to a sex offender programme. He answered the request to “[b]riefly describe what happened” as follows:

The defendant identified “me and her family” as the persons affected. When asked to identify who or what was responsible for the sexual offending, the defendant said: “was consensual”. He nominated “parole” as his reason for wanting to participate in a sex offender programme. He identified “alcohol” as the issue or problem that he needed to address. When asked what he expected to gain from treatment he answered: “Can’t gain nothing out of it.” He nominated the “Getting SMART” course as the treatment programme he had already undertaken.

On 10 August 2011 the defendant signed a consent for referral to the Violent Offenders Therapeutic Programme (VOTP). In this form, the defendant said that he was seven years old when he first used violence to engage in a “family rivalry” fight with others from another family because it was “how [he was] brought up” and that he came “from a violent upbringing”. He said that he was 21 when he was first arrested for a violent offence and wrote: “fight with partner as she was with other blokes”. The defendant indicated on the form that he had engaged in street fights; violence towards his partner; property destruction; and verbal violence towards family members, custodial staff and the police. He admitted to having used a stick for the purposes of assault. He said his violence is “alcohol related” and that he engages in verbal violence when he feels that he is being lied to. He said that he had not engaged in violence since the murder but had engaged in verbal violence two months ago. When asked to describe the most violent things he had done, he nominated the murder and the assaults occasioning actual bodily harm, which had all been committed when he was 21. He nominated alcohol and that his partner had slept with others as “provoking factors”. On this occasion when asked to describe what happened, he wrote:

He identified the persons affected as “me, her family” and identified “me and alcohol” as being responsible for his violent offending. He identified the issue to be addressed as “anger” and said that he thought he would gain “common sense” from treatment.

On 22 September 2011, Lisa Bernstein, Specialist Psychologist at Corrective Services, determined that, although the defendant met the eligibility criteria for VOTP, he was deemed unsuitable to participate. On 27 September 2011, the defendant was, however, found suitable for Custody Based Intensive Treatment (CUBIT) and was placed on a waiting list. On 14 October 2011 the defendant was offered a place on a CUBIT course. On 17 October 2011 the defendant signed a form to say that he had decided not to participate in CUBIT and refused to provide reasons.

Ms Matsuo was the Director of the Sex and Violent Offenders Therapeutic Programs from October 2010 until January 2014. I note Ms Matsuo’s evidence that the defendant was probably deemed to be unsuitable for VOTP because VOTP was solely for those who committed violent offences outside a domestic context. Ms Matsuo said that after the Act was amended in 2013 to include violent offenders, VOTP was reviewed so as to include offenders who committed violent offences in a domestic context. In July 2016 the defendant was offered a referral to VOTP but he declined to consent to the referral, which was, as a result, abandoned. Ms Matsuo gave oral evidence on 27 February 2017 as to the content of the VOTP course, including with respect to violence in the context of substance abuse.

On 12 September 2012, the defendant was interviewed by SORC again. He said that he did not receive any visits from family but he occasionally rings them. He also said that he does paintings which he sends to his nephews and nieces. On 7 November 2012 SORC recommended that the defendant be transferred from Wellington to Broken Hill. SORC noted the view of Mr Townsend, the Classification Manager of Aboriginal Programs, that a transfer to Broken Hill Gaol might motivate the defendant to undertake programmes and would enable contact with his mother and other family members. This recommendation was not implemented because it was thought that the defendant’s presence at Broken Hill Gaol would give rise to conflict in the centre because of the connection between inmates there and the deceased.

SORC noted that, wherever possible, the defendant has been employed in gaol and has also attended educational courses in Aboriginal Art; Occupational Health and Safety; First Aid; Koori Education; Horticulture; and Vocational and Community Engagement. With the exception of the incident involving the staff member at Bathurst, he was regarded as not presenting management problems. He had been described as a “quiet and polite inmate”.

In its report dated 5 March 2013, SORC advised the State Parole Authority, pursuant to s 197(2)(b) of the Crimes (Administration of Sentences) Act 1999 (NSW), as follows:

On 19 February 2013 a pre-release report was prepared in respect of the defendant as he was shortly to become eligible for release on parole. It was noted that he had been the subject of twelve urinalysis reports, all of which returned negative. Case notes recorded the defendant’s abusive and aggressive behaviour towards custodial staff. It was recorded that he had completed the Getting SMART program; had been found unsuitable for VOTP and had refused to participate in CUBIT or other programs, such as the CALM (Control Anger and Learning to Manage It) program. The report noted that he had attended weekly horticulture classes at TAFE and had also completed a Certificate in Vocational and Community Engagement. He was described as “evasive” when asked whether he wanted to be released on parole. The author of the report noted that he was regarded as an untreated sex offender as he had not done the CUBIT programme. The report concluded:

In reviews dated 22 March 2013 and 3 May 2013 the State Parole Authority decided that the defendant’s release to parole was not appropriate on the ground that he had not participated in appropriate programmes to address his offending behaviour.

On 28 January 2014 the defendant signed a form to indicate that he did not wish to be considered for release on parole. However, on 4 April 2014 the defendant wrote to the State Parole Authority objecting to the refusal of parole.

On 16 November 2015 Sam Ardasinski wrote to Correctional Services and explained that the defendant was being considered for an order under the Act. He emphasised the importance of the defendant doing courses to address his offending behaviour and foreshadowed the possibility of this Court ordering a CDO until he had completed the courses.

On 2 February 2016 the defendant signed a form indicating that he did not wish to be considered for release on parole.

On 1 March 2016 SORC advised the State Parole Authority as follows:

Mr Ardasinski considered the defendant to pose a moderate-high risk of re-offending, largely because of his poor control over alcohol and substance abuse and the impact this has on his propensity for violence. He considered the defendant to be untreated as he has not undertaken a course of sufficient intensity to address his violent risk factors, although he had done the SMART course which was aimed at his substance abuse. Mr Ardasinski reported that he considered that although the defendant demonstrated some insight into how he might avoid violence in the future, he lacked the skills to achieve this and also lacked the motivation to change. Mr Ardasinski also addressed the relative benefits of an ESO and a CDO. Of the former he said that the mitigation of future risk might be enhanced by such an order, which could assist in monitoring his transition to the community and enforce abstention. He said of the latter, that a further period of detention would enable him to undertake the CUBIT course which could address the risk of sexual violence which the defendant continues to pose.

Mr Ardasinski identified the following dynamic risk factors: substance abuse; intimate relationships; hostility towards women; and a violent lifestyle. Mr Ardasinski considered that the defendant’s potential for serious violence would be transferred to any future relationship without intervention (by way of further courses) to address anger, attachment and jealousy. He described the following violent cycle:

Mr Ardasinski postulated the following scenario if the defendant were to be released without supervision:

Mr Ardasinski concluded:

Mr Van Ryn is a Senior Community Corrections Officer with the ESO Team. On 25 May 2016, Mr Van Ryn interviewed the defendant for the purposes of preparing a risk management report. The defendant told him that he wanted to return to Cobar to live with his aunty and cousin. It emerged that he had had no contact with them since his incarceration and was unable to provide contact details. The defendant also told Mr Van Ryn that he would prefer to be subject to a CDO rather than a ESO as he considered that he would have difficulty complying with the conditions of an ESO. Mr Van Ryn set out details of his management strategy if an ESO were to be made. This regime would involve weekly meetings with a view to building rapport with his Departmental Supervising Officer (DSO) and also motivating the defendant to engage with Forensic Psychology Services (FPS) and to prepare schedules with a view to helping the defendant to avoid high-risk situations as well as electronic monitoring and random checks to ensure compliance with schedules and curfews. Mr Van Ryn concluded his risk management report by indicating that the risk management plan would be reviewed every two months and updated as necessary to reflect significant changes to the defendant’s circumstances.

Mr Van Ryn also swore an affidavit on 6 December 2016 in which he deposed to the services and facilities which are available in the Sydney metropolitan area to persons who are subject to an ESO but which are not available elsewhere in New South Wales. Such facilities and services include: electronic monitoring, counselling sessions through FPS, the ESO team itself and the availability of accommodation for recently-released prisoners at the COSP facilities. Ms Rybak also addressed these issues in her affidavit of 15 February 2017

The defendant refused, for a considerable period, to co-operate with efforts by the ESO Team, including Ms Langdon, the Unit Leader, to find post-release accommodation for him. There is considerable evidence about the attempts made by the team. It was not until what was expected to be the final hearing of this application before Latham J on 27 February 2017 that the defendant accepted a referral to COSP or ISC.

However, in her affidavit affirmed on 11 April 2017 Ms Wojciechowski, the Manager of the Campbelltown ISC deposed as to the accommodation available at ISC. It differs from COSP facilities because it offers individualised intervention. She received an accommodation referral form in respect of the defendant on 24 March 2017. Her original assessment was that the defendant was eligible but not suitable for ISC accommodation as he was an untreated violent offender with “undertreated alcohol and other drug issues”. However, Ms Wojciechowski subsequently amended her assessment after discussion with her supervisor, as a result of which the defendant has been assessed as eligible and suitable for residence at the ISC as long as he is willing to comply with the conditions of the ISC, including the curfew and treatment requirements at FPS. She deposed:

As referred to above, Dr O’Dea interviewed the defendant on 28 December 2016. He described his presentation as follows:

Dr O’Dea addressed potential risk factors of being in an intimate relationship and taking drugs or alcohol. He opined that the defendant ought remain totally abstinent from drugs or alcohol in the long term in order to manage and minimise the risk of engaging in further violent offending behaviours. Dr O’Dea considered that there would be a high degree of probability that the defendant would pose a significant risk of committing a further serious violence offence in the community in the long-term without supervision and abstinence from drugs and alcohol. He also considered that the risk could be adequately and appropriately managed in the community under an ESO with the conditions set out in the annexure to the summons filed in these proceedings. He added:

Dr O’Dea considered the risk posed by the defendant was a long-term risk, which was at least of five years duration.

In his oral evidence Dr O’Dea disagreed with the proposition put to him in cross-examination that it would augur well for potential abstinence that he had had a prolonged period of time of abstinence in custody. Dr O’Dea said that he was not confident that, without support and strong supervision, the defendant would be able to remain abstinent from alcohol on his release. Dr O’Dea did not regard the lack of violence in gaol as of particular weight because the violence the defendant had displayed in the past was in relation to women. Dr O’Dea identified alcohol and other drug use as the “central issue” for the defendant and said that if he were to remain abstinent from alcohol and drugs, his risk to the community would be well-managed.

As referred to above, Dr Adams interviewed the defendant in February 2017. They discussed the possibility of a CDO or ESO. Dr Adams recorded the defendant’s response in the following paragraph:

Dr Adams observed that it was reasonable to expect that the defendant would experience problems with professional services and treatment in light of his expressed attitudes. Dr Adams considered that the defendant’s offending behaviour in custody towards the female prison officer and his reluctance to engage in treatment were markers of his underlying attitude towards the index offence. He questioned whether there had been any substantive change in the defendant’s views of his offending conduct during his time in custody. Dr Adams noted that the defendant continued to try to shift responsibility to others, both by blaming the victim for his offending conduct and also, in the course of the interview where he said, in the exchange extracted above, “It’s your fault, not mine”.

Dr Adams considered that his management needs have been well addressed in custody but said that this might “significantly alter” if he is subjected to a CDO, “given his concern about the absence of justice”. He considered that the defendant would pose a “significant risk of committing a further act of serious violence” if released from custody. Dr Adams was concerned that the defendant’s risk could not be adequately managed in the community by reason of his negative attitude to an ESO and his stated intention not to abide by conditions. Of the conditions proposed by the plaintiff, Dr Adams said:

Dr Adams considered the defendant’s risk management needs would be long term and opined that an ESO of five years “could not be considered inappropriate”.

The only purpose for which a CDO was sought by the plaintiff was to ensure that the defendant participated in the two custody-based programmes appropriate to his circumstances: CUBIT and VOTP. A CDO of one year was sought for that purpose. I note that the defendant agreed to undertake VOTP in 2011 and was regarded as eligible but unsuitable for it. He has since refused to consent to a referral to that programme. The defendant has consistently maintained that he ought not have to participate in CUBIT because he is not a sex offender, having been convicted of murder, not sexual assault.

The defendant submitted that the risk posed by the defendant of committing a serious violence offence if released could not be adequately managed by an ESO. Mr Hammond contended that the defendant’s failure to engage in any real treatment in gaol to address his substance abuse and his attitudes to violence, particularly towards women with whom he is in an intimate relationship, meant that the risk could not be sufficiently ameliorated until he had completed custody-based courses in respect of those matters. He identified the two courses as CUBIT and VOTP. I note that there has been some change in the defendant’s position since the plaintiff first applied for a CDO. In particular, he has indicated his preparedness to live at a COSP facility if an ESO were granted, as reflected in Ms Hawkins’ instructions referred to above.

I have three reservations about ordering a CDO in the present case. First, it is foreseeable that the defendant will continue to refuse to engage in CUBIT and VOTP even if a CDO is imposed, having regard to his intransigence in the past. In this event, he will have been incarcerated for a further year to no good purpose. Secondly, Drs Adams and O’Dea do not consider that the risk he poses will be significantly ameliorated by participation in those courses. Thirdly, Dr Adams has referred to the potential for destabilising the defendant considerably if a CDO were imposed.

In my view, for the reasons set out in more detail below, the best way of addressing the risk posed by the defendant to the community is to subject him to an ESO which will manage the risk by the imposition and enforcement of appropriate conditions. If the defendant’s DSO can build good rapport with him and if he is able to settle into the accommodation at ISC, he may be able to remain abstinent from alcohol and drugs and may have a sense of purpose, which was lacking in his youth and has been, to some extent, lacking in gaol. Far from diminishing the risk, the imposition of a CDO for the purposes of requiring him to complete these courses may have the opposite effect and aggravate it, particularly if he feels aggrieved by the continued incarceration. This is not to say that his wishes are by any means determinative, particularly in circumstances where he has expressed contradictory sentiments on the topic. However, the facilities and services available to the defendant through the ESO Team, not least of which being the contributions made by the DSOs, could potentially have a beneficial effect on the defendant and, in turn, protect the public from his violent offending.

In these circumstances I propose to address below only those statutory provisions which relate to ESOs, rather than CDOs.

The defendant meets the definition of “sex offender” in s 4 of the Act, having been sentenced for a number of “serious sex offences”. In these circumstances he is a “high risk sex offender” if I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2). I am satisfied of that matter for the reasons given below.

I shall address each of the matters in s 9(3) in turn, in so far as each is relevant. However, I propose to address safety of the community (s 9(3)(a)) in a compendious way at the end since many of the other factors also concern this matter and are also relevant to the assessment or risk and whether it is “unacceptable”.

I have addressed the reports of Drs Adams and O’Dea above. Their views are that the defendant is a high risk sex offender, whose risk could be managed in the community pursuant to an ESO. They opine that the conditions proposed by the plaintiff are reasonable and appropriate and that, by reason of the long-term nature of the risk posed by the defendant, an ESO of five years is appropriate.

Dr O’Dea said in evidence that the defendant appeared to have limited insight, contrition or remorse as well as limited “ability to draw on personal resilience . . . to stop his behaviours in the past, including substance abuse”.

Ms Matsuo gave evidence before Latham J as to the risks posed by the defendant by reason of the defendant’s failure to have any sustained treatment for substance abuse. She said that although there have been very few instances of violence while in custody this did not provide any real indication of whether he would be able to desist in the community, particularly if he were in a domestic relationship, which she regarded as the situation which posed the greatest risk.

I have referred above to the report of Mr Ardasinski, who considered the defendant to pose a moderate-high risk of re-offending because of alcohol and substance abuse and his underlying tendency to resort to violence towards women with whom he was intimate.

The assessments of the defendant by reference to the Static-99 measure have resulted in an assessment that he has a moderate-high risk of re-offending relative to other violent offenders.

Mr Van Ryn’s report, which has been addressed above, sets out the way in which the defendant can be managed in the community were an ESO to be granted. I note that the facilities and services required are only available in the Sydney metropolitan area but that, if the defendant’s capacity to manage himself and abstain from drugs and alcohol is adjudged to be sufficient, the conditions can be relaxed to permit him to live in the country, where he would prefer to be.

As referred to above, the defendant has steadfastly refused to participate in CUBIT. Although he consented to a referral to VOTP, he was deemed unsuitable and, later, when invited to consent to a referral, he refused. Nonetheless he has undergone the SMART Recovery Programme.

The defendant has not been on parole or subject to an ESO. Accordingly this factor is not relevant in the present case.

The defendant’s criminal history is referred to above. The only matters of real significance occurred between April 2000 and August 2000 when he assaulted Ms Johnson on four occasions, three of which occasioned actual bodily harm. The most serious offence is the index offence of murder, which was committed in February 2001. It is of note that he was only at liberty for a few hours before committing the index offence, after having served a term of six months in custody. To the extent that this offending demonstrates a pattern, it is a pattern of violent offending towards a woman with whom he was in an intimate relationship, which was over by the time of the later assault and murder.

Passages from the remarks on sentence of Barr J have been extracted above. His Honour referred to the defendant’s circumstances of deprivation and alcohol and drug abuse, as well as to the circumstances of his upbringing. These remarks show the longstanding nature of the problems that give rise to the risk the defendant currently poses to the community.

The defendant’s resort to alcohol on the day of his release and his subsequent violent acts with fatal consequences are powerful indications that he deals with conflict with alcohol and substance abuse, sex and violence.

I consider that the risk posed by the defendant to the community, and, in particular, to any woman with whom he is in an intimate domestic relationship, is high. His upbringing, which condoned, if not encouraged, alcohol and substance abuse, as well as violence towards women in a domestic environment, appears to have conditioned his responses to Ms Johnson. There is no reason to suppose that the pattern would not be repeated with any other woman. I do not consider there to be any reasonable grounds to believe that the defendant will be able to remain abstinent from alcohol and drugs without considerable support and assistance. Intoxication by alcohol and drugs appears to disinhibit him, with disastrous consequences for any woman with whom he is intimate. He does not appear to have any real insight into the consequences of his behaviour, or even that it is wrong to attack another person, much less a woman with whom his is intimate.

For the reasons given above I am satisfied that, unless an ESO were ordered, the risk of the defendant committing further violent offences would be an unacceptable one. I am satisfied, on the basis of the evidence as to the long-standing nature of the risk factors and in particular opinions of the Court-appointed experts, that it is appropriate that the ESO run for the maximum duration permitted by the Act of five years.

I have considered the conditions proposed by the plaintiff and taken account of the Court-appointed experts’ opinions about the conditions. I consider them to be both reasonable and appropriate to address and manage the risk posed by the defendant, which would otherwise be unacceptable.

On 12 April 2017 I made the following orders: