State of New South Wales v Peters (Preliminary)

1. [1]

   The State of NSW, by Summons filed on 15 December 2021, seeks interim orders and final relief under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant Damien Anthony Peters. The final relief sought by the State comprises a continuing detention order (CDO) of 1 year followed by a 5-year extended supervision order (ESO) and in the alternative, a 5-year ESO.

2. [2]

   The interim orders sought at this preliminary hearing comprise mandating psychiatric and psychological examinations (under s 7(4) or s 15(4) of the Act) and that the defendant be detained for a 28 day period under an interim detention order (IDO) or (the less favoured alternative), a 28 day interim supervision order (ISO).

3. [3]

   I have been assisted by cogent and focused written submissions from counsel for both parties. These submissions, and the concessions within the written submissions of the defendant regarding the statutory prerequisites for the making of such orders, have directed focus to the key issue for determination at this preliminary stage and that is whether the Court should impose an IDO, as sought by the State or an ISO as argued for by the defendant.

4. [4]

   For the reasons that follow, I am satisfied that an IDO should be made.

Background

1. [5]

   The defendant is 53 years old and is currently serving the last 7 months of a 21-year sentence for the murder of two men, Tereaupii Akai and Bevan Frost eight months apart in 2001. Also taken into account was six offences of obtaining money by deception where the defendant took money from Mr Akai’s bank accounts after killing him.

2. [6]

   The defendant was born in 1967 and finished school after completing year 10 twice. He seems to have had a complex relationship with his father, whom he says bullied and abused him. His mother died of cancer when he was 18-19 years old and he was traumatised by this. He left home soon after this and apparently did not have any further contact with his father until after the murder charges. There is scant detail regarding employment. There was to be a restaurant apprenticeship early on which did not continue due to long hours and poor pay. The defendant told Mr Ardasinski in 2013 that he had about 10 different jobs as a store person, labourer and kitchen hand and that he was unemployed for periods between jobs. From 1998 he was supported by a disability pension due to his HIV diagnosis.

3. [7]

   There was drug use from about 18-19 years old, starting with cannabis and progressing to amphetamine use as the drug of choice. There was an admission to Odyssey House Drug Rehab Centre after a period of imprisonment for breaking into a pharmacy and stealing Rohypnol. He told Dr Skinner in 2002 that he had “dabbled” in heroin but was not dependant on it and used Valium and Xanax for mood, as well as testosterone (probably prescribed for his HIV side effects) and steroids for body building. He also took Prozac 80mg daily, noted by Dr Skinner to be above the recommended dose.

4. [8]

   About the time of Mr Akai’s murder, the defendant said he was using 250mg of testosterone, marijuana, methadone 90mg daily and valium as well as Ice (methamphetamine).

5. [9]

   Around the time of the murder of Mr Frost, the defendant said he was using Ice and other drugs to cope with Mr Frost’s sexual demands, including “handfuls of Xanax”.

6. [10]

   The defendant has HIV (diagnosed in 1998) and Hepatitis C. He has at different times been prescribed benzodiazepines and anti-depressants for mood difficulties. There is some debate about whether the defendant has or had any psychiatric disorder. He had long periods of depression especially after the HIV diagnosis. Post the murders, some experts have diagnosed adjustment disorder with depressed mood, substance abuse disorder and personality disorder with borderline traits.

7. [11]

   At the sentencing hearing he gave evidence of a history of having been emotionally and physically abused by his father and that he feared him and that his father had cut off contact as well as cutting him off from contact with his three older sisters.

8. [12]

   The defendant has a relatively minor criminal history separate to the murder convictions. He was fined for possession of cannabis in 1988. In 1992 he was sentenced to the rising of the Court for three break enter and steal offences and some related offending. He was given a bond at that time for another stealing offence. In 1995 he was placed on a recognisance for 3 years and required to attend alcohol counselling and enter an accommodation program. In 1998 there were further recognisances for stealing from a dwelling and breach of bail. At this point he received a prison sentence of 3 months for break and enter and steal and was sentenced also at this time to the rising of the Court for resist arrest and possession of a prohibited drug.

9. [13]

   The only violence offence apart from the murders was an assault occasioning actual bodily harm in 1998 for which he was fined. The victim was Mr Akai.

10. [14]

    He has had a relatively uneventful custodial period and has been in a trusted “sweeper” position for some years. There have been no custodial violence offences, but a number of “refuse urine sample” charges and four failed urine samples in 2017 where a drug, (amphetamine), was detected. In October 2018 he was found in possession of buprenorphine and buprenorphine was detected in a drug swab at that time.

The index offending

1. [15]

   The circumstances of the murders and the discovery of them were outlined in the sentencing judgment of Wood CJ at CL on 20 December 2002:

Three failed releases to parole

1. [16]

   The non-parole component of the defendant’s sentence for the murders of the two men expired on 10 September 2014. He has been released to parole on three separate occasions, but each time was returned to custody because of breaches of parole.

2. [17]

   The first release in November 2016 was the most successful in that he was able to remain in the community for 16 months until a combination of drug use, destruction of his monitoring bracelet and a failure to attend an appointment with his psychologist led to revocation of parole in March 2018. There had been multiple earlier breaches during 2017, including ongoing drug and alcohol use, tampering with the monitoring device and incidents of aggression, including a threat to kill his father conveyed to a cousin in November 2017.

3. [18]

   The next release in July 2018 was very short – 4 days – and parole was revoked due to intimidatory behaviour with his community corrections officer including a threat that if the officer did not do what he wanted, he would slit his own throat.

4. [19]

   The defendant was again released in December 2018, but parole was revoked 4 months later due to substance use, deviating from his schedule of movements and removing his monitoring bracelet. He was returned to custody on 3 May 2019 and has remained in custody since.

5. [20]

   I was informed that the defendant’s case was to be listed before a private meeting of the State Parole Authority (“SPA”) on Friday 11 February 2022, the day after this hearing.

6. [21]

   The interaction of parole decisions and the operation of this Act was appropriately set out in the defendant’s written submissions as follows:

7. [22]

   It was common ground between the parties that the Court must make its own decision under the Act, independent of any concerns or considerations as to what the SPA may decide. That is the approach I have taken in determining this application.

The evidence

1. [23]

   The plaintiff relied upon two affidavits of Lucy Nichols, Solicitor, dated 15 December 2021 and 7 February 2022 and a volume of material addressing s 17(4) and s 9(3) factors. The later affidavit included extracts from recent case notes that revealed, in my view, some ongoing attitudinal problems that underpin risk that have also featured in reports prepared by psychologists and psychiatrists who have reviewed the defendant, particularly more recently.

2. [24]

   The defendant relied upon an affidavit of Karen Espiner, Solicitor, dated 7 February 2022 providing some information regarding the RUSH (Real Understanding of Self Help) program currently being undertaken by the defendant as well as a Corrective Services protocol which discusses the impact of COVID-19 restrictions on programs in custody, including group size limits, delays and problems of that type.

Operation of the Act and summary of the defendant’s position on the interim orders

1. [25]

   First the Court needs to be satisfied that the statutory pre-conditions s 5C(a) to (d) of the Act are satisfied. These are first, that the defendant is an offender serving a sentence of imprisonment for a serious offence, second, that he is a “detained offender” and third, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if not kept in detention (or under supervision) under the order.

2. [26]

   If so satisfied, the Court must make an order appointing two experts to assess the defendant: s 15(4). The Court must then determine whether to impose an IDO or an ISO or neither. If the Court imposes an ISO, the Court must impose such conditions as are appropriate: s 11.

3. [27]

   The purpose of the Act is protective, the primary object being to ensure the safety and protection of the community. Another object – obviously enough a secondary one – is to encourage offenders to undertake rehabilitation.

4. [28]

   In his written submissions, the defendant asserted that the risk of committing a violence offence was rated only as moderate, that his risk is “likely to be able to be managed in the community” according to Mr Ardasinski who reviewed him in 2021 as well as in 2013, that “over-treatment” should be avoided, that his behaviour in custody has been good and any offences were not relating to violence, that he has done many programs in custody, and that the proposed 57 conditions of the ISO, about which no issue is taken, will ameliorate any risk to an acceptable level.

The nature of a preliminary hearing

1. [29]

   The purpose of and processes entailed in a preliminary hearing were appropriately set out in the State’s written submissions as follows:

2. [30]

   Whilst some issue was initially taken in the defendant’s written submissions regarding the role of opinions of experts in the context of preliminary hearings, it is clear in my view that at this stage, the Court does not assess, weigh, evaluate, accept or reject the expert opinions, but must take them as the factual expression of assessments that have been made at those times of matters relevant to the defendant’s risk.

Principles for the evaluative task in s 5C(d) – “unacceptable risk”

1. [31]

   These principles have been collected and accurately and usefully summarised in the plaintiff’s written submissions as follows:

Relevant statutory considerations in determining whether to make an ISO or IDO (s 9(3) and s17(4)) of the Act

1. [32]

   As noted above, in determining whether to make a CDO or ESO under the Act, the safety of the community must be the paramount consideration of the Court: s 17(2). Obviously that mandatory consideration applies equally to interim orders.

2. [33]

   Section 17(4) of the Act (for a CDO) and s 9(3) (for an ESO), set out the matters to which the Court must have regard when determining whether the defendant presents as an unacceptable risk if not kept under supervision (or detention) under the order.

3. [34]

   The statutory considerations relevant to the evidence tendered on this preliminary application here are:

Evidence in the supporting documentation of the matters required to be considered under s 9(3) / s 17(4)

1. [35]

   This history is set out at [12] and [13] of this judgment. There is little of significance in the prior criminal history other than that it featured drug use as well as offending relating to obtaining drugs. There was one previous conviction in 1998 for assaulting one of the men he murdered. An assertion was made at the sentencing hearing that that relationship was the subject of violence on the part of both the defendant and Mr Akai.

2. [36]

   The murders which comprise the index offending were horrific, sudden, violent and macabre. The lack of empathy and coldness with which the defendant conducted the dismemberment of each man and the chilling way he discussed it with his friend that led to police involvement. Whilst these crimes were committed 20 years ago, the ongoing victim blaming and transference of responsibility are important matters when considering current risk.

3. [37]

   The sentencing judge took the view that the defendant had a reduced criminality given the evidence of emotional and physical abuse caused to him during the relationship with each man, as well as his underlying personality disorder. His Honour made the following comments and findings:

4. [38]

   His Honour concluded that were it not for those matters, a life sentence for the murders was “a real possibility”. His Honour also concluded that there had been significant progress towards rehabilitation while in custody and some reconciliation with family and a wish to be drug free which would require “encouragement through long-term supervision on parole”.

5. [39]

   This has been a significant issue. The defendant has been non-compliant with requirements of parole causing revocation of parole three times. He was given multiple chances before parole was revoked, particularly during the first release to parole. Constantly blaming others for this – in particular Corrections staff – is an ongoing feature of his interactions with and reports to psychological/psychiatric and other assessors.

6. [40]

   Whilst it is true that the defendant did has not breach parole by violently offending, breaches include drug use, removal of his monitoring device together with refusing to comply with his movement schedule and aggression to corrections staff.

7. [41]

   The defendant has engaged in the EQUIPs program modules addressing drug and alcohol use and domestic violence. He has however repeatedly refused to complete the VOTP (Violent Offenders Therapeutic Program) which he has been offered four times in the last four years, offering various excuses including that he did not want to be transferred to another correctional facility to complete the course and did not want to have to do a course with sex offenders whom he sees as “manipulative”, and that he prefers to remain in the mainstream where “men are men”.

8. [42]

   The defendant is now completing the RUSH Program which if one adopts a cynical view, has been engaged in recognising his prospects of release on parole and avoiding an IDO would be better if he attended. Having said that, there is no evidence he is doing anything other than engaging appropriately in that program although no reports are yet available and it has only been proceeding for a week or two.

9. [43]

   Three psychiatrists assessed the defendant in the context of sentencing in 2001 and 2002. There was no particular focus in those assessments on the likelihood of committing a further serious offence, although each offered a view on the question of whether the defendant had a mental illness or disorder.

10. [44]

    Dr Ellard made a diagnosis of borderline personality disorder. Dr Skinner made a diagnosis of substance abuse disorder in remission and the possibility of an underlying personality disorder that was not evident at the time of the assessment. She concluded that it was essential that he remain abstinent from drugs and avoid abusive relationships. Dr Nielssen diagnosed adjustment disorder with depression in partial remission, substance abuse disorder and personality disorder with borderline traits. He also noted that “… depressed mood in a person with Mr Peters’ personality vulnerabilities is likely to have substantially affected his perception of the events and his capacity for self-control”.

11. [45]

    In 2013 Mr Ardasinski and Ms Delbaere, both psychologists, prepared a report for the Special Offenders Review Committee. They noted that his risk of violent offending was assessed as high in 2006 and when they reassessed him in 2013, it was moderate. In terms of substance use he was noted to have said that he “will stop when the time is right” and that he has “taken responsibility for his drug use” and that it is “his choice”. Identified risk factors and treatment targets were listed as emotional control, substance abuse, stability of relationships, cognitive distortions and a clear violence cycle. Poor work ethic and impulsivity and lack of goals were also noted as was criminal personality and criminal attitudes.

12. [46]

    In November 2015 Ms Luketic and Ms Langton, both psychologists, assessed the defendant as being in the “moderate” risk range for future violent offending. They noted rudimentary insight into his offending and limited assessment of his own dynamic risk factors and that he engaged in victim- blaming, criticising others and externalising blame more generally. They identified specific risk as relationship(s) with an older male where there is a perception of exploitation or rejection.

13. [47]

    In 2016 the defendant was assessed by Dr Chew, psychiatrist, who concluded that the defendant has a Cluster B Spectrum Personality with features of affective instability, intense relationships, impulsivity, intense rage and possible psychopathy. Dr Chew concluded that the defendant may also have a mood disorder. Dr Chew noted historical risk factors for violence and the need to remain abstinent from any illicit drugs which will in turn reduce the risk of violence and the risk of developing mood episodes. Dr Chew noted that relationships need to be carefully monitored.

14. [48]

    In November 2018 psychologists Gubarevski and O’Neill assessed the defendant at high risk of violent re-offending. They recommended he undertake VOTP which he refused stating that “violence is no longer a problem” for him and that he has not reoffended or used violence which “proves that (he) is not violent any more”. His drug use on parole was noted. The report writers recorded concerns regarding the way the defendant minimised his increasingly aggressive behaviour in the community when he was on parole, his lack of insight into this and his blaming others for it.

15. [49]

    His current assessment of risk of committing further violent offences was assessed as within the moderate range in 2017, and in the high range under the HCR-20 administered in 2018. The risk factors of substance abuse, relationship dependence, fluctuating emotional control and mental health problems – in particular frequent bouts of depression but with limited insight –, limited insight into violence, cognitive distortions, limited community support, withdrawal and isolation, impulsivity, poor work ethic and parasitic lifestyle where he expects others to support him, signs of psychopathy and the lack of remorse or empathy for his offending. Superficial engagement, deceitfulness and poor cooperation with supervision and treatment particularly while on parole were all still present concerns.

16. [50]

    Risk scenarios were identified as where the defendant is in an intimate relationship but feels exploited or abused or support is withdrawn as he will then be unable to deal with his emotions, will likely use drugs and/or alcohol, become angry and violent and this could involve weapon use. This was described as a potentially lethal risk.

17. [51]

    Dr Elliott, psychiatrist, assessed the defendant in August 2019. He noted narcissistic features and that the defendant has personality pathology which is, by its nature, enduring and entrenched, and that he must remain abstinent from all substances because a relapse into substance use “will exacerbate all of the maladaptive features of his personality”.

18. [52]

    In his report dated October 2021 Mr Ardasinski noted the current risk assessment tool indicated that the defendant posed a moderate risk of violent re-offending. He proposed some risk management strategies in his 2021 report that could be deployed including referral to a community-based psychologist, scrutiny of social contacts and victim safety planning within any intimate relationships, unannounced home visits and drug swabs, electronic monitoring equipment, movement schedules and nightly curfew, although he noted that monitoring and a curfew will not do anything to guard against the risks which are greatest within the home situation based on the history of the offending.

19. [53]

    There are multiple reports in the tendered material dealing with the difficulties encountered by Corrective Services staff in managing the defendant in the community. A troubling feature is transference of blame to Corrections staff for his own breaches and behaviours and anger when things do not go his way.

20. [54]

    In the Risk Management Report prepared by Mike Glover of Community Corrections ESO Team dated 19 November 2021, ongoing risk factors from Mr Ardasinski’s report were noted to include – substance abuse, difficulties with stability of relationships with significant others, emotional control, sexuality issues, mental health instability, violence cycle, cognitive dissonance, impulsivity, poor work ethic and lack of goals. Mr Glover proposed parameters for supervision which are referred in the proposed conditions.

21. [55]

    The RUSH course was recommended as targeted therapy that may well contribute to reduction in the likelihood of reoffending. It is based on Dialectical Behaviour therapy principles which it is said to have been found to help prepare offenders for more involved forms of group treatment. It is only available in custody. The defendant has been attending this course over the last week or two and indicated via his solicitor that he preferred to attend this course rather than attend the hearing of this HRO application. This course was recommended as an alternative to VOTP which the defendant continues to refuse to attend.

22. [56]

    I consider this to be a significant issue. As demonstrated in the past in the three periods on parole, the defendant seems to be selective with what requirements he will meet and when. He has limited if any insight into risks associated with his drug use and no demonstrated insight into his offending for which he continues to blame his victims. I consider it is almost inevitable he will take drugs to manage his moods, refuse to comply with requirements when it suits him and remove his monitoring device if he feels the monitoring is intrusive.

Decision – Unacceptable risk – an order will be made

1. [57]

   I have concluded that the supporting documentation would, if proved, justify the making of a CDO or ESO. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious violence offence if not kept under supervision under a CDO or ESO.

2. [58]

   The index offending involved sudden, violent use of an available weapon in the home. Both murders entailed the gruesome dismemberment of men with whom the defendant lived. He admitted that he dismembered them and flushed parts of Mr Akai into the toilet and disposed of other parts of him in rubbish bins to get rid of evidence that he had killed him. Not as much progress had been made with Mr Frost’s body at the time the defendant’s murder of Mr Frost was discovered eight months after he killed Mr Akai.

3. [59]

   He has been assessed as in the moderate to high risk category for violent reoffending, although I acknowledge the very significant limitations around the risk assessment tools utilised to date.

4. [60]

   He has a personality disorder with psychopathic traits and has no insight into his mental health issues.

5. [61]

   He has demonstrated on parole that he would take drugs and use alcohol to manage stress, anxiety and depression. He downplays the relevance and role of his drug use. He is not abstinent, even in custody. On parole he acknowledged using cannabis and amphetamines turning up drug intoxicated and agitated despite drug use being in breach of his parole. He is a risk to the community because he does not acknowledge, understand or take responsibility for the impact his drug use has on his violence cycle, despite his narcissistic assertions and pretences to the contrary.

6. [62]

   I am satisfied that the risk the defendant presents of committing a serious violence offence is unacceptable in that the seriousness of the potential harm is high, given the defendant’s proven capacity for extreme violence, which is likely to be impulsive and sudden, and likely committed in an unobserved situation such as a home or domestic situation where a seemingly peaceful scenario suddenly turns due to some perceived slight or abuse.

IDO or ISO?

1. [63]

   The plaintiff submitted that all the matters that underpin why an order should be made militate towards an IDO rather than an ISO. The proven failure to cooperate with parole requirements, conduct in custody indicating that drug use continues, the lack of cooperation with recommendations for programs in custody, the current risk reports, and the background reports that indicate underlying risk, in particular his personality disorder with psychopathic traits.

2. [64]

   The defendant argued that the defendant’s level of risk is “much reduced”, he has an excellent custodial record with no violence, he has engaged in treatment including psychological treatment as well as relevant programs, there is a lack of utility in the current RUSH program and Mr Ardasinski has specifically recognised that conditions of the proposed ESO are able to satisfactorily manage risk.

3. [65]

   Secondarily it was argued that other factors, namely the defendant’s HIV status, the prevalence of COVID-19 and its potential to interrupt programs and activities in custody, and the effect of institutionalisation on the plaintiff are other considerations I should take into account in favour of an ISO.

Decision

1. [66]

   I am not persuaded the secondary factors are of any particular relevance. There is no evidence that the defendant’s HIV cannot be appropriately managed in custody. Nor is there anything other than generalised evidence about theoretical interruptions to programs if they become COVID-19 affected.

2. [67]

   Institutionalisation is an unfortunate consequence of the sentence imposed for the very serious index offending and the opportunities for parole that the defendant chose to squander.

3. [68]

   Safety and protection of the community is the paramount consideration under the Act and in my view that is met at this stage by an IDO, not an ISO.

4. [69]

   Making such an order based on the available evidence at this stage in no way pre-determines the final outcome which will be a matter for the judge at the final hearing based on the evidence then available. That evidence will by then inevitably include the reports of the two Court-appointed experts and reports as to progress made by the defendant in the RUSH program.

Orders:

1. [70]

   I make the following orders: