State of New South Wales v Youseff (Preliminary)

HIS HONOUR: The plaintiff moves upon a summons filed 19 August 2020 which seeks the following orders:

In support of the application the plaintiff relies upon an affidavit of Isabel Kallinosis, affirmed 19 August 2020, an affidavit of David Yang, affirmed 9 September 2020, and additional Offender Integrated Management System case notes (OIMS) not otherwise referred to. The principal evidence relied upon by the plaintiff is Exhibit 1K-1 to the affidavit of Ms Kallinosis which has annexed to it the custodial and other records relating to the defendant.

The plaintiff submits that the jurisdictional preconditions to the making of an application (under s 5B of the Act) have all been met; and in particular (on the assumption that they could be proved) the matters alleged in the supporting documentation would satisfy the Court “to a high degree of probability”, that the defendant poses an “unacceptable risk” of committing another “serious violence offence” if not kept under supervision under the Interim Supervision Order.

The plaintiff submits that the following categories of information establish to the necessary standard that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision:

The defendant is aged 36 and will soon turn 37. He was born in Egypt and came to Australia with his family in 1986 when aged three.

The defendant is reported to have had an unhappy childhood, suffering physical abuse at the hands of his father, being bullied at school and being socially isolated.

From age 15, the defendant commenced using cannabis, later amphetamines and heroin and eventually, ice. It is the plaintiff’s contention that there is a close correlation between his substance abuse and his offending.

The plaintiff submitted that the defendant’s criminal history and his response to previous periods of supervision while in the community are matters that are of particular relevance when determining whether the defendant poses an “unacceptable risk”.

The defendant’s violent offending commenced in and around 1998. The defendant was granted bail after being charged with this offending.

The offending involved the defendant with four others in a stolen motor vehicle driving to a service station where the group smashed the lower window of the front door and took property. On 14 December 1999, the defendant was convicted of being conveyed in a stolen motor vehicle and breaking and entering a building with intent to commit a felony.

Also on 14 December 1999, the defendant was convicted of one count of robbery in company and one count of robbery whilst armed with a dangerous weapon. This offending took place on 8 December 1998, when the defendant was part of a group of five young persons who demanded money from a victim. The defendant produced a replica pistol and threatened the victim with it. $120 was removed from the victim’s wallet, together with a silver necklace, a cap and a watch.

The defendant was convicted on 14 December 1999 of one count of larceny, one count of take and drive conveyance without consent of owner, one count of break and enter with intent to commit a felony and one count of having goods in custody reasonably suspected of being stolen.

The facts were that on 14-15 January 1999, the defendant together with a co-offender, stole a Holden commodore, drove it from Blacktown to Nowra, broke into a jewellery shop, smashed display cabinets and took approximately 150 watches (valued at between $50 and $400). Before those convictions, there had been two breaches of bail conditions by the defendant on 17 July 1999 and 12 August 1999.

On 18 January 2000, the defendant was convicted of robbery in company and was placed on an unconditional control order for a period of 6 months. On that occasion, the defendant and another offender approached a passenger, who was travelling on a train, asked the passenger for money and threatened the passenger with physical violence. The passenger handed over his wallet and a key to the lock on his bike.

On 18 January 2000, the defendant was convicted of larceny (less than $2,000), robbery in company, take and drive conveyance and drive whilst unlicensed. The background to those offences was that the defendant with a co-offender forced entry into a vehicle and drove to a service station where the two offenders filled the vehicle with petrol but did not pay for it. The two then attended the National Australia Bank where they jumped the counter and removed a total of $17,810.94 from the cash drawer.

On 18 January 2000, the Children’s Court at Cobham recorded that the defendant had failed to comply with the conditions of his parole in that he had failed to report to Penrith Police Station as required.

On 3 September 2001, the defendant was convicted of larceny and having goods reasonably suspected of being stolen in his personal custody. He received a bond for 6 months for those offences. The goods taken comprised items of clothing from a clothing store.

On 12 June 2002, the defendant’s bail was re-determined after he failed to reside at approved accommodation and failed to comply with the directions of the Department of Juvenile Justice. On 7 January 2003, the defendant was convicted of making a false representation and was sentenced to a 12 month bond.

On 4 March 2003, the defendant was sentenced to his first period of full time imprisonment after being convicted of two counts of robbery in company. The facts were that at 6:30pm on 22 February 2002, the defendant in company with three others (two males and a female) approached two members of the public, Mr O’Regan and Ms Do, who were sitting on a platform at Guilford railway station. A member of the group demanded that Mr O’Regan hand over his mobile telephone. When he refused, one of the males punched him to the left side of his head with a closed fist and took his mobile phone. The group later took a wallet from him, removing a $5 note from it.

While this was happening, the female member of the group demanded that Ms Do hand over her bag and threatened to hit her when she refused. Ms Do gave the woman about $200. The group then went to the station master’s office, where one of the males hit Ms Ang, an employee of the State Rail Authority, with an open palm, pushed her and forced entry into the office and took about $480 in cash. Ms Ang suffered contusions to her lips, chin, right side of her face and left foot as a result. Significantly, this was the first time that the defendant’s offending had involved actual violence.

The defendant was sentenced by Judge Nield. His Honour remarked that the offences were serious. He found that the offence involving Mr O’Regan and Ms Do was opportunistic, but that involving Ms Ang had been planned. His Honour noted that the defendant was subject to bail at the time of the offending. Although the defendant had pleaded guilty, his Honour doubted the sincerity of his expressions of contrition and remorse. His Honour noted that the defendant had learned little from previous punishments. The defendant was sentenced to prison for 3 years and 3 months with a non-parole period of 1 year, commencing 15 May 2004.

On 21 August 2006, the defendant was convicted of the first of a number of domestic violence related offences being one count of aggravated break and enter with intent in company. On that occasion, the defendant with a co-offender, broke into his father’s home and threatened his father’s partner. He was sentenced by the District Court at Campbelltown to a period of imprisonment of 12 months.

On 6 June 2008, the defendant was convicted of one count of destroy or damage property worth less than $2,000, possess restricted substance, common assault, assault occasioning actual bodily harm and drive on road never having been licenced. An Apprehended Domestic Violence Order (ADVO) was made in respect of his partner, Laura Shepherd.

On this occasion, the victim was the defendant’s partner. At around midnight on 22 December 2007, the defendant who was well affected by drugs returned home with a friend. Over the ensuing days arguments occurred between the victim and the defendant, which included the defendant becoming violent by punching walls, stabbing furniture with a knife, headbutting the victim twice and pouring drink over her head. The defendant later apologised to the victim and she returned home with him.

Early on 23 December 2007, the defendant awoke and started yelling at the victim. He commenced headbutting her, pushing her into the bed, slapping her and punching her in the face area. The victim was crying and screaming. The defendant’s mother called police to attend and remove him from the house. He was in fact removed from the house by his father and sister and taken to a railway station. The victim reported the incident to police. The defendant was arrested later that night and was observed to be heavily affected by drugs, acting aggressively, kicking the police dock and screaming at police.

On 6 August 2008, the defendant was convicted of assault officer in execution of duty, destroy or damage property less than $2,000 and common assault. He was sentenced to imprisonment for a total period of 9 months. The facts of the offending were that on 23 December 2007, the defendant attended a bar holding a kitchen knife with a 12cm blade. When the bar manager attempted to escort him from the premises, the defendant raised the knife in a threatening manner. When police later attended, the defendant raised both forearms with clenched fists, striking one of the officers. He then threw a rock at the officers and ran into a nearby unit. He threw knives, cutlery and glass from the kitchen drawers of that unit in the direction of the officers who pursued him to the home unit.

On 24 February 2010, the defendant was convicted of possess knife in a public place and escape police custody. This occurred on 19 July 2009 when police were attempting to place him in a caged truck after arresting him for domestic violence offences that were later withdrawn. On this occasion, the defendant ran away from police down Darlinghurst Road.

On 30 March 2010, a final ADVO was made against the defendant for the protection of his ex-partner, Ms Alessandra Lenoci as well as Mr Peter Lenoci and Mr Lucas Verchiet, arising out of events immediately preceding the defendant’s conviction for escape police custody. The allegations supporting the granting of the ADVO were not established in court and appear to have been withdrawn without a hearing taking place.

On 26 September 2010, the defendant was convicted of common assault and possess an unauthorised pistol. The factual background was that the defendant urinated on the outside fence of a block of units. When two of the occupants of that property confronted him, the defendant produced a black replica pistol and pointed the pistol at one of them.

On 9 November 2011, the defendant was convicted of larceny, destroy or damage property and fail to appear in accordance with a bail undertaking. The background to that conviction was that on 26 October 2011, the defendant took some money from a shop in the Nepean Centre Food Court. He threatened the employees of the shop and security personnel who had pursued him by saying “I have a knife”.

On 17 November 2011, the Penrith Local Court issued a warrant for the defendant’s arrest after he breached bail by failing to report as required.

On 14 March 2012, the defendant was convicted of one count of possess or attempt to possess a prescribed restricted substance and one count of having custody of a knife in a public place. The background to that conviction was that on 25 September 2011, the defendant was found to be in possession of a packet containing some syringes and a knife with a 10cm blade. A few days after the events giving rise to that conviction (30 September 2011), the defendant was again found to have custody of a knife and was again in breach of his bail conditions. On 14 March 2012, he was convicted of this offence.

On 27 November 2012, the defendant was convicted of common assault and possess prohibited drug. A statement of facts recorded that his mother (with whom he was living at the time) noticed him to be behaving erratically. The assault comprised the defendant spitting at his mother.

On 22 October 2013, the Drug Court at Parramatta sentenced the defendant to 10 months imprisonment for larceny. The statement of facts recorded that the defendant (together with another offender) stole some property, including mobile phones, from a number of stores in the Mr Druitt/St Marys area. The defendant was ordered to complete a Drug Court Program.

On 27 March 2014, the defendant was convicted, by the Drug Court at Parramatta of destroying or damaging property of a value less than $2,000. The background facts were that on 14 February 2014, when his mother asked him whether he was going to clean up a mess inside their home, he threw a plate of cheese at her which struck the fridge, damaging it. The defendant slammed the fridge door, breaking a shelf and damaging an ornamental birdcage by throwing it across the lounge room.

On 27 March 2014, the defendant was convicted by the Parramatta Drug Court of escaping from police custody. The factual background was that when police attempted to arrest him for an outstanding warrant, which had been issued by the Drug Court, he ran away from police down a laneway. The warrant was issued after the defendant failed to satisfactorily participate in the Drug Court Program.

On 27 March 2014, Judge Dive of the Drug Court at Parramatta imposed a new sentence because the defendant failed to attend the Drug Court Program that had been imposed by the court. This sentence comprised imprisonment for 10 months with a non-parole period of 6 months.

In his remarks on sentence, Judge Dive recorded that a warrant had issued after the defendant had been struggling to comply with the Drug Court Program. After the defendant was arrested but escaped, his participation in the program was terminated. In his sentence judgment, Judge Dive noted that the Drug Court Program had not been successful and had been terminated while the defendant was still in the first of the three stages of the program. The defendant had managed to complete only five weeks of the three months program. His Honour further noted that the defendant continued to use illicit drugs throughout. His Honour made an ADVO for the protection of the defendant’s mother.

The index offending comprised an act of domestic violence. It was committed on 16 October 2014, at a time when the defendant was on parole for the matters for which he had been sentenced by Judge Dive.

The background to this offending was that on 16 October 2014, the defendant’s ex-partner, Gemma Barker, had been admitted to Nepean Hospital after suffering an overdose. When she returned home, the defendant expressed jealousy at her interactions with a neighbour. He was described as behaving in a “manic, erratic and crazed manner”. The defendant hit Ms Barker to the head and body with a pool cue and with what was described as an “antique Arabic hunting knife”, as well as with his fists.

Ms Barker suffered multiple soft tissue injuries, bruising and bleeding of the brain, a fractured septum and nasal bone, and lacerations to the bowel and spleen, the latter of which required her to undergo an urgent splenectomy.

On 13 November 2015, a final ADVO was made for the protection of Ms Barker.

After a limited trial on the question of whether the defendant’s actions were committed with the intent to cause grievous bodily harm, the defendant was convicted of one count of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW).

The matter came before Hanley SC DCJ on 13 December 2016 for sentence. His Honour sentenced the defendant to a non-parole period of 3 years and 9 months, which was backdated to commence on 17 October 2014. That term was to expire on 16 July 2018. The balance of term was 2 years and 3 months which will expire on 16 October 2020.

His Honour considered that the offending fell within (or perhaps slightly above) the mid-range of objective seriousness. His Honour remarked that the injuries that Ms Barker had suffered were “really serious” and “substantial” and that the victim had been subjected to a “sustained and horrific experience”. His Honour took into account the defendant’s criminal record, noting that it comprised acts of serious personal violence, and held that it disqualified him from any leniency and indicated a need for retribution, deterrence and community protection.

His Honour noted the correlation between the defendant’s drug use and the offending and further noted that “there is a need to protect the community from someone who ingests illegal drugs and conducts himself in such a violent manner”.

His Honour made a guarded assessment of the defendant’s rehabilitation prospects, remarking that the defendant needed to address his issues with drug addiction, anger and hostility control. His Honour found that the defendant had poor prospects of rehabilitation unless he successfully completed the rehabilitation plan that had been proposed by Mr Diment, a consultant psychologist, engaged by the defendant. For that reason, his Honour made a finding of special circumstances noting that while the defendant had been on remand, he had not had access to the rehabilitative programs run by Corrective Services.

The plaintiff submitted that the defendant’s response to his periods in custody had been poor. He did not comply with directions given to him by Juvenile Justice and was verbally and physically aggressive to other detainees and Juvenile Justice staff. As an adult, the defendant had been given a Ei Maximum Security Classification due to his escape history and behavioural issues (Risk Assessment Report).

During this period of custody, there had been 12 institutional misconduct incidents. It was noted that he had a poor work ethic and had his employment terminated on one occasion after allegedly tampering with a first aid cabinet.

It was common ground that the defendant was released to parole on 15 February 2019, i.e. 1 year and 8 months ago. He initially resided in Freedom House, a temporary accommodation service run by the Samaritans.

The plaintiff noted that while on parole, the defendant was convicted of two counts of possessing a prohibited drug and in March 2019, he was found to be in possession of heroin and a capped hypodermic needle.

On 12 March 2019, the defendant was recorded as having violated the rules of Freedom House by having visitors after hours. On 16 May 2019, those supervising the defendant reported that he had not been taking his mental health medications. On 7 August 2019, the defendant checked into detox at St Vincent’s Hospital.

In August 2019, the defendant completed a five day residential detoxification program at a COSP (Community Offender Support Program) facility. He was said to have been rude to staff at the COSP on occasion and to have been late in returning to the COSP. The defendant was discharged from the COSP program on 26 August 2019. He had not secured accommodation at that time. Those supervising him secured him crisis accommodation at an accommodation facility, Teresa House, but the defendant chose to sleep on a train instead.

In or about August 2019, Community Corrections made a report recommending that the defendant’s parole be revoked. The State Parole Authority did not do so, but, on 26 August 2019, wrote to the defendant a letter directing him to abide by the conditions of his parole and any directions of his supervising officers.

In October 2019, the defendant began residing with his mother. His behaviour improved at this time and he participated in a number of EQUIPS programs (which he had to discontinue through no fault of his own).

In April 2020, the defendant was referred to the Enough is Enough program. He was reported as being rude to members of the staff at that service although subsequent engagements were reported to be positive. The defendant has also reported as not taking his prescribed medication because he did not think that he needed it.

The defendant made admissions to police on 30 May 2020 to being a drug user. Police suspected him of being intoxicated by illicit drugs but did not locate any illicit drugs on that occasion.

While in custody, the defendant completed the EQUIPS Addiction Program on 4 July 2018. He was reported to have engaged well in that program. He engaged in but did not complete (through no fault of his own), the EQUIPS Aggression Program (9 April 2019) and EQUIPS Foundation Program (24 February 2020).

The defendant had been referred to, but ultimately did not provide his consent to participate in, the Violent Offenders Treatment Program (VOTP) (as by the time it was offered him, it would have required him to stay in custody for another 6-12 months).

The defendant is presently engaging in the Enough is Enough Program. The defendant had completed other programs but this was many years ago when he was under the supervision of the Department of Juvenile Justice.

At the request of the plaintiff, Ms Pateman, an Associate Senior Psychologist, working in the Serious Offenders Assessment Unit, provided a Risk Assessment Report (RAR) dated 18 March 2020. This report was conducted without an interview with the defendant because he did not provide his consent to be interviewed. The plaintiff submitted that despite this, Ms Pateman's observations and conclusions based on the documentary materials made available to her was valid. Ms Pateman’s conclusion in the RAR were as follows.

She observed that the defendant’s overall response to supervision had been regarded as poor, being marred with non-compliance, substance abuse and reoffending. She considered that the defendant’s most recent period of supervision was marked by “superficial” engagement with parole (by his attending appointments and the like) but that he had been avoidant in relation to “meaningful criminogenic intervention”. She noted that although the defendant appeared to have engaged satisfactorily in the EQUIPS foundation sessions that were made available to him whilst on parole, he continued to present as resistant to support from Community Corrections and other services.

Ms Pateman placed a considerable degree of importance on the defendant’s criminal history. She noted that he had amassed 21 criminal convictions by the age of 18. She placed a particular emphasis on his domestic violence offending as an adult noting that each of his intimate relationships had been “toxic” in nature, that he had been domestically abusive and that three of his ex-partners have each had ADVOs taken out against him.

Ms Pateman observed that the defendant had expressed some remorse for the index offending and the pain his actions had caused the victim. She also noted, however, that he had earlier attributed blame to the victim and had focused unduly on his own circumstances, rather than acknowledging the impact on the victim. She noted that the defendant minimised the drug offences he committed whilst on parole for the index offending.

Ms Pateman noted that the defendant had earlier been assessed as meeting the DSM-IV criteria for Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. Ms Pateman placed considerable emphasis on the defendant’s substance abuse history, noting that he reported first smoking cannabis in his early teens, and thereafter commenced smoking heroin with friends at the age of 15. Ms Pateman concluded that the defendant’s “extensive history of problematic substance use ... appears to be highly correlated with his offending behaviour”.

In relation to the present period of parole, Ms Pateman noted that the defendant did not comply with the rules of the temporary accommodation to which he had been released (testing positive to methamphetamine and having visitors after hours resulting in the letter from the Secretary of the State Parole Authority directing him to comply with the conditions of his parole).

Ms Pateman noted that on 18 December 2019, the defendant was assessed using the Level of Service Inventory Revised (Actuarial Assessment - General offending). This placed him in the high range of risk.

Ms Pateman assessed the defendant using the Violence Risk Scale to assess his dynamic risk factors. His score placed him in the high risk range. Ms Pateman assessed the defendant’s overall risk of violent offending to be high and his risk of general offending as medium.

Ms Pateman noted the defendant’s criminogenic needs as follows:

Ms Pateman concluded that long term behavioural changes, developed through the defendant attaining insight into his entrenched beliefs and the attitudes which caused his offending behaviour would be required before this could be counted as a potential protective factor.

Ms Pateman considered that the defendant’s most likely scenario for future serious violent offending would be in the context of a domestic relationship and be precipitated by a relapse into substance dependence.

A risk management report has been prepared by Ms Kelli Grabham of the Extended Supervision Order Team of Corrective Services NSW, dated 6 May 2020. The plaintiff relied upon the following matters in the RMR:

The preliminary requirements for an ISO are as follows.

Section 5B of the Act provides:

A “serious offence” is defined in s 4 (relevantly for present purposes) to include a “serious violence offence”. That is defined in s 5A(i) as a “serious indictable offence” (which, in turn, means an indictable offence that is punishable for a term of imprisonment of 5 years or more (s 5A(3); Crimes Act (s 4)) that causes, or was committed with intent to cause, grievous bodily harm.

A “supervised offender” is defined in s 5I(2) which relevantly provides:

Section 5I(3) deems a person who has been released to parole (after being sentenced to an offence falling within s 5I(2)) to be a person who is serving a sentence of imprisonment.

The phrase “unacceptable risk” is not defined in the Act. Its meaning is to be determined as a matter of statutory construction, having regard to its context and the objectives of the Act, including its purpose in ensuring the protection of the community (Lynn v State of NSW [2016] NSWCA 57 at [49]-[61]). In particular, as noted by Beazley P at [51], the word “unacceptable” is contextual, requiring parameters to be identified against which the conduct can be measured, even though precisely what those parameters are is not made evident in the Act. A risk that is present to a sufficient degree that the safety and protection of the community cannot be ensured unless an order is made will satisfy the test (at 44], [55]-[58], [128], [148]).

In Lynn v State of NSW, Basten JA stated (at [126]):

In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J summarised the correct approach as follows (at [71]):

The right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not relevant to the determination of the question of “unacceptable risk” (although it is relevant in the event that a final order is made when considering what conditions should be imposed).

The words “high degree of probability” confer a standard of proof that is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]:

Section 9 of the Act provides a list of the matters the Court must consider in determining whether or not to make an extended supervision order. Section 9(2) provides that the safety of the community must be the “paramount consideration”. Other mandatory considerations are listed in s 9(3). Relevantly, these include:

Section 7 provides that, once an application is made, the Court must conduct a preliminary hearing. Section 7(4) provides that if, after the interim hearing, “the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”, the Court must hold a final hearing (and, for this purpose make orders for the appointment of psychiatrists or psychologists (or combination thereof).

Section 10A empowers the Court to make an Interim Supervision Order if it appears that the offender’s current period of custody will expire prior to determination of the application. The test prescribed in s 10A is similar to that in s 7(4) (the Court may make the order if it “appears to the Court” “that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order” (emphasis added)).

These preliminary tests have been described as “not ... stringent” and have been said to be akin to determining a prima facie case in committal proceedings. The Court should proceed on the assumption that the asserted facts in the supporting documentation are proved and then consider whether, on that assumed basis, it is satisfied as to unacceptable risk. The process to follow at the interim stage has also been described as “to look at the allegations and the documentation put before the Court through the lens of the plaintiff’s case and to take them at their highest”.

In addition to those general statements of principle, the consideration of whether to make an Interim Supervision Order does not involve a completely uncritical acceptance of matters placed before the Court by the plaintiff. On that issue, the decided case provide assistance. In State of NSW v Williamson (No 1) [2019] NSWSC 812 Davies J said:

Some further guidance was provided by Fullerton J in State of NSW v Heness (Preliminary) [2019] NSWSC 1710 at [28]-[29] where her Honour said:

The plaintiff submitted that the preliminary jurisdictional requirements in s 5B for bringing this application have been met. In particular:

The plaintiff submitted that taking the matters contained in the supporting documentation at their highest and applying the “not stringent” test applicable at this preliminary stage, the Court should be satisfied, to the requisite standard, that the defendant poses an “unacceptable risk” of committing another serious offence if not kept under supervision.

In support of that proposition, the plaintiff submitted that the following s 9 considerations should be assumed to have been proved:

The plaintiff submitted that the facts set out in the Risk Assessment Report of Ms Pateman should be assumed to have been proved so that the Court has to be satisfied on that assumed basis that the defendant constitutes an unacceptable risk.

The plaintiff submitted that included in those facts were:

The plaintiff submitted that by reference to Ms Grabham’s Risk Management Report, the results of the defendant’s participation in rehabilitation programs, and the likelihood of him not complying with the obligations of an Extended Supervision Order, the Court should find at this preliminary stage that there are no options other than the imposition of an ISO to lessen the risk of the defendant engaging in future violent offending.

The Act is directed to the protection of the community. It is not directed to sanctioning a person. It is not directed at sanctioning a person over their past offending or compliance with supervision. The Act is directed to the risk of a defendant committing serious offences, not offences in general. A high likelihood to commit violent offences is not of itself, sufficient. It is clear that the legislature purposely set a high threshold of satisfaction. The high degree of probability in s 5B(d) requires satisfaction as to the unacceptability of the risk to a higher level than would be the case if the normal civil standard of proof applied.

As set out above, it is accepted that at the preliminary phase the Court assumes that the facts alleged in the supporting documentation are proven. It then applies the statutory requirements to those assumed matters. If the preconditions are satisfied, the Court then determines whether the assumed matters justify the making of an ISO in its discretion. The statutory thresholds applied are no different to those to be applied at a final hearing except that at the final hearing the Court must also determine whether the alleged matters are proven. The preliminary hearing phase is a somewhat different process to a “prima facie case” finding (Rothman J at State of New South Wales v Michael Lidster [2020] NSWSC 275 at [26]).

Although the Court typically gives weight to risk avoidance at the preliminary phase pending final hearing, that is not necessary in this defendant’s case. He is about to complete a 20 month parole period. He has achieved stability with no further violent offending. His case can be distinguished from that of an offender facing release after a long period of incarceration who may initially struggle to remain offence free.

A significant amount of the plaintiff’s evidence concerns historic matters. The defendant’s age and his current circumstances are important when considering these matters in totality. The defendant will soon turn 37. He has struggled with drug use and with his mental health in the past. His last offence of violence was committed on 17 October 2014 when he was aged 31 (the index offence) at which time he entered custody.

In 2018 the defendant successfully completed the 20 session EQUIPS Domestic Abuse program and the 20 session EQUIPS Addiction program. He was considered an active and engaged participant in both programs (Risk Assessment Report [58]-[59]).

The defendant declined an offer of a referral to be assessed for the Violent Offenders Therapeutic Programme (VOTP). That offer was made in July 2018 after he became eligible for release to parole after serving three and a half years imprisonment. It can be inferred from the lateness of the offer that Corrective Services NSW (CSNSW) did not view his participation in the VOTP before release a priority.

On 15 February 2019, the defendant was released to parole after serving 4 years and 4 months imprisonment. He was released subject to the standard conditions of parole set by the State Parole Authority (SPA) (copy annexed). His parole period expires on 16 October 2020.

In the first six to seven months after release (February to September 2019) the defendant struggled to remain abstinent. Regular drug saliva testing shows this was not daily use but involved periodic relapses. These relapses were connected with his historic difficulties with drug use, his initial difficulties adjusting to lawful life back in the community and his difficulties in securing stable accommodation.

Upon release, he initially resided at a residential facility (Freedom House, Wyong) at which it appears other offenders or persons with addiction issues resided. Thereafter, he could not secure stable fixed accommodation. Short term residential accommodation such as Rainbow Lodge, Glebe House or the Matthew Talbot Lodge either had no vacancies or he was ineligible to apply (OIMS 17.7.2019 and 16.8.2019).

The defendant’s difficulties and the support given by CSNSW in this initial period is reflected in the OIMS notes. For example:

Notwithstanding these difficulties, the defendant continued reporting to Community Corrections. He engaged in drug rehabilitation (WHOS) as directed in a genuine attempt to manage his difficulties (attending 16 of 18 days of that program before his arrest on 5 June 2019: OIMS 5.6.2019).

On 5 June 2019, the defendant was charged with two counts of possessing a prohibited drug (methamphetamine and ecstasy). These offences were later dealt with by way of a fine. His parole was not revoked. Community Corrections did not seek more stringent parole conditions at this time.

In August 2019, the defendant attended a detoxification program at Concord Hospital as directed (as a precondition to his entry into the COSP (Community Offenders Support Program) between 12 to 26 August 2019). The COSP was chosen because other accommodation could not be found. It was evident that he struggled and disliked the COSP environment (OIMS 7.8.2019, 11.8.2019 and 12.8.19).

In early October 2019, he commenced living with his mother in Beverly Hills, Sydney. He stabilised once moving into this residence. Apart from one incident, there is no other reported instance of drug use or him returning positive drug swabs from early October 2019 to date. His last positive drug test was returned on 5 September 2019 (benzodiazepines) (OIMS 5.9.2019).

There was an incident recorded on 30 May 2020 when the defendant was spoken to by police. At the time he appeared intoxicated by drugs. No drugs were found on him and he was taken to hospital by ambulance. I am satisfied from the police description that this constituted another episode of a relapse by the defendant into drug use. Apart from that incident, there is no evidence of drug abuse by the defendant since taking up residence with his mother in October 2019.

It is clear from the OIMS notes that the defendant has made considerable progress in rehabilitation since October 2019. The following examples bear out that conclusion:

What emerges from the OIMS reports (which have not been challenged by the plaintiff) is that Community Corrections has continued to provide support for the defendant regardless of his relapses into drug use. Implicit in that support is a recognition that relapses are commonly part of achieving long term abstinence. Accordingly, it can be inferred that this approach has encouraged the defendant to be honest about his relapses and to work with Community Corrections. What appears to have happened is that with the support of Community Corrections, the defendant has stabilised and is now and has been since June 2020 abstaining from drug use.

Realistically, it is difficult to accept that a similar approach would be adopted by the ESO team if an ISO or ESO is made. In my experience any disclosure of a relapse by a person subject to an ISO or ESO is almost certain to result in that person being charged for contravention of the order. That will almost invariably result in the defendant being subject to a sentence of imprisonment. This experience is supported by the statistics provided by the Judicial Information Research System which showed that 93 per cent of those who were subject to an ESO received a prison sentence when they have been charged with the contravention of a condition to which they are subject under an ESO.

It is trite to observe that as a general proposition, repeated returns to custody (an environment rife with violence and drug use) would be detrimental to the defendant’s long term rehabilitation. Such a result would jeopardise the gains which he has made and have the effect of undermining the long term protection of the community.

In carrying out the evaluative task required by the Act, I note that as has been freely conceded by the defendant, there have been lapses on his part into drug use. Given that he has been subject to parole for approximately 20 months, the number of lapses has been modest. By reference to the OIMS it is obvious that significant progress has been made since the defendant’s release to parole in February 2019.

It would appear to be uncontroversial that the following gains have been made by the defendant since his release to parole:

A measure of the defendant’s improvement is demonstrated by the following. At the commencement of his parole, the defendant was assessed by Community Corrections using the LSI-R instrument to be in the “T3/High” risk category (OIMS 8.11.2019). By December 2019, that assessment had been lowered to “medium risk” (Risk Management Report p2). On 2 September 2020, Community Corrections noted “Case plan appropriate, now med low due to efforts of client. Order expires next month (The “med low” is understood to reflect Community Correction’s assessment of the defendant’s risk of general offending to be at the medium to low level) (OIMS 2.9.2020). I infer that the lowering of the LSI-R assessment reflects the progress the defendant has made while on parole.

In considering whether I have been satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, a closer analysis of the defendant’s offending is of assistance. The defendant’s early offences committed between 1999 and 2003, were not domestic violence offences. They consisted of robbery, larceny and dishonesty offences typically committed in company with other males. The offences in 1999-2000 were committed by him as a juvenile. Often the offences were constituted by threatened rather than actual violence. Although criminally liable, the defendant was not specifically identified as the person making a threat in those cases. The 2003 robbery involved actual force with one offender striking the victim with an open palm and pushing her. It should, however, be noted that none of the defendant’s offences since 2006 had involved groups of males or the use of violence to secure money.

In the period 2006-2014, the defendant committed several violent offences including assault occasioning actual bodily harm, assault police and common assaults. The most serious of these offences concerned assaults on partners culminating in the index offence committed on 16 October 2014.

While that analysis is not made to diminish the defendant’s responsibility or make light of the seriousness of the past offending, particularly in relation to the index offence, it does assist in assessing the defendant’s motivation and the likelihood of him committing a future serious offence. What emerges from the analysis is that none of the defendant’s offences constituted “a serious offence”, apart from the index offence. It is common ground that the defendant’s drug use was a material factor in most, if not all, of the offences. The index offence was committed after the defendant had binged on illicit substances and occurred in a short term relationship in which both he and his partner (the victim) were abusing illicit substances. The defendant has not had contact with this victim since he went into custody in October 2014 and has now achieved a measure of abstinence. Importantly, he has not committed a further offence of violence since his release to parole.

Considerable weight was placed on the RAR by the plaintiff. The plaintiff relied upon the assessment made pursuant to the Violence Risk Scale and Ms Pateman’s overall conclusion that the defendant’s response to supervision was poor. Ms Pateman observed that his most recent period of supervision was marked by “superficial” engagement but that there had been no real change in his approach and lack of insight into the seriousness of his offending. The plaintiff relied upon the toxic nature of the domestic relationships between the defendant and his partners resulting in three of them being physically abused, one very seriously. The effect of her assessment was that as of March 2020, the protection of the community required that the defendant be subject to an ESO with strict conditions.

There are, however, a number of difficulties with the RAR. In reaching her conclusions, Ms Pateman was dependent upon the assessment by others in that except for a brief introductory meeting, she had not interviewed the defendant. In addition, her assessment was made in March 2020, approximately seven months ago. There is also a significant lacuna in her analysis in that she appears to have had no regard to the absence of any offending, serious or otherwise, following the defendant’s release to parole. Finally, there were matters included in her report upon which the plaintiff did not rely and it was difficult to know to what extent these had influenced her final assessment.

Those matters were the defendant’s sexual intercourse when aged 14 with a 14 year old female, a detailed history of a domestic violence episode which was eventually withdrawn and a grievous bodily harm offence said to have occurred in prison in relation to which the defendant was acquitted after trial. Of those matters the most important in affecting the weight of Ms Pateman’s opinion is the date of her report and its failure to adequately, if at all, acknowledge any improvement in the defendant’s behaviour and outlook while he was on parole.

There is another difficulty which confronts the plaintiff in this matter. It involves something of a misunderstanding as to how the Act is intended to operate. For example, an ISO or ESO application cannot be made until the last nine months of an offender’s current custody or supervision. Until that time, the offender is to be managed through parole supervision. Against that background, it is reasonable to expect that an offender would be subject to intensive supervision upon his or her initial release and for that intensive supervision to reduce over time subject to the offender’s progress. In the present case, the plaintiff seeks to do the opposite. It has applied one month before the defendant completed his 20 month parole period, for much more intrusive powers and restrictions than those were which have operated during the preceding 20 months. This includes conditions requiring the defendant to comply with scheduling and to submit to electronic monitoring. This is despite the fact that the plaintiff did not seek equivalent conditions when the defendant was released to parole or at any time since then.

Subjecting the defendant to an intensive regime of the kind sought by the plaintiff at this stage almost certainly puts him at significant risk of returning to custody and fails to have any regard to the undoubted advances which he has made in the intervening 20 months. This is a matter which is relevant to the exercise of the Court’s discretion as to whether the making of an ISO is warranted at this stage.

In carrying out the necessary evaluative exercise, and taking into account the supporting documentation, in particular the OIMS reports, and keeping in mind the assumption that the facts alleged in the plaintiff’s supporting documentation are proved, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under strict supervision. In reaching that conclusion, I have not sought to assess the weight of the supporting evidence or to predict the outcome of the proceedings for final orders. What I have sought to do is to take those matters into account in order to determine whether the State has satisfied me to the necessary standard that the assumed facts establish that the defendant poses an unacceptable risk to the community of committing a serious offence if not supervised. Amongst other things, I am not persuaded as to the seriousness of the harm which will ensue in the absence of the protective measures sought by the plaintiff.

In reaching that conclusion, I am aware that there is and there must remain some risk that the defendant will relapse into drug abuse and if he enters into another domestic relationship, engage in serious offending. That risk is inherent whenever an application under the Act is refused. In this case, however, for the reasons I have set out I am not persuaded to a high degree of probability that an unacceptable risk will exist if an ISO is not made.

Accordingly, the orders which I make are: