State of New South Wales v Kaiser (Preliminary)

1. [1]

   HIS HONOUR: By an amended summons filed on 5 December 2018 (“the amended summons”), the State of New South Wales (“the State”) sought, by way of final relief, an order pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that Brian Andrew Kaiser, the defendant, be subject to an extended supervision order for a period of 3 years from the date of the order upon conditions set out in a Schedule to the amended summons.

2. [2]

   The State did not seek an interim supervision order under Div 3 of the Act. Rather, in a preliminary hearing, the State sought an order pursuant to s 7(4) of the Act ordering the appointment of one psychiatrist and one psychologist, as agreed between the parties, to conduct separate examinations of the defendant and to furnish reports to the Court together with a program for final hearing.

3. [3]

   This judgment concerns the determination of that application for interim relief.

4. [4]

   In order to grant that application, the Court must be satisfied that the matters alleged in the supporting documentation (in this case, Ex 1 in the proceedings) would, if proved, justify the making of an extended supervision order. If that threshold is crossed, this Court must make the orders sought by the State in the preliminary hearing.

5. [5]

   Pseudonyms were used in lieu of co-offenders and victims’ names in the submissions of the parties and I shall adopt the same approach in this judgment.

Preliminary hearing

1. [6]

   In State of New South Wales v Lynn [2013] NSWSC 1346, Beech-Jones J considered a predecessor to s 7(4) at [17]:

2. [7]

   The task of the Court at the preliminary hearing stage is akin to a prima facie case test: State of New South Wales v Manners [2008] NSWSC 1242 (“Manners”) at [8]-[9] and State of New South Wales v Reay [2014] NSWSC 1362 at [29] (per Button J).

3. [8]

   In State of NSW v Sancar [2016] NSWSC 867 Garling J said this about the nature of the task before the Court (at [74]):

4. [9]

   The Court, however, is not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of New South Wales v Hampton [2018] NSWSC 360, Lonergan J said at [40]:

5. [10]

   It is nonetheless appropriate to give weight to risk avoidance at this juncture: Attorney General for New South Wales v Winter [2007] NSWSC 611 at [7] per Bell J. The Court will be best placed to more closely assess the defendant’s risk upon receipt of the expert opinions prepared pursuant to s 7(4).

Objectives

1. [11]

   The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

Preconditions

1. [12]

   Section 5B of the Act is in the following terms:

2. [13]

   There is no dispute that the first three pre-conditions were met in the present matter. That concession was well made for the following reasons:

   1. (1)

      The defendant is an “offender” because he is over the age of 18 years and has previously served full-time imprisonment for a “serious offence” (namely, manslaughter). The defendant pleaded guilty to the manslaughter of V5 on 6 July 2007 and was sentenced on 29 November 2007 by Barr J in this Court to a non-parole period of 8 years and 2 months commencing on 29 July 2007 and a balance of term of 2 years and 9 months to expire on 28 June 2018 (“the index offence”).

   2. (2)

      The defendant is a “supervised offender” as he was serving a full-time sentence of imprisonment for the “serious offence” at the time the summons was filed on 17 May 2018 (noting that the applicant was on parole at the time) (see s 5I(2)(a)). His sentence for the offence of manslaughter expired on 28 June 2018.

   3. (3)

      The offence of manslaughter is a “serious offence” for the following reasons:

3. [14]

   The application for the making of an extended supervision order against the defendant is made in accordance with s 5I.

4. [15]

   The central issue in these preliminary proceedings was whether the condition in s 5B(d) was met on the supporting documentation before the Court. There was no issue that, if the Court reached the requisite degree of satisfaction under that subsection, the Court should be satisfied for the purposes of s 7(4) that the supporting documentation would justify, if proved, the making of an extended supervision order and, accordingly, orders must then be made under that provision.

Unacceptable risk

1. [16]

   The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk sex offender” as existed prior to the 6 December 2017 amendment to the Act: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (see Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60]).

2. [17]

   As to the relevant principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [34]. By way of emphasis or elaboration, two observations may be made.

3. [18]

   First, there may be instances when a person is held to pose an unacceptable risk even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely consequences to a victim if particular offending occurs (cf. Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43]).

4. [19]

   Secondly, I accept the passage of the judgment of N Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128] adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (“Simcock”) as follows:

FACTUAL BACKGROUND

1. [20]

   The defendant is currently 47 years of age. He is the youngest of six children and grew up in a supportive environment where he lived with his parents and his two brothers. He reported being “badly affected” after witnessing the death his middle brother (firearm discharge) whilst he was a child.

2. [21]

   The defendant completed year 10 and undertook an apprenticeship thereafter in sheet metal. He later worked as a truck driver before entering custody. He reportedly experienced no behavioural difficulties in childhood and had stable employment until his late 20s.

3. [22]

   The defendant commenced using cannabis when he was 18 years of age. He was admitted for approximately 1 week to the James Fletcher Hospital in 1995 with cannabis-induced psychosis (“paranoid delusions secondary to marijuana” with a “hypomanic presentation”) then aged 23 years. In 1996, he developed a depressive illness that was unresponsive to three different antidepressants but did respond to electro-convulsive therapy.

4. [23]

   The defendant began using amphetamines on a daily basis in his early thirties and was dependent on that substance at the time of the index offence in 2006. He has also reported using methamphetamines.

AVOs

1. [24]

   The defendant committed his first offences on 16 July 2000, namely two counts of contravening an apprehended domestic violence order (“AVO”).

2. [25]

   The victim in that matter, V6, commenced a relationship with the defendant in about April 1999 which lasted about 6 months. The relationship ended in the latter part of 1999 owing to defendant making numerous abusive phone calls to her at her home and workplace. She approached police in October 1999 about the abuse and a 12 month domestic violence order was made prohibiting him having direct contact with her.

3. [26]

   On 11 January 2000, the victim had a brick thrown through her bedroom window on which was written offensive comments and then received a phone call the next day from someone stating “You’ll pay for my pain slut”. Days later the word “slut” was scratched onto on her car’s roof. No charges were laid for these acts.

4. [27]

   Later in January 2000, the victim moved home for the purposes of avoiding the defendant. She subsequently received flowers delivered to her and unsigned notes on her car stating that the author wanted to renew their relationship.

5. [28]

   On 16 July 2000, the victim was with her friend walking along a foreshore in Newcastle when she passed the defendant, who was sitting on a wall. The defendant said “Hello [V6], talk to me”. She ignored him and the defendant later rode his bike back and forth past her in the mall area. This was the first charge.

6. [29]

   Later that same day the victim walked past her front door and found a letter on the screen door that included the statement “Dear [V6], Please talk to me. Seeing you today brought such a wave of emotions back. I regret everything I’ve done and said and all the harm I’ve done to you, but also to Caleb, Jail and your Mum. Please forgive me…”. This was the second charge.

7. [30]

   Those offences were found proven but otherwise dismissed without recording a conviction at the Newcastle Local Court on 23 October 2000.

Stalk or intimidate

1. [31]

   The AVO protecting V6 expired on 8 November 2000. On 6 August 2001, the defendant attended V6’s home uninvited whilst she was with her boyfriend. V6 had not had contact with the defendant since July 2000 and had again relocated and changed her employment in an attempt to avoid him.

2. [32]

   The defendant stated he found her home by following her boyfriend’s car and that “I just want to be friends. I don’t want any trouble”. When the victim refused and stated that she wished he was “dead”, he stated “You shouldn’t say that [V6] because that’s what is going to happen to you now”.

3. [33]

   Some weeks later she received an envelope in her letter box that read on the back “Will you be my wife? Sender BAK Please 0408903004 anytime Babe”. The envelope contained a card with a handwritten notation “To my Nemesis and one true love with lots of love always Brian” and “Come on over P.S. By the way I’m still crazy about you Babe till your in my arms in love, peace and harmony love Brian”.

4. [34]

   The defendant made admissions to the police about the contact and stated he intended to speak to the victim to resolve the feelings he had for her for the preceding two years. He also stated he had followed the victim’s boyfriend to learn of her current address.

Indecent assault

1. [35]

   On 8 August 2001, the defendant entered the home of V8, a 17 year old victim, by pushing open a closed rear door. The victim was unknown to the defendant. He entered the victim’s bedroom and climbed onto her bed and removed her pants. The victim woke when he began kissing her and felt him rub his hand on her vagina outside of her underwear. The defendant stated “We’ve come this far lets fuck” and she felt his erect penis on the outside of her underpants. The victim pushed him out of bed and turned on her bedroom light. The defendant walked to the kitchen fridge and left by the front door soon after. He was identified by reference to fingerprints found at the scene.

2. [36]

   On 15 August 2001, the defendant contacted the police and stated he was the person they were looking for in relation to the incident. When interviewed he denied recollection of the incident. He was subsequently charged with indecent assault and other offences.

Mental Health (Forensic Provisions) Act dismissal – 2002

1. [37]

   On 5 April 2002, the defendant was dealt with by the Newcastle Local Court pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“MH Act”) for the offences of stalk and intimidate and indecent assault.

2. [38]

   In a report dated 16 November 2001, Dr Russell Hinton, forensic psychiatrist, noted the defendant reported recently going “manic” with increased thought-processes, restlessness, irritability and anxiety. He also reported smoking up to “forty cones per day of cannabis” and occasionally using amphetamines. He had been prescribed sodium valproate (mood stabiliser) and olanzapine (antipsychotic) in September 2001 and had been compliant with his medication since that time.

3. [39]

   The defendant was admitted to James Fletcher Hospital on 12 September 2001. He was diagnosed with bipolar affective disorder, hypomania and being delusional. At the time of the report, he had been attending the Kirkwood House drug and alcohol counselling groups and had been receiving psychiatric follow ups.

4. [40]

   In a report dated 22 February 2002, Dr Alan White, the psychiatrist who treated the defendant following his admission, diagnosed the defendant with “psychotic symptoms complicated by the misuse of alcohol and marijuana” with an underlying diagnosis of bipolar affective disorder. The defendant had not been taking medications and was using marijuana and alcohol at the time of offending such that the degree of his psychiatric disturbance was severe.

5. [41]

   The defendant was discharged from James Fletcher Hospital on 2 October 2001 and continued with twice weekly group sessions and individual follow up with Dr White. He was compliant with his medications, namely, Epilim (used as a mood stabiliser) and Zyprexa (an anti-psychotic) and, in Dr White’s opinion, he was at negligible risk of relapse or future offending if he was compliant with medication and remained abstinent from alcohol or drugs.

Victim 5

1. [42]

   Victim 5 lived with her partner, W1. The defendant met V5 through W1 as both were employed as truck drivers and socialised together. The defendant was in a sexual relationship with V5 from about mid-2004 and supplied her with amphetamines. The nature of the relationship from the beginning of 2005 until the death of V5 (resulting in the index offence) is discussed below.

Contravene AVO: January 2005

1. [43]

   On 13 January 2005, the Local Court made an interim AVO for the protection of V5 that prohibited the defendant having contact with her except through his legal representative.

2. [44]

   On 21 January 2005, V5 attended Maitland Police Station and reported that the defendant had made four calls to her. She received a call from the defendant whilst she was at the police station and the police heard him say “I’m begging you just drop it”. In a later interview (on 9 February 2005), the defendant admitted to having sent about 3,200 SMS and making 400 phone calls to V5 between August and October 2004. Police recorded that V5 and the defendant had an intimate relationship until Christmas 2004 when V5 ended it.

3. [45]

   The defendant was charged with contravening the AVO and later sentenced to a 12 month good behaviour bond.

Contravene AVO: March 2005

1. [46]

   On 27 March 2005, V5 complained to police that she had received 30 phone calls since the order was made on a final basis. She suspected it was the defendant making those calls. On 23 March 2005, she received a call from the defendant stating “You fit the bitch role perfectly”. Police logs showed that the defendant’s phone had called her phone 53 times between 2 and 24 March 2005.

2. [47]

   On 28 March 2005, the defendant made nine further calls to V5, including one apologising for his actions and offering to pay for electricity fuses that had been removed from her meter box on 30 December 2004.

3. [48]

   On 31 March 2005, the defendant made a further five calls to her mobile phone and during one of those calls, he asked if her unborn baby was his. He was later charged with contravention of the AVO in relation to this contact.

Probation and Parole supervision: 2005

1. [49]

   On 20 May 2005 the Maitland Local Court sentenced the defendant to a 3 year good behaviour bond for the contravene AVO charges, which required that he be supervised for 12 months by Probation and Parole. The defendant completed an Anger Management Program as directed and his participation was described to be “satisfactory” however he later breached his order by re-offending.

Contravene AVO: February 2006

1. [50]

   The defendant was charged on 4 February 2006 with contravening an AVO. He was released for bail on that offence. He continued to send SMS messages to V5 during 2005 and into early 2006 notwithstanding the final AVO in place which was set to expire on 27 February 2006.

2. [51]

   On 3 February 2006, the defendant drove past V5’s home after she returned there with a friend. Over the next two hours, she received about 19 SMS messages from the defendant. He was arrested soon after. In a police fact sheet of 4 June 2006, it was stated the defendant made admissions in an interview. He stated that he had attended the premises numerous times with V5 and showed the police messages he had received from her. The text messaging continued, it was recorded, until early 2006 when the frequency of text messages increased. The police expressed the view that he and V5 shared a relationship in which he supplied her drugs in return for sex but the relationship had soured when he ceased supplying to her (according to the police bail report, this offence was “adjourned generally” and there is no record of it being formally determined).

3. [52]

   In the police interview recorded in an ERISP of 4 February 2006, the defendant claimed that V5 had contacted him in May 2005 and spoke to him for a number of hours. It was also claimed that V5 contacted the defendant daily from that time, that he had been to her residence and she had been to his work (one text message was read onto the ERISP record). He also stated that he and V5 had a huge argument in the last fortnight. The defendant described the relationship as “my friend, my girlfriend, it wasn’t just purely sexual” even though V5 had a boyfriend at the time.

Damage property and trespass: March 2006

1. [53]

   The defendant was a close friend of co-offender 2 (“CO2”) who lived with co-offender 3 (“CO3”). CO3 also supplied amphetamines, including to a co-offender 1 (“CO1”), who was also known to CO2.

2. [54]

   At about midnight on 8 March 2006, the defendant and CO2 went to V5’s home and attempted to enter by jimmying open a security door. They ceased and ran when V5 opened the door and saw the defendant. Her partner and two children were sleeping in the house at the time. Damage was subsequently found on another door.

3. [55]

   V5 reported the matter to police and the defendant was arrested and charged on 9 March 2006 with trespass and malicious damage (this offence was “adjourned generally” and there is no record of it being formally determined). The defendant denied the offending during a record of interview and stated he was at home at the time of the offence.

4. [56]

   The defendant was released to bail on 13 March 2006. A Hunter New England Mental Health Clinical Nurse Consultant assessed the defendant that same day and reported that he had remained in constant contact with Kirkwood House since about September 2001, but he had been abusing amphetamines (which put him at risk of relapse) although his mental health appeared “surprisingly good” at the time.

Index offence (manslaughter): 20 March 2006

1. [57]

   On 19 March 2006, the defendant sent V5 numerous abusive SMS messages including “either fuck for points junkie slut or be fucked up for points. Deadly serious. Home alone tonight are we slut” and in a phone call that day said to V5 to the effect “you’ll pay for what you have done”.

2. [58]

   The defendant asked CO2 to go to her house and “deal with V5” at about 1 am on 20 March 2006. The defendant planned to be at work in another location at this time with records to establish the same. CO2 recruited CO1 to drive him there. She collected CO2 from a rendezvous point where the defendant had earlier dropped CO2. CO2 was carrying a .22 rifle in a bag at the time. CO1 drove CO2 to a place opposite V5’s house.

3. [59]

   V5 was in her front room at the time and went to her window to look out when she heard CO1’s car pull up. CO2 leaned across the roof of CO1’s car and fired three shots at the house. The first shot struck V5 in her neck and lung and she died shortly thereafter. The second and third shots also hit the house. CO2 and CO1 drove off straightway and went back to CO3’s premises. CO2 disposed of the rifle in the Hunter River the following night. V5’s partner and their two children aged four years and 10 months respectively were in the house at the time of the shooting.

4. [60]

   The defendant was interviewed by police on 20 March 2006 and denied involvement in the offending. Police released him that same day without charge. On 27 March 2007, the defendant was again interviewed and admitted he had a sexual relationship with V5 at various times since August 2004 and stated she “could be vindictive and manipulative but that he thought he had found his soul mate and was in love with her” and that she used him to get amphetamines. He admitted supplying her amphetamines and stated that at the time of her death she owed him $300 for the drugs he had supplied. He denied involvement in her shooting.

5. [61]

   The defendant pleaded guilty to the offence of manslaughter before Barr J on 22 October 2007 on the first day of his trial, which was accepted in full satisfaction by the Crown. The offences of supply prohibited drugs and conceal serious indictable offence were taken into account on a Form 1.

6. [62]

   The defendant later pleaded guilty to the offence of manslaughter on the basis of an unlawful act, namely, he planned an assault upon her and entered a joint enterprise with CO2 to put that into effect, realising that CO2 might use a firearm in the assault and by doing so might kill V5.

7. [63]

   Barr J imposed a sentence of 10 years and 11 months imprisonment commencing 29 July 2007 to expire on 28 June 2018, with an 8 year and 2 month non-parole period.

8. [64]

   At the time of committing the offence, the defendant was still subject to the 3 year good behaviour bond and also on bail for other offences.

9. [65]

   Some passages of Barr J’s remarks on sentence are instructive, particularly having regard to the contentions advanced by the defendant.

10. [66]

    Barr J’s remarks on sentence were as follows (at [2], [10], [14], [15], [17] and [48]):

11. [67]

    By reliance upon [2] of those remarks, it was submitted by the defendant that he was estranged from V5 at the time of the offence and that the relationship was inactive “well before 2006” (the defendant submitted it had been for a period of about 12 months). That submission was developed in order to sustain a contention that there were differences between the index offence and a later offence in May 2017 (which will be discussed further below) which had a bearing upon the assessment of risk. The defendant’s submissions also sought to establish a factual basis to impugn the opinions expressed by Dr Richard Parker, a psychologist who gave a report in these proceedings (again discussed below).

12. [68]

    On the material presently before the Court, the defendant’s submission does not, in my view, properly reflect the “relationship” between the defendant and V5 from the beginning of 2005 until the time of the index offence, save for the contention that the defendant was estranged from V5 by the time of the offence.

13. [69]

    It was most likely the sexual relationship between V5 and the defendant ended by the beginning of 2005. However, the defendant perceived that there was a relationship persisting until the souring of the relationship in early 2006. There may well have been irrational aspects to those thought processes and the holding of that view, but the aforementioned material would also suggest the maintenance of some form of dysfunctional and strained relationship between V5 and the defendant, including ongoing telephone exchanges and meetings until much closer to the index offence.

14. [70]

    There are four reasons as to why the defendant’s contention should not be accepted in this respect:

    1. (1)

       As counsel for the defendant conceded, there was no finding by Barr J, as such, to that effect. It is true his Honour remarked that the defendant was ‘resentful’ of V5 and further that the defendant sought to exact revenge for perceived “slights” or to enforce, or push, for payment of a drug debt (the defendant referred to a finding regarding a ‘grudge’, however that was related to the co-accused), but the sentencing judge also remarked that the defendant did not want to end their relationship (revolving around supply of drugs and sex) and that AVO’s were accordingly taken out in 2005 and 2006 when “things became awkward”.

    2. (2)

       Police facts for the index offence recorded that the relationship between the defendant and V5 continued until February 2006 “when it soured”.

    3. (3)

       The defendant sent SMS messages to V5 throughout 2005 and into early 2006, notwithstanding an AVO forbidding that conduct. Some material suggests the exchanges came from V5 and that the defendant went to her house, notwithstanding that she had a partner. Further, as earlier mentioned, the defendant drove by V5’s house on 3 February 2006, police forming the view around that time that the defendant and V5 had a relationship which soured when the defendant discontinued the supply of drugs.

    4. (4)

       As will be described below, the defendant was said to have described V5 as “his partner” in 2015 probation and parole reports and, in February 2016, made statements that he would get rid of V5 but could not say “no” to her and “would always [remember?] her”.

15. [71]

    Some further observations may be made regarding the index offence:

    1. (1)

       A psychological report prepared by Mr Ashkar was tendered in the plea hearing. Mr Ashkar noted that the defendant had not used cannabis since his last admission into hospital (likely a reference to the 2001 admission) but had been using amphetamines since he was 20 years of age. He used amphetamines on a weekly basis until his early 30s by which time he was using it on a daily basis. He commenced using methamphetamine when he was about 33 years of age and had been using between two and four “points” of that substance most days since that time.

    2. (2)

       The defendant reported he attempted to address his methamphetamine use in early 2007 through an out-patient program at Newcastle Hospital over a three month period. The defendant reported that, at the time of the index offence, he had become increasingly angry and claimed his decisions were impaired by his drug use.

    3. (3)

       Barr J referred to Mr Ashkar’s conclusions regarding the defendant having an unstable affect, cognition and behaviour, little or no interest in other people, an ongoing fear of rejection and humiliation, self-perceived inadequacy and a possible disregard for social norms (at [10]).

    4. (4)

       The State submitted the defendant’s bipolar disorder was in full remission at the time of sentencing but he had a serious dependency upon amphetamines requiring the intervention of professionals to address the same. His Honour assessed the defendant as having “prospects of rehabilitation, but they are not high” (at [17]).

16. [72]

    I accept that Barr J’s remarks are consistent with the State’s submissions as to the defendant’s drug use and mental health at the time of the offence.

Conceal a serious indictable offence and supply prohibited drugs on an ongoing basis: March 2004 to March 2006

1. [73]

   The defendant was not initially charged with the death of V5. He was arrested and charged on 27 March 2007 with the offences of concealing a serious indictable offence and supply prohibited drugs. Bail was refused. In his interview on 27 March 2007, the defendant denied knowledge of the shootings and maintained his alibi.

Bail granted: 16 June 2006

1. [74]

   The defendant was released to bail by the Supreme Court on 16 June 2006 (at the time he was only charged with concealing the murder and supply of prohibited drug) with conditions including that he report daily to police, reside with his mother, continue to receive treatment for his bipolar disorder and be of good behaviour. Subsequently, he was charged with being involved in causing V5’s death.

Offences: May 2007

1. [75]

   On 10 May 2007, the defendant committed the offence of take and drive a car.

2. [76]

   On 18 May 2007, the defendant attempted to steal shoes and clothing from a clothing shop in Charlestown. After initially cooperating with shop staff, the defendant attempted to flee the shop and became involved in a short wrestle and struggle with the victim of the assault (a shop assistant) for which the police were called. The defendant later reported that the stealing offence was committed to fund his illicit substance usage.

3. [77]

   The Newcastle Local Court later sentenced the defendant to 5 months imprisonment which was suspended upon him entering into a s 12 bond with a condition to accept supervision by the Probation and Parole Service.

Supervision: May and June 2007

1. [78]

   The defendant left a detoxification programme on 29 May 2007 and later admitted he had used amphetamines on 1 June 2007. A urinalysis sample taken on 5 June 2007 tested positive for, inter alia, amphetamine, methylamphetamine, oxazepam and cocaine.

Possess implements and larceny: June 2007

1. [79]

   The defendant was charged on 8 June 2007 with possession of implements and larceny. He was found in the possession of stolen license plates that he was in the process of placing onto his own car. He pleaded guilty before the Newcastle Local Court that same day and was sentenced to 1 month imprisonment commencing 8 June 2007.

2. [80]

   The defendant was continually in custody from 7 June 2007 until his sentencing for the index offence.

Custodial treatment and behaviour: 2007 to 2015

1. [81]

   Between 2007 and 2015 the defendant completed:

   1. (1)

      the “Step Up Program” in 2007 in which the facilitator noted positive participation;

   2. (2)

      the “Managing Emotions” program in 2008 with a reported satisfactory response;

   3. (3)

      the “Self Management and Recovery Training (SMART)” program in 2009;

   4. (4)

      the “Health Survival Course” in May 2010;

   5. (5)

      the “Domestic Abuse Program” in December 2012 (the defendant was reported to have satisfactory attendance and to have demonstrated a level of insight);

   6. (6)

      the “Reach Out and Relate” program (1 day) in 2014; and

   7. (7)

      the “Domestic Abuse Program” on 17 August 2015 (the defendant initially reported frustration at being required to undertake the program but, by the completion, he was reported to have shown a positive shift in attitude and had developed a comprehensive understanding of the cognitive behavioural therapy model).

2. [82]

   He also participated in a methadone program between 2008 and 2009.

3. [83]

   The defendant was assessed as ineligible for the Violent Offender Therapeutic Programme (“VOTP”) in 2016 and the CALM program in 2012 owing to his low Level of Service Inventory – Revised (“LSI-R”) score.

4. [84]

   The defendant engaged education services to increase his opportunities for employment and was described in the past as a steady, conscientious, hard worker. He had completed a forklift ticket and first aid certificate during his incarceration. However, he was reported to be difficult to manage at times and resorted to “outbursts of rage”.

5. [85]

   Between November 2009 and February 2015, he had 17 misconduct offences proven against him. One offence was for fighting on 21 September 2011. The other offences included failing to comply with correctional centre routine, intimidation and failing prescribed urine tests.

Probation and parole

1. [86]

   In June and August 2015, the Probation and Parole Service recommended against the defendant’s release to parole. Although the defendant’s compliance and attitude were considered to be satisfactory, he was considered to be “bereft of any real insight as to the destructive consequences of his behaviour toward those involved with him and the general community”. He was also considered to have “distorted” perceptions concerning acceptable social boundaries and it was noted his “failure to accept the true nature of his relationship with the victim [gave] rise for considerable concern”. Participation in external leave programs and further programs was recommended.

2. [87]

   A probation and parole report dated 26 June 2015 prepared with respect to the defendant’s possible release to parole noted that he:

3. [88]

   On 2 February 2016, the defendant made statements about his index offence to the mental health providers including that:

4. [89]

   On 3 September 2015, the State Parole Authority (“SPA”) refused to release the defendant on parole as he needed to complete a program to address offending behaviour (being violence and anger management) and needed to participate in external leave.

Escape lawful custody: January 2016

1. [90]

   As at 25 January 2016, the defendant was an inmate at South Coast Correctional Centre at South Nowra. At the time he was classified as a C2 minimum security prisoner. On that date, he was doing maintenance work outside the main walls and fences of the facility. He left the grounds without permission and made his way by unknown means to a residential property from which he stole a Mercedes van. The van’s owner saw his car being driven away and followed the defendant in another car.

2. [91]

   The defendant rammed into the owner’s car when he braked in front of him in an attempt to stop him. The owner called police on his mobile phone and continued following the defendant giving police information as to their location. At one point, the defendant drove on to a footpath to pass vehicles and continued through an intersection against the red light in an attempt to get away from the owner.

3. [92]

   Police commenced chasing the defendant. He then drove into a service station and collided with two petrol bowsers whilst travelling at about 50 km per hour, causing the bowsers to rupture and fall over. He later told police that he did so in an attempt to cause an explosion to “blow himself up” to avoid returning to prison. At the time, there were approximately 20 people, including small children, both in and out of cars at the petrol station.

4. [93]

   The defendant exited the car and ran a short distance before turning to face police. He held a screwdriver with a shank about 15 cm long in his left hand and wielded it in a threatening manner towards police. He continued to do so after being told to put it down and being sprayed with pepper spray.

5. [94]

   When an officer pulled a firearm and threatened to shoot the defendant if he did not drop the screwdriver, the defendant yelled “shoot me you weak cunt, shoot me”. A short time later he placed the screwdriver at his feet and lay face down on the ground. The defendant was then handcuffed and arrested.

6. [95]

   According to reports made to mental health practitioners after his incarceration, the defendant reported taking his Epilim and Seroquel as administered but that in the weeks prior to his offending, he had self-adjusted his Epilim intake as he thought this would help him cope with his low mood.

7. [96]

   The defendant wrote a letter dated 2 March 2016 to the sentencing Magistrate that explained, inter alia, that he committed the offences after being refused parole, his frustration as to the reasons for that refusal, the impact the death of his father in April 2014 had on him and the changes he had made to his mental health medication after not being able to access mental health services during 2015. At the time of offending, he reported feeling “anxiety, guilty, anger, expectation, hopelessness, frustration & worthlessness” that became overwhelming. Since the offending, he had seen a mental health nurse and psychologist and “now fully realize[d] & accept[ed] responsibility for my actions & [understood] that they were dangerous, reckless…”.

8. [97]

   The defendant was ultimately sentenced (after appeal) to an aggregate sentence of 2 years imprisonment commencing 25 January 2016 set to expire on 24 January 2018 with a 9 month non-parole period.

Custody: February to 16 December 2016

1. [98]

   The defendant was assessed ineligible to participate in the VOTP in March 2016 owing to “…his general level of reoffence risk, and lack of extensive historical or institutional violence” and that priority was being afforded to high risk violent offenders with high treatment needs” .

2. [99]

   The defendant completed the “EQUIPS Aggression” program in May 2016 and received positive reports from the program facilitators. He also completed the “EQUIPS Addiction” program in December 2016 and received excellent reports about his participation.

3. [100]

   As at December 2016, he was prescribed Escitalopram, Sodium Valproate (Effexor) and Quetiapine (Seroquel) for the management of his bipolar disorder and his mental health was considered to be stable and well managed.

4. [101]

   On 13 December 2016, the SPA ordered the defendant’s release to parole for the index offence. The SPA set additional conditions, including that he not use or be in possession of a prohibited drug or substance, and undertake and maintain alcohol or drug programs and counselling as directed as well as comply with all directions of the mental health team. He was released to reside with his mother in the Newcastle area.

Parole supervision: early 2017

1. [102]

   The defendant’s initial response to supervision was considered to be satisfactory. He reported as directed and accepted referrals to service providers, including commencing an individual psychological counselling program and complying with a mental health medication treatment plan. He did not present as being at risk of drug use throughout the time he was supervised.

Stalk or intimidate with intention to cause fear, intentionally choking a person and malicious damage (“the May 2017 offences”)

1. [103]

   In about February 2017, the defendant met V1. Soon after that encounter progressed to a casual relationship. V1 was 42 years of age.

2. [104]

   V1 said in the first month of the relationship, the defendant “contacted me a lot and was pursuing me pretty relentlessly” and “was telling people we were in a full on relationship but I viewed it as casual as I was getting ready to travel”.

3. [105]

   On 3 April 2017, V1 attended an interview with the defendant and Community Corrections. Community Corrections later attempted to contact V1 in the following weeks but were unable to reach her by phone. When this was raised with the defendant, he stated that she did not wish to be “interrogated” by Community Corrections and that he was no longer in a relationship with her.

4. [106]

   Sometime in March or April 2017, the defendant committed a malicious damage whilst V1 was at the defendant’s house. He had become angry she wanted to leave to call her family and smashed her mobile phone. He also made threats to harm her brother. Thereafter, he called her and sent her numerous text messages. He also attended her home unannounced to pursue the relationship.

5. [107]

   On 11 May 2017, the defendant committed an offence of intentionally choking V1. This was committed whilst they were at the beach together. The defendant had not been invited to accompany V1.

6. [108]

   Whilst at the beach, he read her Facebook page and accused her of seeing other people. When she rebuked him, he grabbed her throat with both hands and choked her to the point that she lost consciousness. During this assault, he physically forced her face into the sand whereby she inhaled sand. The duration of the assault is unclear.

7. [109]

   Between 11 and 23 May 2017, the defendant frequently called or sent text messages to V1 that were threatening and intimidating in nature (this constituted intimidation with intention to cause fear). The following SMS records sent by the defendant are of significance:

8. [110]

   On 22 May 2017, the defendant provided Community Corrections with V1’s address and they contacted Newcastle Police online to request a welfare check.

9. [111]

   On 23 May 2017, the defendant attended Community Corrections. His physical appearance and mental presentation had deteriorated since his last contact with the service. He stated his relationship with V1 was “on again off again”. He also stated had been struggling to remain violence free and that his partner had been banned from his mother’s home owing to issues between them.

10. [112]

    The defendant also admitted he had “smashed things” at his mother’s home and had behaved in an intimidating and aggressive manner towards V1, but denied physically assaulting her. He reported being displeased with V1’s behaviour but felt unable to give the relationship a break as he feared she would move onto another relationship and he felt “emotionally invested”. He felt a “whole new level” of frustration and being “emotionally worn out” and doubted his capacity to change.

11. [113]

    Community Corrections contacted the police’s Crime Management Unit on 23 May 2017 and requested an immediate welfare check on V1. Police attended on V1 that same day and learnt of the offences committed on her.

12. [114]

    On 23 May 2017, the defendant was charged with seven offences with respect to V1 and was remanded in custody. He subsequently entered pleas of not guilty and the matter proceeded to the District Court for trial. The trial was listed to commence on 13 August 2018.

13. [115]

    After the defendant completed his sentence of imprisonment for the index offence, he remained in custody on remand for his charged offences.

14. [116]

    On 15 August 2018, the defendant entered pleas of guilty to malicious damage, intentionally choke with recklessness contrary to s 37(1) of the Crimes Act 1900 (NSW) and stalk or intimidate with intent to cause fear or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in full satisfaction of his charges. The defendant is due to be sentenced for these offences on 13 December 2018.

Period in custody since May 2017

1. [117]

   On 24 April 2018, a disciplinary offence of “fight or other physical combat” was found proven against the defendant. A correctional officer witnessed the defendant hitting another inmate.

2. [118]

   On 13 September 2018, the defendant was notified that he had been assessed as suitable to participate in the VOTP program and had been added to a waiting list.

3. [119]

   On 24 October 2018, the disciplinary offences of “disobey direction” and “intimidation” were found proven against the defendant.

4. [120]

   The defendant has received positive reports with respect to his employment.

SECTION 9(3) FACTORS: AN OVERVIEW

1. [121]

   Although the Court is not mandated to consider the s 9(3) matters in determining whether s 5B(d) is satisfied, these matters may still inform that analysis (see Harrison J in Kamm at [42], referring to Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [22]).

Criminal history

1. [122]

   The criminal offences committed by the defendant are described in the factual background above together with sentencing remarks of Barr J for the index offence. That history can be traced over a 17 year period from the AVO offences in 2000 to the choking offence in 2017.

2. [123]

   I will discuss the various submissions as to the nature or pattern of offending below, but I accept the submission of the State that, on the material before the Court for the preliminary hearing, a feature of the offending is an obsessive or controlling behaviour towards female victims. The violence typically stemmed from a misperception of the relationship, his disquiet as to the victims’ reaction to him or the declining status of the relationship.

3. [124]

   As will be further discussed below, I also accept the contention that the May 2017 offences represents an escalation in the seriousness of offending and that the chance of serious injury was high. In 2017, the applicant directly and deliberately inflicted violence on the female victim.

Parole and bail

1. [125]

   The defendant has committed a number of offences whilst subject to bail or supervised orders (such as parole) including, but not limited to, the index offence and the May 2017 offences. The defendant escaped from the South Coast Correctional Centre in January 2016. I agree with the State’s submission that the offences to either avoid capture or attempt to end his life demonstrate how dangerously the defendant can behave in times of desperation.

Treatment or rehabilitation

1. [126]

   The defendant completed a community-based anger management program in 2005 but then went on to commit the index offence in March 2006. He also completed numerous programs between 2007 and 2016 as noted above at [81]. He generally received positive reports with respect to his participation in these programs. However, the offences he committed on V1 in May 2017 occurred a short period of time of his release to parole in late 2016.

2. [127]

   The defendant has recently been assessed to participate in the VOTP (most likely due to the relevantly recent acts of violence in May 2017 noting that he was previously refused entry).

3. [128]

   Dr Parker (whose report is considered below) remarked that the defendant did not relapse into drug use.

Assessment by registered psychologist

1. [129]

   Dr Parker is a senior forensic psychologist employed by the Serious Offenders Assessment Unit which is a division of Corrective Services NSW. He prepared a risk assessment report dated 8 December 2017 and provided a brief update to the report on 15 November 2018 in which he said his opinion had not changed after taking into account the defendant’s plea of guilty to the May 2017 offences and his custodial performance.

2. [130]

   Dr Parker had regard to past risk assessments and also applied the LSI-R and the Domestic Violence Risk Appraisal Guide (“DVRAG”).

3. [131]

   As to actuarial instruments, Dr Parker opined (at para 44):

4. [132]

   Dr Parker also referred to dynamic risk factors (at para 45):

5. [133]

   As to LSI-R, Dr Parker reported (at para 48):

6. [134]

   As to the selection of DVRAG and its application, Dr Parker observed (at paras 54-57):

7. [135]

   The defendant emphasised that the instrument had been adopted to review the defendant’s case and was informative, rather than definitive. Counsel for the defendant also correctly pointed out that the instrument did not differentiate between violence and serious violence.

8. [136]

   Dr Parker then set out the defendant’s criminogenic needs as follows (at [59]):

9. [137]

   The defendant submitted that much of those factors are now absent. There was no evidence that the defendant had acquainted himself with criminal peers after the index offence whilst on parole or back in custody. He had not lapsed back into drug use.

10. [138]

    As to criminal history categories, Dr Parker stated the defendant exhibited “beat or be beaten thinking” in custody and in relationships, and “I get out of control thinking” when taking drugs. Accordingly, the “beat or be beaten” criminogenic need was the only one need active at the time of the May 2017 offences.

11. [139]

    In his report Dr Parker stated:

12. [140]

    In Dr Parker’s opinion, the defendant will likely seek to form another intimate relationship upon his release from custody and “similar problems to the past” will likely arise in that respect.

13. [141]

    Dr Parker further stated:

14. [142]

    The defendant sought to cast doubt on Dr Parker’s conclusion that the index offence (and the risks of future re-offending) was due to a series of dysfunctional relationships. That submission was predicated upon a proposition that it was likely that the relationship between the defendant and V5 had ended about 12 months before her death which I have, on the material before the Court for this preliminary hearing, rejected.

15. [143]

    Further, Dr Parker’s report was predicated upon a series of dysfunctional relationships resulting in numerous AVOs – a conclusion which is, I consider, available from the material before the Court insofar as the AVOs derive from, and illustrate, a pattern of behaviour by the defendant relevant to the evaluative judgment required under s 5B(d) of the Act.

16. [144]

    Nonetheless, the defendant is correct to emphasise the limits of the actuarial instruments employed by Dr Parker, not just in terms of the use of DVRAG in this case (or its adaption for use), but more generally. As Wilson J observed in Simcock at [83], “[t]he actuarial tools establish a considerable risk that the defendant will reoffend, but not that he will reoffend by committing an offence of serious violence”.

Response from CSNSW as to management in the community

1. [145]

   Kirsten Flatley and Janelle Farroway, the Extended Supervision Team, prepared a risk management report dated 8 January 2018. It outlines the risk management plan to be implemented for the defendant. That plan includes the following strategies:

   1. (1)

      The defendant would be subject to weekly interviews by supervising Community Corrections officers at a Community Corrections office, his place of residence or via field visits.

   2. (2)

      He would also be subject to scheduled and unannounced home visits, field visits and surveillance conducted by the Extended Supervision Order (ESO) team (“ESO team”)at a minimum of once a month.

   3. (3)

      Scheduled and unannounced home visits, field visits and surveillance would be conducted by the ESO Team or Extended Supervision Order Investigations team (“ESOIT”) at a minimum of once per month.

   4. (4)

      The ESO team would also make third party contacts including his Forensic Psychology Services (“FPS”) therapist, community psychologist, employment service caseworker, the Electronic Monitoring Unit, ESOIT, Corrective Services NSW Intelligence Group, police and the defendant’s family to determine if there are any concerns relating to him. The defendant’s mother may continue to demonstrate concerning attitudes about any future partner of her son and may not be a reliable source of information.

   5. (5)

      Subject to any order of the Court, the defendant would be required to submit a weekly schedule of movements for consideration and approval. He would only be approved to engage in pro-social activities and be required to adhere to his approved schedule. Electronic monitoring and weekly schedules would assist the ESO team to gauge his attitudes and ameliorate the risk of him engaging in high-risk situations or unsuitable activities.

   6. (6)

      The ESO team would also refer the defendant to FPS for assessment of his treatment needs and would also refer him to psychiatric assessments and require him to participate in drug and alcohol counselling.

CONSIDERATION

1. [146]

   The primary plank of the defendant’s contentions was that there were three matters had a particular bearing upon the determination required under s 7(4) of the Act: the index offence, the offence of May 2017 and the expert report into risk.

2. [147]

   The index offence was said to constitute a particular and unusual set of facts which were distinguishable from the May 2017 offences (the AVOs being matters which would attract little weight in the evaluation). Those distinguishing features for the index offence included the defendant’s involvement in the possession and supply of illegal drugs, the engagement with associates willing to assist him in carrying out a violent act and his associates having possession of a fire arm. The defendant was the “instigator, planner and intended beneficiary” but did not directly inflict the violence on V5. The defendant’s bipolar disorder was exacerbated, it was submitted, through illicit drug use at the time of the index offence.

3. [148]

   Thus, it was contended that the index offence was sui generis and the evidence established those circumstances no longer exist.

4. [149]

   Further, it was submitted that even if the risk were judged to be an unacceptable one, it could not be said there was a high degree of probability of that risk occurring.

5. [150]

   it was contended there was no recently committed offence which was a similar serious offence, no desire to engage in such an offence or relevant criminogenious factors, including the existence of an appreciable risk of engaging in a serious offence.

6. [151]

   The May 2017 offences were not serious offences for the purposes of the Act and did not possess the same characteristics as the index offence. Reference was made to the following features of the May 2017 offences: the defendant acted violently himself without planning (or “immediately”), the violence was of a lesser severity and consequence, and there was an absence of drugs.

7. [152]

   It was further contended that the fact that the defendant had a relationship with V1 and V5 was insufficient to establish an unacceptable risk to the requisite standard. The defendant submitted there were differences in relationship status at the time of the offence between V1 and V5. It was contended Dr Parker’s report did nothing more than demonstrate a heightened risk of violent offending and not the prospect of a further serious offence.

8. [153]

   I accept the proposition which is central to the defendant’s submission, namely, that a determination as to whether a risk is unacceptable for the purposes of s 5B(d) is an evaluative task which, by its nature, depends upon the relevant context in which the risk is to be assessed. The evaluation of risks under s 5B(d) is the risk of the offender committing another serious offence if not kept under supervision.

9. [154]

   However, I do not consider the points of differentiation relied upon by the defendant (including by reference to Dr Parker’s report) may be dispositive of the key issue in these proceedings in favour of the defendant, namely, the Court may be satisfied in this preliminary hearing, that there is not a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision.

10. [155]

    On the materials before the Court, the defendant failed to establish the existence of material differences in the index offence and the May 2017 offences and has ignored significant similarities relevant to the assessment of risk. Further, to the extent that change was demonstrated by the defendant, I do not consider it assisted the defendant’s case. The changed circumstances which were demonstrated tended to exacerbate, rather than reduce, the relevant risk.

11. [156]

    The defendant has committed numerous offences in an 18 year period. The serious offence which excited the operation of Pt 2 of the Act occurred in March 2006. From July 2007 until December 2016 (when the defendant was released on parole), the defendant was in custody. The defendant committed the May 2017 offences when on parole and then spent a further period in custody. He was scheduled to be sentenced for that offence on 11 December 2018 and was in custody from the time of his arrest to that date.

12. [157]

    The State was correct to submit that those facts put the submission by the defendant into sharper perspective, namely, that the defendant has not committed another serious offence given the limited period of time he has been out of custody since the index offence. Further, the defendant’s offences (as I will discuss below) have a commonality, being a close connection to dysfunctional interactions with female victims with which he has had some form of relationship (even if short lived). The prospects of those circumstances occurring whilst in custody are remote.

13. [158]

    I accept the submission of the State that the defendant’s offending history demonstrates a pattern of behaviour with three different women extending from the AVO offences from 2000 through to the May 2017 offences. The defendant developed a distorted belief of the status or nature of the relationship, including whether the relationship had completely broken down or had a remainder of communication or engagements, as notably demonstrated by the circumstances of the index offence.

14. [159]

    It is that pattern of offending, or its underlying features or drivers, which underscore the risk; a factor reflected in Dr Parker’s assessment that the defendant represented a moderate to high risk of violent recidivism and a much higher ranking on the DVRAG (although those assessments need to be approached cautiously in the light of my earlier observations, particularly in the case of DVRAG where the result is purely informative).

15. [160]

    I note for completeness that there would not appear to be the presence of the defendant’s bipolar disorder at the time of both the index offence and the May 2017 offences.

16. [161]

    Further, differences between the index offence and the May 2017 offending need to be seen in their proper perspective.

17. [162]

    It is true that the defendant had completed various programs by the stage of the May 2017 offences and was not using drugs (as had occurred at the time of the index offence). It is also true that the defendant did not have assistance from criminals to carry out the May 2017 offences and the offending was not demonstrative of prior planning.

18. [163]

    The counterpoint of those propositions is, in my view, as correctly, submitted by the State, that those changes in the pattern of offending represent an escalation in offending and, in turn, provide an indication of increased risk. The offending in May 2017 occurred in the face of completed treatment programs and regulation of drug use which should have been disinhibiting factors. That the defendant directly engaged in the violent act demonstrated a heightening of his engagement in the criminal violent acts. The defendant’s behaviour during his escape must also be taken into account in discussing risk.

CONCLUSION

1. [164]

   In my view, the State has established that the supporting material in this matter would, if proved, justify the making of an extended supervision order. In particular, I am satisfied that, if proven, the material would establish the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order, although the Court will be better able to finally answer the question raised by s 5B(d) with the benefit of expert advice from an appropriately qualified psychiatrist and psychologist (it may be observed that one purpose of a preliminary hearing is potentially to give the Court the benefit of such expert opinions before final decision: Manners at [9] per Johnson J).

2. [165]

   No interim supervision order is sought by the State. The Court shall make orders that one psychiatrist and one psychologist, as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports to the Court by a date to be fixed at a directions hearing before Bellew J at 9:30 am on Monday 11 February 2019. The program for final hearing shall be fixed at that directions hearing.

3. [166]

   The Court is inclined to make orders 10 and 12 as sought in the short minutes of order filed in Court on 5 December 2018.

4. [167]

   Proposed order 11 in the short minutes of order reflects order 5 of the amended summons. Submissions were received from the parties as to the power make such an order, particularly having regard to r 36.12 of the Uniform Civil Procedure Rules 2005 (NSW). In my view, the Court has an inherent power to make the orders proposed and it is appropriate to exercise that power by granting the relief sought in order 5 of the amended summons.

5. [168]

   The State shall bring in short minutes of order reflecting this judgment by 18 December 2018.