State of New South Wales v Nikua (Preliminary)

1. [1]

   By a summons filed on 12 April 2021 the plaintiff, the State of New South Wales (“the State”), brings proceedings against the defendant, Solomone Nikua, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The State seeks preliminary orders, interim orders and final relief in the nature of an extended supervision order (“ESO”).

3. [3]

   This is the judgment in respect of the preliminary hearing.

4. [4]

   The issue I am determining is whether I should make the orders for interim relief appointing two qualified psychiatrists and/or psychologists to conduct examinations and provide reports and an order directing the defendant to attend those examinations.

5. [5]

   I am also considering whether the defendant should be subject to an interim supervision order (“ISO”) for a period of 28 days from 11 July 2021. On that day, the applicant will be released into the community having served his sentence in respect of the index offence.

6. [6]

   At this preliminary stage, the defendant does not dispute that he should be subject to an ISO and that orders should be made requiring him to attend the medical examinations.

7. [7]

   The focus of the dispute on the hearing related to the conditions which should be imposed at this preliminary stage. Having said that, it is necessary that I be independently satisfied that he should be subject to an ISO and attend the examinations.

The legislative scheme

1. [8]

   The primary object of the Act is protective rather than punitive. It provides for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act.

2. [9]

   The Court may make an order for the interim supervision of an offender, pursuant to s 10A of the Act, if in proceedings for an ESO, it appears to the Court that:

3. [10]

   The defendant’s current custody will expire before the proceedings are determined.

4. [11]

   Section 7 of the Act deals with pre-trial procedures. The wording in s 7(4) of the Act is identical to the wording in s 10A(b) of the Act.

5. [12]

   For the purposes of the orders sought, it is thus necessary to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If so satisfied, the Court must make the orders set out in ss 7(4)(a) and (b) of the Act.

6. [13]

   However, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must dismiss the application: s 7(5) of the Act.

7. [14]

   It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmot (Preliminary) [1] (“Wilmot”); State of New South Wales v Sturgeon [2] (“Sturgeon”).

8. [15]

   It follows, that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6]; Wilmot at [7].

9. [16]

   An ESO may be made if the matters set out in ss 5B(a)–(c) of the Act are established and if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d) of the Act.

10. [17]

    The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [3] at [23]–[24] as follows:

Threshold questions

1. [18]

   The defendant accepts that the threshold requirements are satisfied. His current custody will expire before the proceedings are determined. He is serving a sentence of imprisonment for a serious offence. He is a supervised offender within the meaning of s 5I of the Act. Further, an application has been made in accordance with s 5I.

2. [19]

   Further, the defendant also accepts that the application has been made in accordance with ss 6(3)(a) and (b) of the Act.

Background facts / Defendant’s criminal history

1. [20]

   The defendant is currently 38 years of age. He has an extensive criminal history which commenced in the Children’s Court. The history includes a range of offences including larceny, assault, goods in custody and driving type offences.

2. [21]

   In 2005, he was convicted of assault occasioning actual bodily harm and sentenced to a period of imprisonment of 18 months with a non-parole period of 6 months.

3. [22]

   During 2007 he was convicted of aggravated break and enter in company and sentenced to a period of imprisonment of 5 years commencing 20 April 2008 with a non-parole period of 3 years.

4. [23]

   Then in 2011, he was convicted of a number of offences of robbery armed with an offensive weapon, for which he was sentenced to a further period of imprisonment of 6 years and 6 months with a non-parole period of 4 years and 3 months.

5. [24]

   In 2014, he was convicted of the offence of affray and sentenced to imprisonment for 12 months commencing 13 November 2015 with a non-parole period of 9 months.

6. [25]

   Whilst in custody, he committed the offence of wounding with intent to cause grievous bodily harm (“the index offence”). He was sentenced to a further period of imprisonment for a period of 59 months commencing 12 August 2016 and expiring on 11 July 2021. A non-parole period of 35 months was specified.

7. [26]

   The defendant remains in custody in respect of the index offence. He is due to be released no later than 11 July 2021. It is perhaps an unusual feature of this matter that the offending which falls within the definition of serious violence offence under s 5A of the Act, is an offence which he committed whilst in custody.

8. [27]

   Although the defendant was eligible for parole on 11 July 2019 and has applied for parole, on 22 September 2020 the State Parole Authority refused to grant parole on the basis that the defendant had not completed the Violent Offenders Therapeutic Program (“VOTP”).

9. [28]

   Further, at least until recent times, the offender’s tendency to violence has not abated whilst he has been in custody. Since August 2016 he has been the subject of over 50 institutional misconduct charges. Sixteen of those relate to assault or intimidation.

10. [29]

    Between April 2018 and June 2020, he was in the High Risk Management Correctional Centre because of the risk of violence.

11. [30]

    The circumstances of the index offence were the subject of agreed facts on sentencing before her Honour, Judge Flannery SC of the District Court on 7 April 2017.

12. [31]

    The defendant and the victim were participating in the VOTP together. Whilst they were waiting in the wing yard for the commencement of the daily muster with a number of other inmates, the defendant pulled a 20 centimetre sharpened piece of plexiglass from his pocket and stabbed the victim in the head with significant force. During the subsequent struggle, the defendant stabbed the victim a further 9 times. Despite the intervention of another 9 inmates who appeared to have imposed their own acts of violence upon the defendant, the defendant and the victim continued to fight until such time as correctional officers intervened in which they needed to use gas to break up the fight.

13. [32]

    The defendant has spent much of the last 15 years in prison due to a pattern of escalating violence. Although he was actually only due to be in custody for a short period as a result of being convicted of affray, the violence perpetrated by the defendant during the index offence was of a serious type. He was thus sentenced to a much more lengthy term of imprisonment as a result of the offending whilst in custody.

14. [33]

    Further, on a review of the corrective services case notes, it is apparent that the defendant has had difficulty controlling his violent impulses whilst in custody.

Other evidence as to risk

1. [34]

   The parties have highlighted some aspects of the evidence which, in addition to the criminal history, the circumstances of the index offence and his conduct whilst in custody, would lead to satisfaction that the matters raised in the supporting documentation would, if proved, justify the making of an ESO.

2. [35]

   On 2 October 2020, Dr Richard Parker and Cherice Cieplucha, psychologists, prepared a risk assessment report on behalf of Corrective Services NSW. In their report they concluded:

3. [36]

   They said further:

4. [37]

   The authors of the report thus identified the defendant as being at a high risk of further serious violent offending.

5. [38]

   In a report prepared by Erin Kirkwood, a Senior Community Corrections Officer, as endorsed by Kelli Grabham, a High Risk Offender Applications and Operational Governance Officer within Corrective Services NSW, the defendant is assessed as posing a high risk of further violence. The authors observed that he has displayed a poor historical response to supervision and that his effective management will be partially contingent upon his willingness to engage in the supervision process and his level of transparency with supervising staff relating to his activities and ongoing stability.

6. [39]

   The defendant has a long history of polysubstance abuse. He had been drinking alcohol around the age of 12 or 13. His use of cannabis even predates that age. He began smoking heroin around the age of 13 to 14. He has also shown to have a problematic gambling history whilst under the influence of ice and accepted that he would be susceptible to relapsing into gambling if he has not addressed his ice habit.

7. [40]

   In a report of 16 February 2017, Ms Caroline Hare, a forensic psychologist, opined that the defendant required intervention to address a number of criminogenic needs, including attitudes and beliefs that support the use of violence; substance abuse; emotional dysregulation; self-control deficits; cognitive distortions and interpersonal problem-solving deficits.

8. [41]

   Having said all of that, the defendant points to his response to questioning by Dr Parker in October 2020 regarding his plans to live a law abiding lifestyle on release. He said to Dr Parker:

9. [42]

   Further, the defendant is on the methadone program and despite earlier difficulties completing the program, he is now participating in the VOTP. On release, it is proposed that he will live with his mother, as her residence has previously been assessed as being suitable.

10. [43]

    I acknowledge that having regard to the most recent efforts of the defendant to complete the VOTP, and what appears to be an improved attitude to resisting his urges towards violence, a more optimistic view might be taken of the risks associated with the defendant’s release than at an earlier time.

11. [44]

    However, having regard to all of the evidence, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

12. [45]

    In these circumstances, I must make an order appointing the psychiatrists or psychologists to conduct examinations and to furnish reports to the Court. Of course, although I must make an order appointing the psychiatrists or psychologists, I still have a discretion as to whether to make an ISO. In all the circumstances, I am satisfied that an ISO should be made.

13. [46]

    Despite some improvement in his attitude, the risk assessment evidence suggests that he still poses a high risk of reoffending.

14. [47]

    The primary issue between the parties relates to the conditions which should be imposed for the period of the ISO.

The conditions

1. [48]

   The defendant accepts that most of the conditions proposed by the plaintiff should be imposed. Annexed to this judgment is a schedule of conditions which I consider should be imposed. I will comment only on the conditions in dispute.

2. [49]

   The Court is permitted to impose such conditions as it “considers appropriate”: s 11 of the Act. That necessarily involves the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper: State of New South Wales v Ali. [4]

3. [50]

   The conditions must be related to the mitigation of the unacceptable risk: State of New South Wales v Burns. [5]

4. [51]

   The conditions must not be unnecessarily onerous. Further, they must address identified risk factors but must be considered in a realistic way: State of New South Wales v Ley Thomas Baker (No 2). [6]

5. [52]

   Any condition must have the capacity to reduce or mitigate the risk which is unacceptable rather than merely being a condition which may be more generally appropriate in respect of serious violent or serious sex offenders. Merely identifying the possibility that a particular condition might reduce or eliminate the risk without regard to the particular offender’s specific risk factors would not suffice.

Condition 4 – Electronic Monitoring

1. [53]

   The plaintiff proposes that the defendant be subject to electronic monitoring equipment. The defendant opposes that condition.

2. [54]

   In this matter, there is no evidence that any of the defendant’s prior offending, other than perhaps the index offence whilst committed in custody, was the result of any real planning. There is no evidence that the offending was associated with the defendant’s visits or habitation of any particular area or place. Further, there is no evidence that electronic monitoring would prevent the type of offending with which the defendant has been associated with previously.

3. [55]

   Unlike when considering serious sex offenders, risk mitigation does not require that the defendant be prohibited from entering certain places or venues such as schools or swimming pools.

4. [56]

   The plaintiff submits that electronic monitoring is one of several complementary conditions aimed at tracking and restricting risk behaviour or scenarios including seeking out drugs, gambling or attending locations where scenarios or risk of violence may be more likely.

5. [57]

   The purpose of electronic monitoring appears to be to identify after the event that the defendant may have frequented places where he might be involved in activities such as gambling.

6. [58]

   I do not consider that there is a sufficient nexus between the defendant’s risk factors and the need for electronic monitoring. The defendant accepts that he must be subject to a schedule of movements and other conditions which would regulate his behaviour and movement.

7. [59]

   I do not accept that electronic monitoring is justified merely on the basis that it might possibly alert the DSO to the fact that he might have attended places which might suggest that he has relapsed into gambling or drug-taking.

Condition 5 – Schedule of movements

1. [60]

   During exchange on the hearing, the defendant accepted that the condition requiring a schedule of movements should include “such plans should include any proposed attendance at licensed premises”. I will include that sentence in the condition relating to the schedule of movements.

Condition 16 – Place and travel restrictions

1. [61]

   Following exchange of submissions, the parties have agreed on a form of wording for Condition 16 as follows:

2. [62]

   I will include that agreed condition.

Condition 24 – Entering licensed premises

1. [63]

   I consider that the proposed addition to Condition 24 (not entering licensed premises without prior approval of DSO) should be made. It is important that in any discretionary exercise by a DSO, permission to attend at licensed premises not be unreasonably withheld. Condition 24 is to be amended to include:

Condition 28 – Disclosure of criminal history

1. [64]

   I agree with the defendant’s submission that the history of his offending and associated risk factors is impulsive violence. Disclosure of his criminal history to other persons in advance is more likely to be deleterious to his reintegration and prosocial activities than mitigate any risk. I disallow Condition 28.

Condition 34 – Access to the internet and other electronic communications

1. [65]

   It is perhaps difficult to link such a condition with mitigation of risk having regard to the defendant’s history of offending. The defendant’s offending does not involve the use of the internet or phones or any other similar devices. The plaintiff submits that such conditions are appropriate but because it is likely that the defendant will be able to learn to use such devices despite his lengthy period in custody, and that he is vulnerable to association with gangs and antisocial peer influence, this may be a way of tracking his activities.

2. [66]

   I accept that some form of the conditions are appropriate. It seems to me that the conditions proposed by the defendant, being Conditions 34, 35, 36, 37, 38 and 39, are not either unduly onerous or intrusive and afford an appropriate means by which there may be some form of supervision of the defendant’s use of such devices. In those circumstances, I have included the conditions proposed by the defendant.

Condition 45 – Search and seizure

1. [67]

   Again, the defendant has proposed an amended condition.

2. [68]

   The condition proposed by the plaintiff permits search and seizure of his residence, his vehicle, his computer and electronic devices and any storage facility without limitation or any pre-requisite for the DSO having a reasonable suspicion that such a search and seizure is necessary to reduce risk.

3. [69]

   I agree with the defendant’s submission that such a broadly worded condition is unduly onerous and I am not satisfied that it is necessary to reduce risk. Again, the defendant is not a serial sex offender. He has committed a number of acts of violence over the years.

4. [70]

   It is important to emphasise that the importance of the conditions is to address the risk factors associated with his offending. The conditions are not intended to address risks associated with any type of offending or any type of behaviour which might be viewed as anti-social.

Condition 48 – Personal details and appearance

1. [71]

   The defendant opposes the condition which prevents him from significantly changing his appearance without the approval of a DSO. It is a broadly worded condition. I am uncertain whether, for example, growing a beard or shaving off a beard would constitute a significant change in appearance. No doubt such a condition is designed to ensure that the defendant does not develop a means of avoiding detection if he is in places he should not be but, again, there is simply no evidence that this condition mitigates the risk in any way. None of his offending has been associated with any attempt to disguise his appearance and none of his risk factors are associated with offending which might be committed by persons endeavouring to attempt to disguise their appearance, such as loitering around schools or other places where certain types of offenders should not be.

2. [72]

   I disallow Condition 48.

Condition 53 – Disclosure of criminal history to treating and allied health service providers

1. [73]

   The defendant opposes such a condition. In State of New South Wales v Hardy [7] Harrison J said:

2. [74]

   The same might be said about this defendant.

3. [75]

   There is no evidence even remotely suggesting that the defendant is likely to be violent towards any health professional. There is no evidence which suggests that any health professional might, if having knowledge of the defendant’s criminal history, adopt some type of precautions which would reduce the risk.

4. [76]

   Condition 53 is amended as proposed by the defendant and Conditions 56 and 57 are deleted.

Orders

1. [77]

   I make the following orders:

   1. (1)

      Pursuant to s 7(4) of the Act:

   2. (2)

      Pursuant to s 10A of the Act, the defendant be subject to an interim supervision order from 11 July 2021 (“the interim supervision order”);

   3. (3)

      Pursuant to s 10C(1) of the Act, the interim supervision order be for a period of 28 days;

   4. (4)

      Pursuant to s 11 of the Act, I direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment; and

   5. (5)

      I order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.