State of New South Wales v Amohanga

In April 2015, McCallum J made examination and interim supervision orders against Mr Nico Amohanga under the Crimes (High Risk Offenders) Act 2006 (NSW), with his consent. Those orders were later renewed by her Honour and by Davies J. They expire on 6 July. Mr Amohanga was later granted parole and has been released pursuant to that grant. His sentence expires on 16 May 2015 and the State now seeks final orders, to which Mr Amohanga also consents, other than in two respects: a condition as to employment and the term of the final order.

The State seeks a final extended supervision order for a period of 5 years, on conditions proposed in an amended summons filed at the final hearing, which was further amended after discussions between the parties, during an adjournment. Mr Amohanga contends that the order should have a 3 year term and that there should be no order as to employment.

I am satisfied that the final order sought must be made on the terms pressed by the State, for the following reasons.

Under s 5E, an offender can be made the subject of a high risk violent offender extended supervision order if the offender is a high risk violent offender, who poses an unacceptable risk of committing a serious violence offence, if he or she is not kept under supervision. Mr Amohanga conceded that he is such an offender, having committed serious violence offences as defined in s 5A of the Act. That Mr Amohanga was such an offender was also established by the evidence led at the final hearing.

In May 2001, Mr Amohanga committed offences of robbery whilst armed, detain for advantage and inflict grievous bodily harm. He was then on parole which had been revoked, but he had not returned to custody. In July 2003, he was sentenced to an effective sentence of 6 years, with a non-parole period of 3 years, commencing in May 2001, for the detain for advantage offence. While serving that sentence, in November 2004, he was sentenced to 10 years imprisonment, with a non-parole period of 3 years, for the robbery and inflicting grievous bodily harm offence. On appeal, his sentence was increased to 12 years with a non-parole period of 8 years and 6 months.

It was also not in issue that Mr Amohanga was a supervised violent offender as defined in s 5J of the Act (see also the definitions of “violent offender” and “serious violence offence” in s 4 and s 5A). Section 9(3) of the Act specifies the matters, in addition to any other matter it considers relevant, that the Court is to consider on an application such as this to be:

Mr Amohanga has a considerable record of past serious violence from a very early age. He has a record of use of weapons, causing very significant injury to victims, and considerable ongoing drug abuse, as well as a gambling addiction. His offending is not all drug related. It also has an obvious sad connection with his family background.

Despite Mr Amohanga’s apparent successful participation in treatment programs while in custody in the past and the basis on which he was recently released under the interim order, Mr Amohanga’s ongoing high risk of returning to drug abuse was recently evidenced by his admitted use of ice, after release on the interim supervision order. There is also evidence that he considers that but for the conditions imposed upon him, his return to his past criminal behaviour on release, would have been assured.

Given the ongoing connection between Mr Amohanga’s violence and drug abuse, the basis for his concern is apparent. His recent ice use is a disturbing development which reveals Mr Amohanga’s lack of insight into the nature and extent of his drug problems and their connection with his offending behaviour in the past. The evidence established that the parties’ common ground as to the need for a final supervision order for Mr Amohanga has a firm basis. He requires the supervision which the final orders will impose upon him, if his conduct is to alter, so that his aim of not re-offending, remaining out of custody, as well as the community’s safety from his violent behaviour, are to be secured.

There is an unarguable need for the serious risk to the safety to the community which Mr Amohanga so clearly poses, to be addressed by supervision on the strict conditions proposed. He poses an unacceptable risk of committing a serious violence offence if not kept under such supervision, as he himself has acknowledged.

Accordingly, I am satisfied that final orders must now be made.

Mr Amohanga argued that a 3 year term was appropriate in his case, despite the views of Ms Howell and Dr Ellis, who both considered that 5 years was necessary in his case.

For Mr Amohanga it was explained that he considers the final supervision order to which he has agreed to be an additional form of support and assistance for his reintegration into the community. Since his release from custody, Mr Amohanga has told those who examined him that he has a need to avoid drugs and address his addiction to illegal drugs, to avoid future criminal activity. It was submitted that under the interim supervision order, he has made progress in terms of insight and changes to his behaviour and attitude, despite difficulties.

Mr Amohanga is receiving required psychological treatment as part of the Violent Offenders Treatment Program (VOTP). That and his positive attitude to the supervision orders was relied on as supporting the conclusion that the final order would not be made initially for the full extent of the maximum term. The view was urged, consistent with the approach to civil liberties discussed in cases such as State of New South Wales v Scerri [2012] NSWSC 271 and Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170, that a period of 3 years was adequate.

That, it was submitted, would permit assessment of whether extension of the order was required, in circumstances where Mr Amohanga’s insight into his problems and desire to address them were submitted to have been revealed by his consent to the order, as well as by him not having hidden his recent “stumbles”, including his consumption of ice and with matters such as those with whom he was associating.

The State’s attitude was that all of the evidence as to Mr Amohanga’s long term problems, which he himself had accepted would take him a lifetime to address, pointed to a need for 5 years supervision. His requirements were submitted to be complex and would not be speedily addressed, particularly his longstanding drug problems.

I am satisfied that the evidence compels the conclusion that the State’s case must be accepted.

Mr Amohanga was examined by Dr Ellis and Ms Howard, as had been ordered. Their reports and other information as to what had transpired, both before and after Mr Amohanga’s release from custody are in evidence. Mr Amohanga has enrolled in a VOTP in the community, and is now receiving methadone treatment, but is unemployed.

The reports reveal that Mr Amohanga is of Maori ethnicity. He comes from a large, loving family which had relocated to Queensland, but he experienced his father’s alcohol abuse and domestic violence as a child. As a 12 year old, he attacked a teacher with a knife, in revenge for perceived mistreatment and assaulted other students for racial remarks about he and his sister. He left home at 15 to live with other family members and has never obtained a vocation. His longest period of employment was for one month.

As a teenager, Mr Amohanga had 13 charges for stealing and assault, not all of which resulted in convictions. His adult record includes robbery offences, including while armed and in company as well as assaults, driving offences, break and enter offences, threatening witnesses and destroying and damaging property.

Mr Amohanga’s May 2001 offences involved a victim being lured to a flat under pretext that a prostitute was going to have sex with him. He was attacked, beaten mercilessly until unconscious by the offenders, including Mr Amohanga, who was armed with a 4 foot long iron bar. Mr Amohanga’s offence was found to have involved gratuitous cruelty, leaving the victim with multiple injuries, including scalp lacerations exposing his brain, fractures and haematoma, as well as a severe brain injury, leaving him unable to communicate in English and with serious physical and mental impairments. He will require life long support with basic care, will be unable to work and has been left suffering psychotic depression and post traumatic epilepsy. His wife and children have left him as a result.

Mr Amohanga’s other offending in May 2001, of detain for advantage, involved hitting a victim who had attended a party with a pole and holding him captive for up to 13 hours, during which he was assaulted, threatened and money was extorted from him or his parents.

The evidence also revealed that Mr Amohanga has a very poor record of compliance with parole, even before these offences were committed in 2001. In custody he has a long history of institutional misconduct, including property damage, assaults and threatening behaviour towards staff and other inmates. Mr Amohanga has denied problems with alcohol, but accepts that he has serious ongoing drug and gambling problems and that the index offences were drug related, committed to support his drug habit.

A risk assessment report prepared by Dr Kobylinska, a senior clinical and forensic psychologist with the Serious offenders Assessment Unit of Corrective Services in December 2014 was in evidence. So, too, were other psychologist reports dating back to 1995 from Mr Taylor, from Ms Robilliard (2003) and from Ms Murray and Ms Thomas (2012).

Dr Kobylinska’s report outlined Mr Amohanga’s offending history, which included institutional misconduct for drug related offences and assaults. She assessed him to present a high risk of violent reoffending relative to other male offenders. Earlier assessments in 2004, 2010 and 2011 had placed him into the medium to high risk. He was also assessed to be in the high risk category on the Violence Risk Scale. He had earlier fallen into that category in 2013, but his 2015 testing resulted in a slightly lower score.

In past custody, Mr Amohanga has participated in a range of rehabilitation programs, including the 14 week Violence Prevention Program completed in 1998, where he achieved positive assessment. Despite this, he committed the index offences in 2001.

In 2005, Mr Amohanga commenced the 12 month residential VOTP, but was discharged in September 2005 because he assaulted a yoga teacher. He has also undertaken substance abuse programs between 2011 to 2104. In January 2013, he commenced another VOTP medium-high intensity program, where he failed urinalysis and was suspended after assaulting another inmate. After another failure to provide a urine sample, he was placed on a strict case plan and finally completed the program in December 2014. In January 2015, he attended a VOTP maintenance session.

Dr Kobylinska identified a range of dynamic risk factors present in Mr Amohanga’s case, including his violent lifestyle, criminal attitudes, interpersonal aggression, emotional control, violence during institutionalisation, insight into violence, weapon use, substance abuse violence cycle and impulsivity, amongst other factors. She considered Mr Amohanga’s insight into his violence to be poor, he considering that his offences to have been drug related and that he did not need to work on issues related to violence in the VOTP. She concluded that while he accepted that he had problems in some areas and had begun to address them, Mr Amohanga was at an initial stage and that whether he could achieve permanent change was unknown.

Dr Kobylinska considered that positive changes had been relatively recent. She concluded that he did not appear to be at high risk of committing an act of the same severity as his most recent offences, but access to weapons and drugs were likely to increase the severity of any harm caused during any violent episode in which Mr Amohanga became involved.

The February 2015 Community Corrections risk management report outlined Mr Amohanga’s post release plans, including residence at Nunyara Community Offender Services and adherence to Dr Kobylinska’s management plan.

Dr Ellis interviewed Mr Amohanga in May. Whether there would be further violent offending, could not be determined, but Dr Ellis considered that Mr Amohanga posed a high risk of violent reoffending, given his history of serious violence beginning in childhood, accompanied by persistent anti-social behaviour, substance abuse associated with violence, limited employment or study, clinical diagnoses and limited insight into his propensity for violence. Of concern was that Mr Amohanga continued to hold attitudes which covertly support violence as a legitimate means of problem solving. He also had ongoing problems with stress, engaging in treatment, limited personal supports and accommodation exposing him to ongoing association with criminal associates.

Dr Ellis’ noted Mr Amohanga’s history of cannabis use, intravenous speed on one occasion, intravenous use of cocaine for 2 years, which led to the development of persecutory disorder and resulted in increased anger, which in prison had led him to assault prison officers. He had also used heroin for 2 years, including while in custody, as well as buprenorphine, which had ceased when he began methadone use.

Of very considerable concern was Mr Amohanga’s report that one week before assessment that he had used the drug ice intravenously, when offered it by a mate. Dr Ellis noted that he described the pressure he felt on release from prison and wanting to express his independence. Mr Amohanga had reported this use to his supervising officer and was awaiting the results of urinalysis, but did not want it to inhibit his rehabilitation.

Despite this, Mr Amohanga told Dr Ellis that he believed that he could co-operate with the conditions imposed upon him by the extended supervision order, that he found his ESO worker helpful and that he considered the support provided under the order to be of potential benefit to him. Those, I accept, are positive developments, but have to be considered in the light of Mr Amohanga’s reported ice use and the explanation he gave for the decision to experiment with what on his history appears to be a new drug.

Dr Ellis also noted Mr Amohanga’s record, which included 68 institutional charges between 1994 and 2014 for assaults on staff and inmates, threats and drug use, with a weapon possession and assault charge in 2014. He also considered that Mr Amohanga had ongoing treatment needs, which would require 5 years to complete through pursuit of drug rehabilitation programs. Mr Amohanga described to him the motivation for his past offending to have been to fund his drug habits and to have resulted from his criminal associations. He also described assaulting people by surprise and carrying a knife and pistol for self-protection.

Dr Ellis considered that Mr Amohanga suffered from an anti-social personality disorder, substance abuse disorder, which had resulted in recent relapse, a gambling disorder and new onset depressed mood, but that he had no intellectual disability or neurocognitive dysfunction. He noted that Mr Amohanga’s methadone treatment needed review, given his deteriorating mood and the stress of adjustment to his release, reports of his record being motivated by associating with criminal friends and to fund drug habits, stupid choices and violent crime being an easy way to make money. Dr Ellis considered that supervision for 5 years to be reasonable, in order to improve function in the community and risk management.

Dr Ellis also considered that given Mr Amohanga’s diverse pattern of violence and history of carrying weapons, he had multiple potential victim types. His psychiatric disorders were chronic and likely to persist beyond any period of supervision, requiring ongoing treatment, as did his addictions. He requires specific treatment and supervision to reduce the risks he poses, which were addressed in his treatment and supervision plan, with residential rehabilitation, if available, considered to be potentially effective, given his chronic substance abuse problems. Dr Ellis concluded:

In submissions the problem confronting Mr Amohanga in gaining admission to residential programs, given those who he would potentially have to associate with there, were outlined.

Ms Howell also had a lengthy interview with Mr Amohanga in May 2015, after he had failed to attend two earlier interviews, the first because he was incorrectly informed of the date. She also concluded that Mr Amohanga poses a high risk of re-offending.

Her report noted his contact with a Restorative Justice Program and agreement to apologise to his victim’s family, as well as an approach to the Maori Culture Group, with support from a counsellor.

Mr Amohanga told Ms Howell that his primary addiction had been gambling, having developed that habit before he left school at 15. To her he denied injecting illicit drugs, but described smoking heroin and cocaine. He said that he was pursuing methadone treatment with the aim of becoming drug free. He also told Ms Howell, however, that had tried ice the previous week, which he considered was “not for him”. Ms Howell considered his drug addiction was an established criminogenic risk for Mr Amohanga.

To Ms Howell, Mr Amohanga described feeling shame at his past offending, a willingness to change and not to reoffend, so that he did not return to prison. She also considered his recent use of ice to be of concern, however, as was his failure to have attended the earlier assessment with her, for reasons of frustration which he had described to her. Ms Howell also considered that Mr Amohanga required considerable support, which might be available in a residential drug rehabilitation program, through AA or the Maori Culture Group, but that if he adhered to the conditions of the extended supervision orders sought by the State for a period of 5 years, he could be managed in the community. She considered this period was necessary to allow Mr Amohanga to complete drug rehabilitation and have a realistic possibility of using strategies and skills which he would acquire through the VOTP program.

Ms Howell considered Mr Amohanga’s degree of insight and intellectual functioning, adverse life events in his childhood, and adolescence, current drug addiction, ongoing risk of poor self regulation and impulse control and his capacity to make consistent practical decisions. In her view, his current addictions and recent ice use had the potential to increase his risk of reoffending and required treatment by long term rehabilitation programs, as well as peer and social support programs.

On all of that evidence, I was satisfied that the term of the order must be for 5 years.

That recently, while at liberty under the terms of the interim order and subject to the stringent conditions to which he consented, at a time when he repeatedly professed a desire for change, remorse about his past behaviour and the drug abuse which is so closely associated with his violent offending, he experimented with the dangerous drug ice, a drug well known for its connection with violent behaviour, unarguably tilted the balance towards an order for the maximum 5 year term available, in Mr Amohanga’s case.

Mr Amohanga properly accepted that the community must be protected from the unacceptable risk of committing a serious violence offence, if he is not kept under supervision, which he so clearly poses. His ongoing drug taking and violent behaviour in custody, when considered with his recent drug taking, so soon after release on the interim order, does not leave available the conclusion which he urged, in the balancing exercise which must be undertaken when an application such as this is determined.

If Mr Amohanga is able to achieve an outcome where, after 3 years, he no longer requires the supervision which is now to be imposed upon him, the order may be varied on application to the Court. That will require further change on his part. On the present evidence, it is apparent that the support he receives from the conditions of his supervision, is support which he will require for longer than the 3 years which he proposed, if the community is to be protected as it needs to be, from the unacceptable risk that he will engage in further serious violent offending in the future.

Condition 19 provides:

Mr Amohanga objects to the requirement imposed upon him by this condition, to accept employment. This was argued to involve an interference in his basic civil rights unwarranted in other than exceptional circumstances, as discussed by Adams J in State of NSW v Anthony Joseph Russell [2015] NSWSC 488 at [33]. There his Honour was dealing with a serious sex offender and observed:

In this case, I consider that the State’s case has to be accepted, given the evidence I have earlier discussed.

Mr Amohanga has had limited employment or training and the longest period he has ever worked in the past is for one month. He is now aged 40. He appears to have funded his past considerable drug consumption and gambling addiction by his violent offending. He now professes to desire to pursue a normal life, including employment, but is concerned that if offered employment in the future, which he refuses, he will be at risk of being returned to custody, for breach of this condition.

Notwithstanding that this fear has a legitimate basis, I am satisfied that in Mr Amohanga’s case, given his history and the serious risk of violent re-offending which he poses, that the dignity, occupation, income and other benefits which employment would so obviously provide him, means that the cost of subjecting himself to the requirements which employment carries with it, is one which he must bear.

In the past, Mr Amohanga has not assumed those requirements voluntarily, but for the briefest of periods. They, however, are ones which functioning adults in our society generally assume as a matter of course, throughout their lives. Mr Amohanga seeks to become such a person, living a normal life in the community. In his circumstances it seems to me that this condition is a very important one, if he is to achieve his aims and the community is to be protected from his propensity for very violent offending, as it so clearly needs to be.

The condition is not onerous or oppressive in all of Mr Amohanga’s circumstances and particularly important in his case, to help him avoid reoffending, if he is unable to find employment himself. A similar conclusion was reached in State of NSW v Boatswain [2014] NSWSC 1446 by Davies J, for reasons discussed at [77].

It is for these reasons that I am satisfied that this condition must be imposed.

For the reasons given, I order that: