State of New South Wales v Turk

1. [1]

   The State of New South Wales seeks an Extended Supervision Order in respect of the Defendant on the basis that he is a high risk violent offender. The Summons originally sought that the order be in place for two years. However, in the light of the evidence given by the two experts (a psychiatrist and a forensic psychologist) appointed to examine the Defendant, the Crown sought to amend the order to seek a period of five years. That amendment was not opposed by the Defendant and I granted leave to the Plaintiff to amend the Summons in that regard.

The index offence

1. [2]

   The Defendant was found guilty by a jury on 12 October 2000 that he murdered the victim at Nyngan on 11 March 1999. At that time the Defendant was aged 30 having been born on 28 November 1968. He was sentenced by Bell J on 13 October 2000 to a term of 18 years’ imprisonment commencing on 12 March 1999 with a non-parole period of 14 years: R v Turk [2000] NSWSC 1071. An appeal against his conviction was dismissed by the Court of Criminal Appeal: Regina v Turk [2001] NSWCCA 547.

2. [3]

   The circumstances of the murder may be summarised as follows. The victim and the Defendant were known to one another and there had been animosity between them. Approximately a month earlier the victim had approached the Defendant in a car in which the Defendant was seated. The victim pulled him out of the car and assaulted him. Justice Bell accepted that this was an unprovoked attack by the victim on the Defendant.

3. [4]

   On the day of the murder the Defendant was at the home of a woman with whom he was having a relationship. Whilst he was there the victim arrived at the premises. Although the Defendant ran and attempted to hide from the victim, the victim chased the Defendant and assaulted him. After the deceased obtained a knife and threatened the Defendant, the deceased left the house.

4. [5]

   Later that night the Defendant went to premises where he had ascertained the deceased was staying. He was armed with a knife and he stabbed the deceased a number of times in the chest. One of the stab wounds severed the deceased’s pulmonary artery and, as a result, the deceased died almost immediately.

5. [6]

   Justice Bell made three significant findings. The first was that she was not satisfied to the requisite standard that the Defendant had formed an intention to kill the deceased at the time he stabbed him. Secondly, her Honour found that despite the antagonism between the two men she did not find that the Defendant had been planning to exact revenge on the deceased over the period. Rather, the Defendant’s decision to stab the deceased was arrived at relatively shortly, probably less than half an hour, before it was carried into effect. Thirdly, her Honour also found that the Defendant exhibited no remorse for the offence and maintained that the killer of the victim was in fact someone who occupied the premises where the deceased died.

6. [7]

   Her Honour assessed the killing as objectively very serious.

Legislation

1. [8]

   The Crimes (High Risk Offenders) Act 2006 (NSW) relevantly provides:

2. [9]

   Section 5A defines a “serious violence offence”. That section provides:

3. [10]

   Section 9(3) lists the matters to which regard must be had in determining whether or not to make an Extended Supervision Order. That sub-section provides:

4. [11]

   In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court said:

5. [12]

   What amounts to an “unacceptable risk” in s 5E(2) was explained in Lynn v State of New South Wales [2016] NSWCA 57 as follows:

6. [13]

   Justice Gleeson said in Lynn:

The Defendant’s criminal history (s 9(3)(h))

1. [14]

   The Defendant’s offending began when he was about 13 years old. It first consisted of property offences but on 13 March 1985 he was given a suspended committal to an institution for 18 months for assault and rob.

2. [15]

   Other offences of violence include assault occasioning actual bodily harm (1985, 1993 and 1995), assault and rob (1985), malicious injury (1987) and, significantly, attempting to discharge a loaded firearm with intent to prevent apprehension. For that offence, which involved him attempting to fire a rifle at police officers, he was sentenced to imprisonment for eight years in 1989 with a non-parole period of five years.

3. [16]

   It may be accepted that none of the prior offending falls within the definition of a serious violence offence but the offence of attempting to discharge the loaded firearm must be regarded as significant because if the Defendant had succeeded in what he was attempting to do the result may have been death or grievous bodily injury to the police concerned. It is, therefore, necessary to summarise the circumstances of this offence.

4. [17]

   On the evening of 31 August 1988 the Defendant was drinking at a hotel in Nyngan with two friends. A dispute broke out between them when the Defendant noticed a woman he was with talking to another man. He punched her, took her by the throat and shook her. The other friend tried to intervene but the Defendant pushed her to the floor where she hit her head as she fell. The publican’s wife went to break up the fight but the Defendant pushed her to the floor causing her some bruising and an injury to the wrist.

5. [18]

   The Defendant then left the hotel by a side door kicking in three glass door panes as he left. He went to the nearby home of one of the friends he had been with and took possession of a .22 calibre single shot Lithgow rifle and a quantity of ammunition.

6. [19]

   The licensee of the hotel and his son walked towards the house which was behind the hotel. The Defendant came out into the lane way and pointed the rifle at the publican and his son saying “come and make my day”. The Defendant admitted in the sentence proceedings that the rifle was loaded at the time and that he intended to use it to shoot the publican because he and his son were coming after him.

7. [20]

   The police had been notified and two police officers came to the hotel. The Defendant ran across a street and discharged the rifle into the air. The police saw him and followed him to the railway goods yard. The Defendant then attempted to fire the rifle into the air but it failed to discharge. He re-cocked the rifle, stood up and pointed it at one of the police officers and said, “Here I fucking am, what are you going to do about it?” He again pulled the trigger but for the second time the rifle failed to discharge. The police withdrew to a position of safety and the Defendant attempted to fire another shot into the air but again the rifle failed to discharge. After some negotiations the Defendant threw the rifle down and invited the police to “blow him away”.

The Defendant’s time in custody

1. [21]

   During the sentence for murder the Defendant incurred the following breaches of prison discipline:

2. [22]

   The Defendant was released on parole in October 2014. He breached his parole conditions in April 2015 as a result of a urinalysis showing that he had ingested methamphetamine. His parole was revoked on 13 April 2015. He was again released to parole on 11 November 2015 but another urinalysis during that time showed that he had again ingested methamphetamine. That parole was revoked on 6 May 2016. He thereafter served out the balance of his sentence which concluded on 16 March 2017 (s 9(3)f)).

3. [23]

   After the Defendant was returned to custody he somewhat reluctantly commenced involvement in the Intensive Drug and Alcohol Treatment Program (IDATP). During part of the program he mentioned to facilitators on various occasions that he was considering self-discharging from the program due to lack of motivation and difficulty with managing his drug use. However, he continued with the program although he failed to attend four group sessions. During the program he was subjected on 37 occasions to drug testing. There were a total of 11 negative samples, four failures to attend, one occasion of failing to supply a sample and 21 occasions of positive samples for either Buprenorphine, methamphethamine/amphetamine or morphine, or a combination of those substances. Buprenorphine was the primary substance detected.

4. [24]

   The conclusion of the senior psychologist was that the Defendant’s motivation to address his drug use continued to be poor. She said:

5. [25]

   In the meantime these proceedings were commenced. They came before Rothman J for the making of an Interim Supervision Order. On 10 March 2017 Rothman J granted an Interim Extension Order which has been renewed three times and expires on 15 June 2017. His Honour also ordered that the Defendant be examined by two experts being a psychiatrist and/or a psychologist. Pursuant to those orders the Defendant was examined by Dr Andrew Ellis, a forensic psychiatrist, on 9 May 2017 and by Mr Patrick Sheehan, a forensic psychologist, on 1 May 2017.

Expert reports (S 9(3)(b), (c), (d) (e))

1. [26]

   The Defendant was interviewed by Dr Richard Parker, a senior psychologist with the Serious Offenders Assessment Unit, on 24 August 2016. Dr Parker said that the Defendant had been assessed on three risk assessment instruments during 2016. The first of these is known as the Level of Service Inventory – Revised (LSI-R). This is an actuarial risk instrument consisting of both static and dynamic risk factors related to general reoffending. It is said to be a good predictor of general reoffending but a modest predictor of violence.

2. [27]

   When the Defendant was last administered that instrument on 4 February 2016 he scored 36 out of a possible 54. On that basis he was assessed as medium/high risk with 67% of offenders who were assessed as medium/high risk of reoffending and returned to custody within two years.

3. [28]

   Dr Parker administered a second instrument known as the Violence Risk Appraisal Guide – Revised (VRAG-R). This is an actuarial risk assessment tool specifically developed to assess the risk of violence for serious offenders. It assesses static risk factors to provide a probability of an individual’s risk for violent (including sexually violent) offending over longer periods of time.

4. [29]

   The Defendant’s score was equal to or higher than the score of 87% of the construction sample. That placed him in the eighth of nine “bins” which would classify him as a high risk compared to other serious violent offenders. 58% of violent offenders with a similar score reoffended violently within five years and 78% within twelve years.

5. [30]

   Dr Parker also administered an instrument called a Violence Risk Scale (VRS) on 5 August 2016. That is an actuarial risk assessment tool specifically developed to assess the risk of violence for forensic clients. It assesses both static and dynamic risk factors over the life-course to provide a probability of an individual’s risk for violence.

6. [31]

   The Defendant’s score was classified as moderate risk and was similar to a group of offenders that had a violent recidivism rate of 34.5% after 4.4 years at risk.

7. [32]

   Dr Parker then discussed the three instruments and concluded as follows:

8. [33]

   Dr Parker noted that the Defendant had participated in a number of programs during his sentence. These included Think First – a cognitive program that aims to teach offenders skills needed to desist from offending; the Personal Effectiveness Program – a preparatory program for offenders entering the Violent Offenders Therapeutic Program (VOTP) in both 2002 and 2006; an Anger Management Program and the Getting SMART Program.

9. [34]

   Dr Parker noted that since completing the VOTP the Defendant had engaged with the VOTP Maintenance and Outreach team.

10. [35]

    Dr Parker noted that the Defendant grew up in an area where substance abuse and violent behaviour was relatively common. Once he was introduced to substances his use quickly became problematic. He noted that the Defendant’s acts of violence had generally occurred in the context of substance abuse. He noted that, whilst the Defendant appeared to have some intention to avoid returning to his old lifestyle, his repeated use of amphetamines while on parole suggested that he either lacked the desire or the skills to carry that out.

11. [36]

    Dr Parker’s conclusion was that the Defendant was at high risk of further violent offending and that he would need an extended period of strict monitoring to implement and consolidate the skills and attitudes he learnt in the IDATP.

Dr Ellis

1. [37]

   The Defendant told Dr Ellis that he started drinking alcohol at the age of 13 and would often drink four days out of every week. He said that he would black out and could not recall events that happened while drinking. He would often fight when he was intoxicated with alcohol.

2. [38]

   He said he began smoking cannabis at the age of 16 but ceased doing so some 25 years ago. Between the ages of 30 and 32 he said that he injected speed and ice, and used heroin intravenously in those years.

3. [39]

   In relation to his criminal history he said that he could not remember it. He said also that he could not remember committing the murder other than that it happened at night. However, he did not dispute the facts as set out in Bell J’s judgment which I have earlier summarised.

4. [40]

   Dr Ellis diagnosed him as suffering from a mild neurocognitive disorder, an anti-social personality disorder and a substance use disorder.

5. [41]

   When considering the risk of the Defendant committing a further serious violence offence Dr Ellis said that actuarial measures such as the V-RAG or structured professional judgment tools such as HCR-20 V3 or VRS are able to allocate individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons who have reoffended. He said the difficulty with this approach was that it did not discriminate between those in a particular risk group who do reoffend and those who do not. There was no particular advantage to actuarial scales over structured professional judgment scales but both were superior to unaided clinical impression. The scales tended to identify more correctly low risk groups who do not offend rather than high risk groups who do go on to offend.

6. [42]

   Dr Ellis said that in reaching his opinion he had made reference to the HCR-20 V3 structured professional judgment tool. That tool identifies historical, largely unchangeable factors associated with violence risk, current clinical factors and anticipated future risk management items which are more amenable to change. He said there was a strong correlation between the HCR-20 V3 and the VRS which was used by Dr Parker in terms of violence risk prediction. He said those tools aided in the identification of fluctuating risk factors which moderate overall risk. Dr Ellis said that the Defendant’s history including his criminal record, problems in relationships with short lived intimate relationships, the poor record of sustained employment and serious substance abuse all indicated a high loading of historical risk factors associated with violence in the longer term compared to the general prison population.

7. [43]

   In relation to the Defendant’s position when Dr Ellis assessed him, Dr Ellis noted that he displayed limited insight into his propensity for violence and little understanding of the need for treatment and management. He said that the Defendant’s claim of amnesia for his offences was at odds with prior performance in the VOTP. He showed instability of mental state in the form of affective and cognitive instability (ambivalence, anger, stress and avoidance) in response to rehabilitative programs, particularly the IDAPT. Dr Ellis said that the Defendant had used substances in response to instability whilst in custody and in the community, and had not identified a strategy to control his emotional response and manage associated stress. All of these matters indicated a moderate to high loading of modifiable risk factors that rendered internal control of base line historical risk problematic.

8. [44]

   Dr Ellis said that anticipated future problems associated with violence were limited personal community supports, likely problems consistently engaging in treatment and supervision indicated by substance abuse and other infractions in custody, together with likely subversion of rehabilitation and the problems coping with stress. Dr Ellis said that there was some evidence that his pattern of potential for violence had reduced with age but that conclusion was tempered by the fact that the Defendant had been subject to supervision or custody at all times since the index offence.

9. [45]

   Dr Ellis said that the most likely violent acts would be impulsive and without weapons. In the absence of any treatment or supervision the Defendant would fall into a group of persons with a risk for violent offending that is statistically high in frequency with potential for serious consequences in his specific case and greater than a theoretical average offender. Specific treatment and supervision would likely reduce that risk.

10. [46]

    Dr Ellis thought that the treatment and supervision plan in the Corrections Risk Management Report generally addressed the relevant risks posed.

11. [47]

    Dr Ellis thought that from a psychiatric risk management perspective a period of five years’ supervision was reasonable. A period of three years would be required to consolidate stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community with a further 24 months of regular programmed activity coupled with regular review of medication as prescribed.

12. [48]

    Finally, Dr Ellis noted that substance use was clearly a factor of concern associated with the violent offences and the general offence history. Dr Ellis thought the Defendant required psychosocial substance use treatment and monitoring, and referral to a forensic psychiatrist experienced in prescribing medication in the Defendant’s population.

Mr Sheehan

1. [49]

   Mr Sheehan’s lengthy and detailed report is adequately summarised in the Executive Summary at the beginning of the report. That summary relevantly provides:

2. [50]

   Mr Sheehan was the only one of the three experts who specifically considered the risk of the Defendant committing a serious violence offence as defined in the Act. In that regard he said this:

3. [51]

   I note also, in the light of the Defendant’s criticism of the experts for their heavy reliance on historical or static factors, Mr Sheehan dealt extensively in his report with the dynamic risk factors (paragraphs 60-80) and he found a number of those dynamic factors to be positive in the Defendant’s favour.

Submissions

1. [52]

   The Defendant submitted that the Court would not be satisfied to the requisite high degree of probability that he poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. The Defendant pointed out that he had committed only one serious violence offence and his record in prison was good. He had completed a number of appropriate courses and had committed no offences of violence whilst on work release (prior to his parole period) or when he was released on parole.

2. [53]

   The Defendant submitted that the way the experts had relied on the various protocols was flawed and pointed particularly to the failure of the experts to give sufficient weight to the dynamic factors, many of which were positive for the Defendant. The Defendant submitted that too much emphasis was placed on historical matters, particularly in relation to alcohol, where the Defendant had not drunk alcohol for the 18 years he was prison or when he was on parole or more recently on the Interim Supervision Order.

3. [54]

   The Defendant submitted that the material, particularly from Corrective Services, showed that he has developed insight into his problems and particularly into the problems that alcohol had caused in the past.

4. [55]

   The Defendant submitted that the analyses of the experts so far as they were was based upon statistical evaluation and the protocols related to general reoffending and violent offending as distinct from serious violent offending as the Act requires. The Defendant submitted that the sort of offences that constitute offences of serious violence make up a very small part of criminal offending and the risk of him getting involved in an incident that would escalate to that extent must be regarded as a remote risk.

5. [56]

   The Defendant submitted that the experts had approached the matter on the basis of whether supervision would be of some therapeutic benefit to him or whether it might remove whatever risk does exist. The Defendant submitted that that was not the appropriate approach in order to comply with the test set out in the Act.

6. [57]

   The Defendant submitted that little or no consideration had been given to the family support that he had both from his own partner and her children and his brothers and sisters. That support is demonstrated, it was submitted, in the case notes both before his release to the ISO and during the time he has been on the ISO.

Should an Extended Supervision Order be made?

1. [58]

   I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. My reasons for that satisfaction follow.

2. [59]

   First, it may be accepted that the Defendant has committed only one serious violence offence being the index offence. In relation to that offence I have regard to what Bell J said in Turk at [23]:

3. [60]

   Secondly, although the offence of attempting to discharge a firearm with intent to avoid apprehension is not strictly a serious violence offence, I cannot ignore the fact that (as I noted earlier) if the Defendant had succeeded in what he was attempting to do his actions may have then amounted to a serious violence offence. The position is, therefore, that the prisoner has committed or attempted to commit two offences which would have constituted serious violence offences.

4. [61]

   The circumstances of that offence are enlightening because they show the extent to which the level of violence employed by the Defendant could escalate so quickly and to such a point that he would discharge a firearm at a police officer who was endeavouring to apprehend him. In many ways, this offence points more clearly to the risk with which I am concerned, and to how unacceptable that risk is, than the index offence where the victim had twice, without provocation, assaulted the Defendant. This offence, and the circumstances surrounding it, also bear out Dr Ellis’s view that the violence that the Defendant may perpetrate is likely to be impulsive but, as with the index offence, it shows that the Defendant is prepared to use weapons if they are available. This is a matter very relevant to the safety of the community. s 9(3)(a))

5. [62]

   Thirdly, the Defendant has a lengthy criminal record commencing at the time he was almost aged 14 years. That criminal history contains a number of offences of violence, although I accept that they were not serious violence offences, commencing when the Defendant was 16 years of age. I accept also that the unacceptable risk is not one of merely committing offences of violence but I am required to take into account the Defendant’s criminal history and any pattern of offending behaviour disclosed by the history (s 9(3)(h)).

6. [63]

   Fourthly, there is no doubt that the Defendant was a heavy user of alcohol, that his use in that regard forms part of the basis of the diagnosis of substance use disorder, and that alcohol was related to a great deal of his offending and particularly his violent offending.

7. [64]

   The Defendant placed much weight on the fact that he has not consumed alcohol since going into custody for the index offence some 18 years ago, and to his stated intentions with regard to alcohol consumption in more recent times. Although his abstinence must be taken in his favour, there is no similarity between the conditions under which the Defendant lived in custody as far as the availability of alcohol is concerned and his circumstances living in the community where alcohol is freely available.

8. [65]

   Even if I accept that the Defendant has an honest intention not to consume alcohol in the future, given that his substance use disorder has not been resolved there remains a risk that he will not be able to maintain the intention he now expresses. His use of methamphetamine twice while on two separate periods of parole supports that view. None of the expert witnesses considered that the risk of resorting to alcohol had been removed by the Defendant’s abstinence and his stated intention not to consume alcohol.

9. [66]

   Fifthly, the three experts were all of the opinion that the Defendant was at least a medium to high risk of committing further offences of violence if he was released without supervision and two though he was a high risk (s 9(3)(b) & (c)). Whilst only one of those experts, Mr Sheehan, expressed the risk in terms of the Defendant committing a serious violence offence, Dr Parker pointed out that the same behaviour involving violence on the part of the Defendant might or might not amount to a serious violence offence depending on the circumstances in which the events unfolded. There is some justification for that view. As Dr Parker pointed out, a one punch attack on a person might only result in what the criminal law would constitute an assault, it might constitute a more serious form of assault or it might constitute a serious violence offence because grievous bodily harm occurred or indeed death. In that way there is only a fine line between violence and the violence which the law designates as a serious violence offence. The two things are quantitatively not qualitatively different.

10. [67]

    Moreover, although Dr Ellis’ conclusion was that the Defendant would fall into a group of persons with a risk for violent offending that was statistically high in frequency he added that the offending had potential for serious consequences in his specific case.

11. [68]

    Although the Defendant was critical of Dr Parker for preferring the VRAG-R over the VRS I do not think that this makes much difference to the ultimate outcome. There is no doubt that Dr Parker considered dynamic factors which the VRAG-R does not consider but his report did not indicate that he did not have regard either to the results on the LSI-R nor the VRS. Further, Mr Sheehan’s different emphasis, and very detailed consideration of the dynamic factors, led him to the conclusion that the Defendant was within the medium to high risk category. Even if the Defendant’s criticisms of Dr Ellis’ assessment are taken into account, including his recording of factors such as weapon carrying and threat use in institutional charges, and a more positive slant is given to his consideration of dynamic factors, the risk of further violent offending is still medium to high.

12. [69]

    Sixthly, quite apart from the conclusions of the experts, two of the instruments used to assess the Defendant rated him at medium/high and high risk of offending (s 9(3)(d)). Dr Ellis accepted that the various protocols and tools at a group level only predict a defined violent outcome which is usually a conviction for violence. But he went on to say that it is the same factors that predict violence that predict the offender’s version of serious violence (at T15). That was a similar view to that expressed by Dr Parker (at [66] above).

13. [70]

    The Defendant was critical of the heavy reliance on the instruments partly because they gave too much emphasis to static factors, partly because they did not provide risk assessments for serious violence offences as opposed to violence generally, and partly because, as the experts acknowledged, they used a statistical base to predict reoffending rather than dealing with the individual. In that regard it is worth quoting what Mr Sheehan had to say in his report about these instruments:

14. [71]

    Seventhly, there is no doubt that the Defendant’s substance use disorder remains (s 9(3)(i)). Not only were there the two occasions when he was released to parole that he was detected as having used methamphetamine, account must be taken of the numerous occasions during the IDAPT when the Defendant returned positive samples for various drugs, his failure to supply a sample and failures to attend.

15. [72]

    The drug use whilst on parole and during his time in custody whilst undertaking the IDAPT not only demonstrate that the substance use disorder is ongoing but is a concern because of what it demonstrates about co-operating and following rules. In that regard, Dr Ellis gave this evidence (at T11-12):

16. [73]

    In relation to the ongoing use of drugs Dr Ellis said that if drug use was detected early and there is able to be an intervention, one can act in a way that reduces the risk of violence. If early detection is not possible the pattern of drug use could accelerate. He said substance use is a general risk factor for violence.

17. [74]

    Mr Sheehan agreed that if the Defendant was left unsupervised there was a fair likelihood that his methamphetamine use would increase and become chronic and there would be cumulative effects that went towards risk of violence (at T28). Mr Sheehan said also in relation to both the Defendant’s use of alcohol and drugs that the Defendant’s time on parole indicated that the three month mark after release from custody appeared to be the time the Defendant was most likely to fail in any resolve to be abstinent if he was not supervised. The unannounced home visits and the requirement for drug and alcohol testing in the conditions of supervision were likely to minimise the risk in that regard.

18. [75]

    Two further matters should be mentioned in the light of the Defendant’s submissions. The first relates to the insight the Defendant is said to have developed into his condition. I accept that in some of the material (Ms Haddad for example) reference is made into the insight which the Defendant has acquired. However, Dr Ellis thought the extent of his insight was somewhat limited. Dr Parker said that while having insight was useful it will not be sufficient to prevent further offending. The Defendant’s history on parole was someone who would not or could not respond appropriately to the situations that presented themselves with drugs. Having been returned to custody once for a drug offence ought to have been sufficient to prevent a repeat occurrence if insight and control had been present but it was not. Those events suggest three problems: substance use not under control, lack of insight into the consequences or lack of control, and a refusal or inability to adhere to what the experts described as a pro-social attitude of obeying the law.

19. [76]

    The second matter was the support the Defendant is said to have from his wider family. The experts considered that his relationship with his partner was a positive matter and it was taken into account. There was, however, limited other evidence about other family members. Certainly, the case notes contained mention of siblings with whom the Defendant was keen to see, and children of his partner with whom he seemed to have a positive relationship in the passing references made to them in those notes. Even ignoring the position of a brother of the Defendant who had himself been incarcerated, there was too little information about the family support for it to take the matter very far for the Defendant.

20. [77]

    The as yet unresolved substance use disorder when considered in conjunction with the neuro-cognitive and personality disorders, the link of alcohol and violence in the Defendant’s history, the level of violence shown by both the index offence and the attempted shooting offence, together with the difficulty the Defendant has shown in dealing with rules and authority, point to the presence of a risk to a sufficient degree that the Defendant will commit a serious violence offence so that the safety and protection of the community cannot be ensured unless he is subject to supervision: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [20]; approved in Lynn at [59].2

The length of the ESO

1. [78]

   As noted at the outset, the Plaintiff originally sought a two year period for the ESO. That was no doubt principally based on the report of Dr Parker and Mr Kevin Makar, the Senior Community Corrections Officer who prepared the risk management report.

2. [79]

   Mr Sheehan thought that a three year period would be appropriate. Dr Ellis thought that five years was needed and was reasonable to improve function in the community “and refine the appraisal of risk”.

3. [80]

   It was in those circumstances that the Plaintiff sought leave to amend to seek a five year period. That was the period ultimately argued for in submissions by the Plaintiff for the reasons Dr Ellis gave. The Defendant submitted that if an order was to be made it should be no longer than three years.

4. [81]

   The basis for Dr Ellis’ view about the need for a five year period was this:

5. [82]

   Mr Sheehan said that he thought three years was the appropriate period for three reasons. The first related to the goodwill and desire of the offender to cooperate with the supervision which was in place. If the period was too long there was less likely to be cooperation and observance of the conditions. Secondly, Mr Sheehan thought that three years on parole would have been an appropriate length of time to ease the Defendant back into the community so that he could live unsupervised. Thirdly, he thought that a period less than five years was appropriate because the Defendant is now older and there is some evidence that older offenders were less likely to reoffend than younger offenders.

6. [83]

   Dr Ellis agreed that he was making the recommendation of a five year period as a clinician and on the basis of a clinical evaluation. He considered that five years took into account the amount of time he would estimate the Defendant’s clinical conditions would require clinical intervention to manage. That seems to me to be a different approach from what the Act requires. As State of NSW v Colin John Fisk [2009] NSWSC 778 at [27] and Tillman v Attorney-General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327 at [8] make clear, the likelihood which I must evaluate is the period when the risk is unacceptable. It may well be the case that after three years the Defendant will need further clinical management and assistance, but I am satisfied, particularly from Mr Sheehan’s evidence, that the likelihood of an unacceptable risk is for a period of three years.

Conditions

1. [84]

   The conditions proposed by the Plaintiff are as follows:

2. [85]

   I have included the conditions in a form showing what the Plaintiff originally sought. The conditions were amended after some were disallowed by Rothman J when his Honour made the ISO and after negotiations between the lawyers.

3. [86]

   The italicised words in condition 3 were added by Rothman J when his Honour made the ISO. Before me, the Plaintiff submitted that the words were unnecessary because the conditions themselves only allow a DSO or any other supervising officer to do what the conditions allow them to do. In that way, the DSO does not have the power to make a direction that is not contained with the conditions. The Defendant did not press for the words to be included on the basis that any directions the DSO gives must be reasonable directions.

4. [87]

   I agree with both those submissions. In the necessary haste with which the interim orders needed to be made it does not appear any arguments were addressed about those words. With great respect to Rothman J I consider that the words should be deleted.

5. [88]

   The disputes in relation to the remaining conditions concerned condition 5, conditions 6-8, condition 14 and condition 29. In addition, I raised with counsel the proposed omission of condition 26.

6. [89]

   The Plaintiff accepted that this condition was not needed at the present time but submitted that it may be needed in the future. In that way the DSO ought to be given a discretion to require it if it is needed.

7. [90]

   The Defendant has not been required to wear electronic monitoring equipment whilst he has been under the ISO. None of the experts consider that the condition is necessary and, indeed, Mr Sheehan considered that it would be counterproductive to require the Defendant to wear electronic monitoring when he has been living within the community without it. He said it would do more damage than good.

8. [91]

   In my opinion, there should be no condition requiring the Defendant to wear electronic monitoring equipment. Such equipment may be useful in relation to high risk sex offenders where there are particular restrictions on the movement of the offender to keep that person away from schools, playgrounds or similar places. Nothing in the evidence suggests that there is any particular place or type of place that the Defendant should not be in except perhaps some licensed premises although it should be noted that the Plaintiff does not seek such a condition.

9. [92]

   There is nothing in the evidence to suggest that the Defendant is a flight risk. The two periods of time spent on parole (approximately 12 months in total) were unremarkable except for the breaches by the consumption of methamphetamine. It cannot be reasonably suggested that electronic monitoring would be useful in preventing a further similar breach.

10. [93]

    Moreover, the Defendant is permitted to reside with his partner in a fairly remote property some distance out of Nyngan. The plan is that he should live and work on or near that property. His regular movements are likely to be confined to travelling to Nyngan and/or Dubbo to meet with various persons assisting in his rehabilitation and supervision. Even Mr Kevin Makar who prepared the risk management report dated 3 November 2016 and gave evidence in the proceedings accepted that he had been advised by those who administer the electronic monitoring that there may be issues with GPS communication at such a remote location. Further, Mr Makar, although continuing to support a condition in relation to electronic monitoring, accepted that it was not required at the moment but might be required if the Defendant was to regress to his old ways.

11. [94]

    Where it is accepted that there is no present need for electronic monitoring I do not consider there is a proper basis for delegating the decision to the DSO at a future time simply because the need for it may arise. Although the Plaintiff resisted the suggestion that it should make a further application if the need arose, I consider that electronic monitoring is such a serious curtailment of liberty that a further application should be made with appropriate evidence to justify a variation in that regard.

12. [95]

    I am not satisfied in all the circumstances that the condition is required.

13. [96]

    Dr Parker thought a schedule of movements was not necessary in the present matter. Mr Sheehan said that he did not see a burning need for such a schedule but he thought that they were useful and effective in assisting people who have anti-social histories. He, like Dr Ellis, saw that such a schedule had therapeutic value but should not be used as a punitive measure. Dr Ellis saw it being used in particular within a casework framework. That approach was agreed by Mr Sheehan.

14. [97]

    The Plaintiff submitted that such a schedule would assist the Defendant to adapt to a less structured environment than he was used to in prison. So much may be accepted. By making it a condition, however, penal consequences flow from a breach of the requirements associated with a schedule of movements.

15. [98]

    Having regard to the evidence of the experts, to the circumstances in which the Defendant will be living and working and given the control available to the DSO in conditions 2, 3, 9 – 13, 15 and 28 I do not consider that a schedule of movements is appropriate in the present case. The matter is better approached, as Dr Ellis said, within a casework framework.

16. [99]

    The Defendant submitted that this condition was not necessary because it was covered by the power given in condition 28. That is to some extent true but the identity of persons who reside permanently or temporarily with the Defendant is a separate significant consideration. The present residence has been approved on the basis of the person or persons whom it is known reside there. That arrangement should not be surreptitiously or otherwise overcome by somebody being able to move temporarily or permanently into the premises without the knowledge of the DSO.

17. [100]

    On the other hand, the words “or to stay overnight” are unnecessarily restrictive given the remote location of the property. Nor do I see a particular significance in a person staying overnight compared with spending the day with the Defendant. The Plaintiff submitted that the point of the condition was to prevent antisocial persons from having ongoing contact with the Defendant. Merely staying overnight is no more ongoing than spending the day with someone.

18. [101]

    The condition should be modified so that it does not prevent, for example, other family members staying for short periods of time if they are visiting. The remoteness of the property makes this a more likely and necessary occurrence than if the Defendant lived in, say, the suburban area of Sydney. The condition should be amended to read:

19. [102]

    The Plaintiff submitted that the condition was important both in reference to illegal drugs and alcohol because being with people who were drinking was a risk factor which I understood to mean by way of temptation. The Defendant submitted that there was a problem relating to whether there was a mental element in the condition. That is to say, is the condition only breached if the Defendant knows that the other person has consumed or is under the influence of illegal drugs or alcohol. If the condition was to be included it should at least include the words “must not knowingly associate”, which Mr O’Neil of counsel for the Defendant described as the old DUI test. However, the Defendant’s principal submission was that the condition should not be included.

20. [103]

    Given the fact that the Defendant is likely still to have some form of problem with drugs (the parole breaches and the failures on testing during the IDAPT are sufficiently recent to suggest this) the condition should remain in its present form as far as illegal drugs are concerned. In one sense, alcohol is in a different category of drug because first, it is legal and secondly, a large number of people in the community are able to use it responsibly. In itself there is not a problem with the Defendant associating with someone who is consuming alcohol. It may be a family member at meal time. The difficulty is that, despite what the Defendant has said about his attitude to alcohol in more recent times and the fact that he has not consumed it during the time he was in custody for 18 years, there can be no certainty that he might not again use alcohol in the light of his pre-custodial history. The risk is emphasised because his history makes clear that it is alcohol that has been directly connected with his violence.

21. [104]

    In my opinion, Condition 29 should be amended so that it reads:

22. [105]

    In addition, there should be a further condition in these terms:

23. [106]

    During the course of submissions I expressed to the Plaintiff surprise that condition 26 was not pressed. Mr Fernandez of counsel for the Plaintiff said that the principal reason was that “licensed premises” covers a wide variety of places and includes restaurants. The suggestion appeared to be that it was not intended that the Defendant be prevented from going to restaurants. The Defendant took a similar approach and pointed to the fact that some cafes have liquor licenses and supermarkets frequently have bottle shops attached to them. In that way it was submitted that there was a difficulty with excluding the Defendant from entering licensed premises.

24. [107]

    As I noted earlier when dealing with condition 29, historically the matter most connected to the Defendant’s violence was alcohol. If he is not permitted to drink alcohol, and condition 24 prevents that, it does not seem to me at all appropriate, nor is it necessary, for him to enter licensed premises particularly bottle shops, hotels and bars in licensed clubs. Excepting restaurants from such a proscription is a fairly blunt tool because many or most hotels and all licensed clubs have restaurants. Frequently, and more often in country areas, the restaurants in hotels are not separate from the bars.

25. [108]

    Where the conditions appropriately prohibit the Defendant from not associating with people who are under the influences of alcohol and, by what I have provided earlier, prevent the Defendant from being in the company of people consuming alcohol without the consent of his DSO, I consider that it should also be the case that the Defendant should not be permitted to enter any licensed premises without the consent of his DSO. It is appropriate to impose this condition so as to address a risk of future offending of the type which was the basis of the order: Wilde v State of NSW [2015] NSWCA 28 at [53].

26. [109]

    One would expect that the DSO would act reasonably if the request was to attend a restaurant not inside in a hotel or registered club. The DSO may on occasions feel that it is appropriate to permit the Defendant to attend a restaurant in a hotel or a registered club but in all the circumstances the Defendant should not have the freedom to do so without approval from the DSO.

27. [110]

    I do not consider that there is any problem in relation to supermarkets. With one notable exception in a suburb of Sydney, supermarkets are required to keep their bottle shops separate from, although they may be accessible to, the supermarket itself. The Defendant would not be in breach of condition 26 by entering the supermarket. He would be in breach if he went into the bottle shop. In all the circumstances, that is an appropriate restriction.

Conclusion

1. [111]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the Defendant is to be subject to a High Risk Offender Extended Supervision Order (ESO) for a period of 3 years from 9 June 2017;

   2. (2)

      I direct, pursuant to s 11 of that Act that for the period of the ESO in (1) above, the Defendant comply with the following conditions: