State of New South Wales v Stone (Final)

1. [1]

   By a summons filed on 21 September 2023, the plaintiff, the State of New South Wales, sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) in respect of the defendant, Mr Peter Stone, as well as interim orders pending the final determination of the matter.

2. [2]

   A preliminary hearing took place on 20 November 2023. On that day, Fagan J made the following orders:

3. [3]

   His Honour’s reasons for making these orders were delivered to the parties on that date but have not been published on Caselaw NSW. There were 48 conditions imposed under order (2)(c), which reflected most but not all of the conditions sought in the schedule to the summons.

4. [4]

   The interim supervision order (ISO) was extended on a number of occasions with the result that it was due to expire at the end of 12 April 2024.

5. [5]

   In accordance with the orders of Fagan J, the defendant was examined by Dr Sathish Dayalan, forensic psychiatrist, and by Dr Michael Davis, forensic clinical psychologist. Each of those experts provided a report as a result of their examinations.

6. [6]

   It can also be noted here that the defendant provided a report of Ms Elizabeth Shannon, physiotherapist, which dealt principally with the decline in the defendant’s functional physical level of independence as a result his stroke in 1997, ongoing seizures and assaults over the last 26 years.

7. [7]

   The matter came on for final hearing before me on 8 and 9 April 2024. At the end of that hearing, I gave the parties leave to file further short written submission by the end of the following day, 10 April 2024. Since the ISO was due to expire at the end of 12 April 2024, I indicated that I might make orders prior to the expiration of the ISO and publish my reasons later. The parties had no objection to my adopting that course.

8. [8]

   As it happened, I made the following orders on 12 April 2014:

9. [9]

   A copy of the schedule to the orders is attached to this judgment.

10. [10]

    These are my reasons for making those orders and directing that the conditions set out in the schedule to orders be complied with.

Facts and matters agreed

1. [11]

   Commendably and in accordance with cl 26(i) of Supreme Court Practice Note SC CL 12, the parties produced a Joint Statement of Agreed Facts for the purposes of the final hearing. In all the circumstances, I was satisfied that it was appropriate to accept the facts and matters agreed between the parties. In addition to the agreed facts, there was also before the Court significant further information derived from a number of sources many of which fall within the types of matters described in s 9(3) of the CHRO Act, including the sentencing judgments of the judges who sentenced the defendant for his offending in 1990 and 1998. My findings based on the facts and matters agreed and that other information are as set out in the paragraphs which follow.

2. [12]

   The defendant was born on 19 April 1959 and is presently aged 64 years. He has no dependents. His background and circumstances were shortly summarised by Grove J in his sentencing judgment, R v Stone [2004] NSWSC 224; 144 A Crim R 568, as follows:

3. [13]

   On 15 May 1990, the defendant was released to parole after serving a sentence and was residing with his then partner at Glenfield.

4. [14]

   On 9 July 1990 while still on parole, the defendant used methylamphetamine taking it in capsule form and continuing until he took the last capsule at about 8 am on 10 July 1990. After consuming the drug, the defendant went to a hotel where he consumed bourbon whiskey. There, he described being attacked by a stranger. While trying to escape from someone by whom he believed he was being pursued, the defendant forced his way into the unit of the victim, a young mother who was a complete stranger to the defendant.

5. [15]

   After he forcibly entered the unit, he harboured at some point an intention to assault the victim sexually and may have been frustrated by reason of his incapacity to do so because of his state of intoxication. After all of her clothing had been removed, he tied the victim in a spread-eagle fashion on a bed using stockings and football socks. There, the defendant strangled the young woman. Violence was visited upon the victim not only in the fatal attack but additionally as evidenced by the bruising found at post mortem both to her face and from the ties upon her wrists and ankles as well as the stripping of her clothing. The sentencing judge said it was something of an understatement to say that the murder of the young woman in the circumstances involved “gratuitous cruelty”. After the killing, the defendant stole money from the victim’s purse, took her car keys and fled the scene.

6. [16]

   The sentencing judge said, at [52], that he found the dangerousness of the defendant troubling. The evidence of Dr Allnut that the defendant represented a high risk of reoffending in a violent way and in a sexual way was accepted but it was noted that the doctor was of the view that the passage of time could ameliorate the risk.

7. [17]

   The defendant’s involvement in this crime was not detected for another 13 years.

8. [18]

   In early 1997, the defendant, whilst living in Tasmania, suffered a stroke. The stroke left him partially paralysed in his left leg and arm. He was, however, subsequently able to move to Sydney with his partner at that time where he lived with her and her adult daughter.

9. [19]

   On 12 March 1998, the defendant whilst affected by alcohol picked up his partner’s adult daughter at her request from an hotel after her theatre rehearsal. Shortly after getting into the vehicle with the defendant, the daughter was able to smell alcohol and he appeared affected.

10. [20]

    After she arrived home, the victim had a bath and was in her bedroom preparing to go out again. The defendant entered the room and grabbed her around the neck and threatened her with a knife saying he would kill her if she screamed. She pleaded with him not to hurt her. The defendant dragged the victim to the bedroom he shared with her mother still holding the knife at her throat. With much effort, the defendant forced the victim onto the bed where he tried to tie her left wrist with a stocking he had tied to the bedpost. There was a stocking tied to each of the four bedposts where the defendant had intended to tie her down. He said to her “I have killed before, you know I will kill again, I have fancied you, do exactly as I say”. After a further struggle, the victim was eventually able to grab the knife suffering a small cut to her right finger as she did so. She got off the bed and ran from the apartment. The defendant was arrested in the early hours of the following morning, but fell asleep during the interview at the police station due to his intoxicated state.

11. [21]

    For this offence, the defendant pleaded guilty on 28 October 1998 and was sentenced by Luland DCJ on 30 October 1998 to 5 years’ imprisonment, with non-parole period of 3 years. While in custody in 1998, the defendant suffered a significant head injury when assaulted and he began experiencing regular seizures following this injury.

12. [22]

    On 23 October 2001, the defendant was released from custody and on 23 January 2003, whilst residing in Tasmania, he was arrested for the index offence of murder after DNA testing established a matching profile with a DNA sample provided by the defendant with the blood sample obtained from the scene of the index offence.

13. [23]

    On 5 March 2004, the defendant entered a plea of guilty to the murder committed in 1990. Grove J sentenced him, on 30 March 2004, to 21 years’ imprisonment commencing on 21 January 2003, with a non-parole period of 15 years and 9 months.

14. [24]

    The non-parole period for the index offence of murder expired on 20 October 2018.

15. [25]

    The defendant participated in and completed the following programs while in custody:

16. [26]

    The defendant was released to parole on 11 February 2022. Since that time, there have been instances where he deviated from his approved activity and there have also been breaches of supervision conditions involving, inter alia, consumption of alcohol, use of prohibited drugs (cannabis and methamphetamines) and multiple deviations from his electronic monitoring schedule. The breach of parole report dated 7 July 2023 referred to examples of such problems. That report also contained the following significant commentary under the heading “Relationship between alleged breach and risk factors”:

17. [27]

    On 27 June 2023, Dr Richard Parker, psychologist, prepared a Risk Assessment Report (RAR) pursuant to s 6(3)(b) of the CHRO Act. Dr Parker prepared his report on the papers and reported the following risk assessment results for various risk assessment tools (which are explained in more detail below in relation to the evidence of Dr Dayalan and DR Davis) as follows:

    1. (1)

       LSI-R: medium/high;

    2. (2)

       Static-99R: average;

    3. (3)

       STABLE-2007: high;

    4. (4)

       STABLE-2007 combined with STATIC-99R: above average; and

    5. (5)

       VRAG: higher than 99% of the construction sample – ninth of nine bins.

18. [28]

    On 3 August 2023, Dr Parker provided a Supplementary RAR. Dr Parker did not rescore any of the risk assessment instruments.

19. [29]

    On 20 July 2023, Antonios Koklas, Community Corrections Officer, prepared a risk management report pursuant to s 9(3)(d1) of the CHRO Act. The report detailed the conditions recommended by Community Corrections to be imposed on any ESO. These proposed conditions and the explanation for their inclusion were essentially consistent with the conditions which I decided should be imposed.

20. [30]

    On 5 March 2024, Ms Elizabeth Shannon, Consultant Physiotherapist, prepared a report following her assessment of the defendant’s level of physical mobility/capacity. Ms Shannon assessed the defendant in person at the Integrated Support Centre (ISC), Campbelltown, on 19 February 2024. Ms Shannon opined that:

    1. (1)

       his physical impairments include left sided muscle weakness, reduced motor control (speed and coordination of movement) and muscle spasticity;

    2. (2)

       he walks with a wide base of support. He is a medium risk of falls and has reduced mobility measurements when walking requiring supervision for higher mobility tasks such as negotiating stairs and outdoor mobility tasks on uneven surfaces (grass and slopes);

    3. (3)

       he cannot lift and carry something heavier than 1kg with his left hand and has significantly reduced dexterity/coordination of the left hand. He cannot lift heavy objects from the floor while sitting;

    4. (4)

       he has full active and passive range of motion of his right upper limb and normal dexterity/coordination of his dominant right upper limb;

    5. (5)

       his walking is slow and limited to 100m before he requires a rest. He is limited to walking 200 metres outdoors;

    6. (6)

       he is unable to stand in tandem stance or single leg stance without loss of balance;

    7. (7)

       after a fall, he needs the help of a person and a piece of furniture to get up off the floor; and

    8. (8)

       he received the following scores:

21. [31]

    On 30 December 2023, Dr Sathish Dayalan furnished a report in relation to the defendant to the Court. Dr Dayalan interviewed the defendant via AVL on 8 December 2023. Dr Dayalan opined that:

22. [32]

    Dr Dayalan conducted a risk assessment using a number of risk assessment tools. He noted the inherent challenges in predicting the probability of a specific event occurring in the future despite the use of validated risk assessment tools, and opined these tools are best used to identify risk factors and form a professional opinion on risk management. They were:

    1. (1)

       STATIC-99R – an actuarial tool that measures risk of sexual reoffending relative to other sex offenders based on 10 static factors only. Mr Stone’s score placed him in the average risk level.

    2. (2)

       STABLE-2007 – a structured professional judgment tool used to identify dynamic risk factors associate with sexual reoffending. Mr Stone had a high level of stable dynamic risks and needs.

    3. (3)

       HCR-20 V3 – a structured clinical judgment tool widely used in forensic psychiatry to assess and manage risk of violence in psychiatric patients. Mr Stone had a high loading of historical risk factors, a moderate to high loading of dynamic risk factors, and a high loading of risk management variables.

    4. (4)

       VRAG – an actuarial tool that places individuals into risk categories based on the presence of factors that correlate with the risk of violent behaviour. Mr Stone’s score placed him in the high risk category.

23. [33]

    Dr Dayalan further opined:

    1. (1)

       the defendant poses a risk of committing a serious offence (sexual and violent) (and the parties agreed that this was as defined by the CHRO Act);

    2. (2)

       the defendant requires comprehensive treatment and rehabilitation and active supervision to manage his risk of committing a serious sexual/violent offence;

    3. (3)

       the risk factors identified cannot be managed in the community unless he is subject to an ESO;

    4. (4)

       the conditions are restrictive in nature and will impede rehabilitation by limiting opportunities for the individual to make informed choices, however they do serve the purpose of managing risks which needs to be balanced against the rehabilitation needs;

    5. (5)

       the defendant will require a lot of support in the community given the extent of his physical disability, psychiatric conditions and degree of institutionalisation, but he was likely overwhelmed by travel requirements to attend appointments when previously receiving support from numerous agencies, and assistance with travel and reminders of his obligations under the ESO would improve his prospects of remaining in the community; and

    6. (6)

       an ESO for a period of three years would allow for completion of recommended treatment and rehabilitation programs, followed by graded reduction in conditions so he will have minimal conditions when the order comes to an end.

24. [34]

    On 9 January 2024, Dr Michael Davis furnished a report in relation to the defendant to the Court. As the defendant initially refused to be interviewed, Dr Davis prepared the report on the papers. The defendant subsequently agreed to be interviewed by Dr Davis and he furnished a further report (intended to replace his earlier report) on 21 March 2024. Dr Davis assessed the defendant using the following instruments:

    1. (1)

       Neuropsychiatry Unit Cognitive Assessment Tool (NUCOG): a screening tool that provides an overview of cognitive function across five major domains, but is not a substitute for comprehensive neuropsychological evaluation. The defendant returned results that were at least three standard deviations below the average on all five domains, with lowest scores in memory and executive functioning.

    2. (2)

       Paulhus Deception Scales (PDS): a self-report instrument that measures the tendency to give socially desirable responses to assess the validity of the results of self-report based assessments. The defendant’s responses revealed elements of both impression management and “non-effortful positive distortion in the form of self-deception”. These results are usually found in individuals who are aware of their shortcomings but who want to appear publicly acceptable. The impression management result was unusually elevated.

    3. (3)

       Personality Assessment Inventory: a self-report questionnaire that reliably measures personality functioning and the presence of psychiatric symptoms. His responses in regard to impression management are associated with a “cry for help”, or an extremely negative evaluation of oneself and one’s life. Substantively, Mr Stone’s profile showed significant elevations across several scales, usually associated with marked distress and severe impairment in function. The results are thoroughly explored at paragraphs [170]-[187] of the report, but in summary they suggested he experiences considerable inner turmoil, prominent difficulties with personality functioning and a range of clinical concerns, which (allowing for distortion by impression management) included poor interpersonal rapport, substance dependence, unsupportive family or friends, hostility and bitterness, tension and apprehension, disruptions in thought process, feelings of helplessness, physical signs of depression, compulsiveness or rigidity, poor control over anger and a history of antisocial behaviour.

    4. (4)

       Trauma Symptom Inventory: a self-report questionnaire that reliably measures trauma-related symptoms and behaviours across four domains, and was administered to ascertain the extent and degree of any post-traumatic stress Mr Stone may have experienced in the past six months. The defendant had elevated scores on all four domains. The results of this assessment are explored in detail at [192]-[204], but in summary found Mr Stone has a considerable number of difficulties associated with post-traumatic symptoms, largely consistent with the results of the PAI.

    5. (5)

       Sexual Sadism Scale: there was no evidence or at best weak evidence of sexual sadism. Mental state examination did not reveal delusions or other psychotic symptoms.

25. [35]

    Dr Davis also administered a number of risk assessment tests, as follows:

    1. (1)

       Hare Psychopathy Checklist-Revised (PCL-R): this test was administered as Dr Davis was of the view that a diagnosis of anti-social personality disorder was not particularly informative or helpful due to its prevalence among inmates. It reliably identifies traits of psychopathology. Mr Stone’s score on the PCL-R is in the high range, however analysis revealed more of the behavioural than the personality features. Mr Stone’s highest score was in the antisocial facet. The results of the PCL-R indicate that Mr Stone has a large number of antisocial behavioural features that reflect his diagnosis of antisocial personality disorder. Dr Davis concludes that while Mr Stone has some problematic personality features, he is not “overwhelmingly psychopathic” and has far more antisocial behavioural features. Nonetheless, the elevated total score is still associated with an increased risk for offending in general.

    2. (2)

       Level of Service/Risk, Need, Responsivity (LS/RNR): a standardised offender classification scale that covers the majority of the best-established predictors of general criminal conduct across eight broad domains. Mr Stone’s score on this instrument was in the upper end of the “high” range of risk and need, with the following five areas identified as “high” or “very high” needs: antisocial pattern; family/marital; criminal history; companions; and alcohol/drug problem. In addition, leisure/recreation and pro-criminal attitude/orientation were identified as areas of “medium” needs. The elevated total number of risk factors indicates that Mr Stone currently poses a high risk for general criminal recidivism until he can demonstrate a reasonable period of behavioural stability in the community that is not accompanied by chronic substance misuse. Further, the identified areas of need represent treatment and management targets that may assist in reducing Mr Stone’s risk of recidivism.

    3. (3)

       Risk Matrix 2000/V: a brief statistically-derived risk classification instrument designed to assess the risk of sexual and violent recidivism. Mr Stone had evidence of two of the three static items (violent court appearances and burglary offences). This placed Mr Stone into the “above average” risk category, which is the second highest of four risk categories.

    4. (4)

       Violence Risk Appraisal Guide – Revised (VRAG-R): an actuarial assessment designed to assess the risk of violent (including sexual) recidivism with reference to static risk factors. Mr Stone’s score of 32.32 placed him in the highest of nine categories, indicating that he has a considerably elevated number of static risk factors for violence.

    5. (5)

       HCR-20: a structured professional judgment tool covering risk factors related to general violence, and is among the most accurate methods for assessing risk of violence. Dr Davis noted the difficulty in assessing Mr Stone’s risk of violent reoffending with regard to the historical nature of his offending. Mr Stone had evidence of 9 out of the 10 historical risk factors, suggesting an elevated risk for violence. In terms of dynamic factors, the following clinical factors were identified: recent problems with violent ideation or intent; instability; and, treatment or supervision response. There was also partial evidence of insight and symptoms of major mental disorder. Mr Stone was determined to be at high risk of verbal violence, but a moderate risk for physical violence, although that assessment appeared to be equivocal. The following risk management factors were identified (as coded on the basis that Mr Stone was residing in the community and not subject to an extended supervision order): future problems with living situation; personal support; treatment or supervision response; and stress or coping. There was also partial evidence of the remaining item of professional services and plans.

    6. (6)

       STATIC-99R: an actuarial tool that assesses the risk of sexual recidivism. Dr Davis notes that this instrument is of limited utility in the present case, given the historical nature of the offending. The way in which the STATIC-99 is scored provides a “baseline estimate” of what Mr Stone’s risk would have been in October 2001 and Dr Davis cautions that there would be very little weight that could be placed on such an estimate. Mr Stone scored 5 on this instrument, which is considered to fall in the moderate-high risk category relative to other male sexual offenders. It is noted that advanced age is generally deemed to be a protective factor using the STATIC-99, however due to the “quirks” of the coding rules, it is not taken into account in the present case, nor are the mobility issues or the time spent in the community without further criminal charges.

    7. (7)

       Risk Matrix 2000/S (RM2000): a brief actuarial risk classification instrument designed to assess sexual recidivism. Mr Stone had evidence of one of the risk factors in step one of the instrument (large number of criminal court appearances). The remaining two items did not apply (young age or a large number of sexual court appearances). One aggravating factor (stranger victim) was also identified. This placed Mr. Stone into an initial risk category of “average” risk, which is the second of the four risk categories on the RM2000/S. However, taking Mr Stone’s advanced age into account as a protective factor reduces the risk level such that Mr Stone falls into the “below average” risk category on this instrument.

    8. (8)

       Risk of Sexual Violence Protocol – Version 2 (RSVP-V2): a structured professional judgment tool for assessing risk of sexual recidivism that considers both static and dynamic risk factors. A number of past and present dynamic risk factors were identified in relation to Mr Stone, and there were some cautiously positive indications of improved attitudes to sexual offending, insight, and mental state in recent years.

26. [36]

    Dr Davis described the defendant as a “diagnostically complex” man. He considered that the defendant had depressive episodes with anxious distress, panic disorder, PTSD, antisocial personality disorder, borderline personality disorder, neurocognitive disorder, and somatic symptom disorder. While he had childhood episodes of voyeurism and fetishism, he did not meet the criteria for a paraphilia.

27. [37]

    Ultimately, Dr Davis considered that the defendant’s two sexual offences were an amalgam of opportunistic, pervasively angry and vindictive motivations, in the context of methylamphetamine and/or alcohol use, lowering already impoverished inhibitions and compromised ability to tolerate anger, frustration and perceived disrespect. He considered that alcohol or methylamphetamine use created situations where aggression, violence, and sexual violence were arguably more likely to occur.

28. [38]

    Dr Davis considered that:

    1. (1)

       the defendant posed a moderate risk for sexual recidivism and violent recidivism. Dr Davis noted that the overall degree of case prioritisation required for risk of sexual recidivism was moderate to high because of the continued methylamphetamine use;

    2. (2)

       the defendant currently posed a high risk for verbal violence in the form of making threatening statements, but a moderate risk for physical violence (i.e., comparable to that of the average violent offender). Dr Davis observes that the defendant’s physical health issues would appear to reduce the risk of future violence to some degree, and whilst consideration was given as to whether the risk of physical violence would be at a low to moderate level, the defendant’s ongoing periodic use of methylamphetamine and his recent experiences of anger, suggest that some degree of risk remains;

    3. (3)

       the defendant poses a moderate risk of sexual recidivism;

    4. (4)

       the overall degree of case prioritisation required for risk of sexual recidivism was moderate to high because of the defendant’s continued methylamphetamine use;

    5. (5)

       the imposition of the ESO will not necessarily lower the defendant’s risk immediately but may serve to contain it by providing much needed support and appropriate housing, addressing methylamphetamine misuse and other risk factors; and

    6. (6)

       an ESO of two to three years to allow the defendant to demonstrate stability in the community that would lower their assessed risk of recidivism. A three-year ESO could potentially provide the defendant with enough time to demonstrate the behavioural and social stability necessary to reduce his risk for violent and sexual recidivism.

29. [39]

    In light of the evidence as a whole and in particular the matters referred to above and below when dealing with specific issues, I now turn to consider the relevant statutory provisions, whether an ESO should be imposed and, if an ESO is imposed, the appropriate conditions with which the defendant should be directed to comply.

Relevant statutory provisions

1. [40]

   In the present case, the parties accepted that: the defendant was a “supervised offender” within the meaning of s 5I of the CHRO Act; the prerequisites in s 5B(a), (b) and (c) of that Act were satisfied; and, the requirements of ss 5H, 5I, 6 and 7 had been complied with. I am satisfied that this acceptance was well founded, particularly in light of the circumstances referred to above.

2. [41]

   As to the making of an ESO in those circumstances, ss 5B and 5D relevantly provide:

3. [42]

   The Court’s determination of the application for an ESO is to be made in light of the objects of the CHRO Act found in s 3 and is more specifically governed by s 9 of the Act. Section 3 is as follows:

4. [43]

   Section 9 provides:

5. [44]

   Furthermore, the term of an ESO is to be set in accordance with s 10 which relevantly provides:

6. [45]

   In the present case, the defendant did not wish to be heard in opposition to the making of an ESO but submitted that such an order should be made for only two years rather than three years as sought by the State.

Should an ESO be imposed?

1. [46]

   In determining whether I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO, and whether to make such an order, I had regard to the safety of the community as the paramount consideration in accordance with s 9(2), the matters identified in the relevant paragraphs of s 9(3) of the CHRO Act and to the relevant provisions of the CHRO Act including those identified above and the two objects of that Act stated in s 3.

2. [47]

   Since there was no dispute as to the appropriateness of the imposition of an ESO, I shall not refer in detail to all of the material I have considered. It is sufficient to note what has been set out above and below, the information and background provided in the reasons of Fagan J (which should be read in conjunction with these reasons) and the more detailed information provided in the reports of Dr Dayalan and Dr Davis, which are the reports referred to in par (b) of s 9(3) of the CHRO Act. Their evidence was, in my view, consistent and not challenged to any significant extent and I accepted it in whole. The most pertinent other material referred to in pars (d) to (i) of s 9(3) was adequately covered in the material I have already referred to and the parties did not draw my attention to anything that was inconsistent with the views of Dr Dayalan or Dr Davis in that material. In addition, I did not discern that any of that material called into question in any way the opinions of those experts. In short, it is a fair summary of the situation to say that, in substance, that other material supported the making of an ESO in the defendant’s case.

3. [48]

   Consequently:

   1. (1)

      I accept that the preconditions in s 5B(a), (b) and (c) and the requirements in s 5H, 5I, 6 and 7 of the CHRO Act were met in this case; and

   2. (2)

      I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

4. [49]

   In the absence of opposition and in all the circumstances, it is in my view appropriate to make an ESO.

Duration of ESO

1. [50]

   As has been noted above, the parties were not in agreement as to the duration of the ESO, with the State seeking a three-year order and the defendant contending that the order should be for two years.

2. [51]

   The defendant submitted that he “has achieved some level of stability in the community” and noted that he had a number of service providers providing substantial support and that his physical mobility and health were only likely to worsen with time. It was then submitted that:

3. [52]

   In light of the evidence and in all of the circumstances, it did not appear to me that the defendant’s submission should be accepted.

4. [53]

   Dr Dayalan’s opinion in par 179 of his report was that:

5. [54]

   Dr Dayalan did not suggest that a shorter period than three years would be adequate. His approach appears to me to give appropriate weight to both ensuring the safety and protection of the community and encouraging the defendant to undertake effective rehabilitation.

6. [55]

   In his report, Dr Davis expressed his opinion in relation to the duration of an ESO at pars 323-324, including the following:

7. [56]

   This issue was taken up with Dr Davis in oral evidence where he noted that the defendant’s period on parole had not been “what would be considered a period of behavioural stability” and, if an ESO were for two years with similar instability, that would leave Dr Davis with concerns. The evidence continued:

8. [57]

   Furthermore, Dr Davis accepted that when he referred to the latter end of the period of two to three years, there was no significant difference between two years and six months, two years and nine months and three years.

9. [58]

   In this regard, I also note the two experts’ views as to the need for the intensity of supervision to be reduced, if possible, over the term of the ESO depending on the defendant’s lifestyle stability, abstinence from drugs and responsible use of alcohol and a reduction in other risk factors. As I understand the expert evidence, such a lessening of the intensity of supervision would be facilitated by a term of three years rather than a two-year term. A situation where, at the end of a three-year ESO, the defendant required no or minimal supervision would be a less intrusive and preferable result than a situation where, at the end of two-year ESO, a further period of significantly restrictive supervision was required.

10. [59]

    In my view the experts’ evidence, the defendant’s circumstances, his history of offending, his performance on parole and under interim supervision as well as the nature and extent of the risk posed, supported a term of three years rather than two years as the appropriate duration.

11. [60]

    Accordingly, I ordered that the term of the ESO be three years.

Conditions of ESO

1. [61]

   The conditions that may be imposed as part of an ESO are governed by s 11 of the CHRO Act. They may include, but are not limited to, those specified in s 11(1) of the CHRO Act and must include the condition in s 11(2). The consequences for breach of a supervision order are set out in s 12 and a power to vary such an order is conferred by s 13.

2. [62]

   Those provisions relevantly provide:

3. [63]

   The conditions to be imposed are those that the Court considers appropriate in order to mitigate the unacceptable risk otherwise posed by the offender. The application of s 11 does not require that each condition must have a specific, demonstrated link to the past offending which is the basis of the ESO. Rather, the Court must be satisfied, having regard to the scope, purpose and objects of the CHRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 (Wilde) at [37]-[54] (Beazley P, McColl and Ward JJA). It is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct: Wilde at [54].

4. [64]

   There may be a sufficient connection between a proposed condition and the risk if, for example:

   1. (1)

      the condition addresses a means of controlling possible risk factors related to the type of offending in question;

   2. (2)

      the condition is designed to avoid situations where the offender's rehabilitation or reintegration into the community might be compromised; or

   3. (3)

      the condition does not directly relate to the offender's risk but promotes the efficacy of the order containing other conditions which do,

5. [65]

   The objects of the CHRO Act include, not only the primary object of ensuring the safety and protection of the community by the extended supervision of high risk offender but also, as “[a]nother object”, encouraging high risk offenders to undertake rehabilitation. As was noted in Wilde at [49]:

6. [66]

   The authorities establish a number of general propositions concerning the imposition of conditions under ESOs and a helpful summary is found in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 (Wilkinson) at [44] (Hoeben CJ at CL). One of those principles is that the defendant, having served a sentence of imprisonment for his offending, has a right to personal liberty. Nonetheless, this right is not absolute. The limitations on that right include those inherent in the provisions, objects, scope and purpose of the CHRO Act. Depending on the circumstances, the conditions which may be imposed include ones which are relatively intrusive: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [113] (Basten JA).

7. [67]

   In addition, the process of determining what conditions may be imposed under s 11 of the CHRO Act in order to diminish the relevant risk posed by the defendant to an acceptable level will involve a balancing exercise, and the Court will seek to impose the least intrusive conditions consistent with its assessment of the risk and the kind of conditions that are likely to be effective: Lynn at [129]. Thus, in determining “the least intrusive conditions”, a practical rather than a theoretical approach must be taken so as to balance, in a properly informed way, the nature of the particular risk posed by the defendant if unsupervised and the actual way in which the proposed conditions are likely to operate to mitigate that risk, taking into account not only the present state and circumstances of the defendant but also potential developments which may increase or decrease that risk. For this reason, conditions which assist with monitoring risk factors or which practically reinforce other obligations, whether imposed by other conditions or by the general law, may be appropriate, depending on the circumstances.

8. [68]

   Finally, the determination of the appropriate of conditions depends on a common sense approach being taken to the formulation and enforcement of appropriate conditions. As Harrison J (as the Chief Judge then was) said in State of New South Wales v Osman [2021] NSWSC 124 at [43]:

9. [69]

   I have applied the principles referred to above to guide the determination of the appropriate conditions noting also the specific provisions of s 11, understood in their context and having regard also to the scope and purpose of the CHRO Act as a whole.

10. [70]

    In the amended summons, the State sought the imposition of 52 proposed conditions. As a result of appropriate and helpful discussions between the parties as to the form of the proposed conditions, by the end of the hearing, the number of proposed conditions had been reduced to 43 and many of the conditions were not the subject of dispute and the defendant was prepared to accept them.

11. [71]

    I have considered the undisputed conditions and, in my view, they are appropriate and well directed in the circumstances to addressing the risk of future serious violent and sexual offending posed by the defendant and should be imposed. Given the lack of opposition to these conditions, it is not necessary to say more about them other than to note that they are conditions 1-13, 18, 20-22, 24-25, 27-31 and 33-43.

12. [72]

    The conditions which remained in dispute were:

    1. (1)

       proposed conditions 14, 23 and 32 relating to sexually explicit entertainment, obtaining sexual services, and pornography;

    2. (2)

       proposed condition 15 relating to provision of information concerning the defendant’s financial affairs;

    3. (3)

       proposed conditions 16, 17 and 19, relating to possession or use of drugs and alcohol and attending licensed premises; and

    4. (4)

       proposed condition 26 relating to the possession of firearms and weapons.

13. [73]

    I shall address the conditions that remain in dispute in that order.

14. [74]

    The State’s proposed conditions 14, 23 and 32 (which had previously been numbered 14, 23 and 37 respectively) were as follows:

15. [75]

    Dr Dayalan’s evidence was that “increased sex drive is one of the risk factors that's been identified as a source with risk of sexual offending” and Dr Davis was of the view that “most certainly sexual preoccupation and hyposexuality is a potent risk factor when it's present”. Each of conditions 14, 23 and 32 was submitted to be directed towards the monitoring of increased sex drive or an increase in sexual preoccupation which, if it developed, would lead to a significantly increased risk of sexual recidivism on the defendant’s part. Dr Davis was also of the view in relation to condition 14 that “the way that that condition is worded I think is very balanced; it's not stopping him from going, he just needs to let people know when he is, so I don't have any issues with it”. A similar comment could be made concerning the wording of conditions 23 and 32.

16. [76]

    As to condition 23, it was also contended on behalf of the State that the condition enabled a DSO to conduct any necessary risk assessments before the defendant engaged a sex worker to ensure that worker's safety. It was also said to enable the DSO to consult with a treatment provider - for example, a Forensic Psychology Services psychologist ‑ to determine whether the contact is appropriate with regard to his current presentation and any concerns around elevated risk factors. Dr Dayalan’s view was that condition 23 was consistent with condition 14 and “in the early stages of his transition in the community I think it would be helpful for that condition to be present”. In this regard, Dr Davis said:

17. [77]

    Both experts accepted that condition 32 (formerly condition 37) was complementary to, consistent with and supported by the same considerations as supported, conditions 14 and 23.

18. [78]

    In cross examination, Dr Davis accepted that although the defendant may have engaged in some paraphilia behaviours decades ago they were not ongoing concerns and he was of the opinion that while he could not rule out entirely that the defendant would become sexually preoccupied, he would be “very surprised” if that occurred. Nonetheless, Dr Davis said:

19. [79]

    The defendant’s position was, in substance, since there was little if any likelihood of the defendant becoming sexually preoccupied given his history, age and conditions, there was no substantial justification for conditions 14, 23 and 32 being imposed in the defendant’s case.

20. [80]

    In this case, it can be accepted that the Court must be satisfied as to the appropriateness of these proposed conditions in the context of mitigating the defendant’s demonstrated risk of committing future serious sexual offences, as opposed to simply being punitive. While the likelihood of the defendant becoming sexually preoccupied may be very low, if that were to occur it is a potent risk factor in relation to the commission of further sexual and violent offences, which may include potentially very serious offences. In addition, Dr Davis’s opinion was that the proposed conditions would not impose any significant limitations on the defendant.

21. [81]

    Taking into account the defendant’s circumstances and the experts’ relevant opinions as a whole, I was of the view that these three proposed conditions in relation to sexual activities would allow appropriate monitoring of a potent risk factor and, thus, would be useful in assisting in ensuring the safety and protection of the community. At the same time, given that the conditions do not prohibit access for the defendant to those locations or services and that they would not impose significant limitations on him, they do not appear to me to be punitive or unreasonably or unnecessarily restrictive. Nor would they be likely to affect adversely his rehabilitation. For these reasons, I included conditions 14, 23 and 32 in the conditions to be imposed.

22. [82]

    The State’s proposed condition 15 was as follows:

23. [83]

    This condition was proposed on the basis that it provided a means of monitoring the defendant’s lifestyle stability in relation to matters such as accommodation and the ability to pay rent and the use of prohibited drugs, which were said to be significant factors which would affect the risk posed by the defendant.

24. [84]

    In par 315 of his report, Dr Davis stated in relation to this condition:

25. [85]

    In oral evidence, Dr Davis qualified his original view, stating:

26. [86]

    Dr Davis also clarified that the concern expressed in his report related more to implementation rather than the content of the condition itself and he indicated that, in his view, the condition could be useful in an indirect fashion in that:

27. [87]

    In oral evidence, Dr Dayalan was of the view that, if a direction were given only when specific concerns were raised, proposed condition 15 would be appropriate for the purposes as contended for by the State.

28. [88]

    The defendant submitted, in substance, that this proposed condition was not the least intrusive condition possible and did not have actual identifiable substantial work to do, if it were designed to mitigate the risk resulting from drug use or lifestyle instability. It was said that there were other conditions that were much more likely to succeed in identifying drug use than this one is. In addition, it was contended that there was no evidence before the Court that the defendant was presently financially unable to pay his rent or that suggested that that was a foreseeable risk in relation to this particular offender. In written submissions, the defendant also contended that the evidence clearly showed that:

29. [89]

    The question of whether a condition is appropriate turns in essence on whether it addresses the risk of future offending of the kind that formed the basis for the ESO being imposed. As noted above, however, it is not necessary that the risk be addressed directly rather than indirectly, for example, by permitting reasonable monitoring of the defendant’s affairs or activities which might disclose matters which significantly heighten the risk of relevant reoffending. Accepting the experts’ evidence, it appears to me that proposed condition 15 does serve the purpose of mitigating, albeit indirectly, the risk posed by the defendant by permitting monitoring of his financial affairs in order to determine his capacity to maintain his lifestyle stability including whether his accommodation is likely to remain stable and to assess whether he remains abstinent from drugs. Although I accepted that there was a potential problem of heavy-handed or overbearing implementation of the condition, there was nothing in the material before the Court to suggest that a similar condition had been previously implemented in an overbearing or heavy-handed manner or that this was likely to occur in the future.

30. [90]

    Furthermore, the evidence to which the defendant referred in submissions indicated that the defendant had not objected to the provision of this information and, thus, it did not appear that he regarded providing this information as unduly intrusive or punitive.

31. [91]

    In all the circumstances, in my view the condition was not overly intrusive and was likely to contribute in a significant way to the mitigation of the risk posed by the defendant and I included condition 15 in the conditions to be imposed.

32. [92]

    The State proposed conditions 16, 17 and 19 in the following terms:

33. [93]

    The defendant opposed proposed 16 and 19 outright and proposed an alternative version of condition 17 as follows:

34. [94]

    Dr Dayalan was of the view that proposed condition 16 was “very appropriate and very relevant” and Dr Davis opined that it was “very appropriate”. I understood these answers to relate in particular to the defendant’s previous and recent use of methylamphetamine and the role drug use had played in relation to his offending and his ongoing risk. Dr Davis went further and explained that proposed condition 16 also had a useful role to play in relation to other types of prohibited drugs as follows:

35. [95]

    In cross examination, Dr Dayalan conceded that he had some reservations about the proposed condition but explained:

36. [96]

    The defendant opposed proposed conditions 16 particularly in relation to prohibited drugs. It was in effect submitted that, since the possession and use of prohibited drugs was already proscribed in the relevant criminal legislation, the addition of proposed condition 16 was not only unnecessary but also exposed the defendant to the risk of prosecution under s 12 of the CHRO Act for breach of the condition and imprisonment for a term of up to 5 years. It was also contended that, if such a condition was breached, the imposition of a term of imprisonment was more likely for a lapse into prohibited drug use in breach of a condition of the ESO than for the same lapse prosecuted under the Drug Misuse and Trafficking Act 1985 (NSW). Imprisonment in these circumstances was then said to be likely to affect adversely the defendant’s rehabilitation without having any significant effect on mitigating his risk.

37. [97]

    While the defendant accepted that relapsing into ongoing drug use, especially the use of methylamphetamine, would lead to an increase in the defendant’s risk of reoffending, it was contended that the experts were of the view that lapsing into drug use from time to time, not amounting to a relapse into continued drug use, would not significantly increase the risk posed by the defendant. It was noted that Dr Davis had observed that the defendant had lapsed into methylamphetamine use while on parole but had not committed any further violent or sexual offences. In addition, it was contended that other conditions such as those permitting drug testing and requiring the defendant to participate in drug rehabilitation programs or treatment provided more appropriate means of mitigating risk in the defendant’s case. Finally, it was effectively contended that proposed condition 16 might lead to the defendant being less than honest with his supervisors because of the fear of reincarceration as a result of drug use in breach of the condition.

38. [98]

    Notwithstanding the points made on the defendant’s behalf, it appears to me that proposed condition 16 has a substantial role to play in reducing the likelihood that the defendant will relapse into methylamphetamine use and the abuse of other prohibited drugs and thus would play a substantial role in reducing the risk of his relevantly reoffending. This was particularly supported by the evidence of Dr Dayalan which has been quoted above.

39. [99]

    It may be accepted that a heavy-handed approach to enforcement of this condition could lead to reincarceration and could adversely affect his rehabilitation and possibly his willingness to engage with supervision. Nonetheless, in my view the condition remains suitable and necessary, especially in the circumstances where, while on parole and subject to the ISO, the defendant was subject to essentially the same condition and was apparently aware of this condition. Given his cognitive deficits, if such a condition were not included under the ESO, the defendant may, wrongly, form the view that, because the condition had been removed, lapsing into prohibited drug use was in some way either permitted or would be tolerated by those supervising him without any possible sanction. If that were to occur, the risk of a significant relapse would be substantially increased and this would in turn lead to a significant increase in the risk of his reoffending.

40. [100]

    Furthermore, there was an agreed position reached by the parties as to how breaches of a condition such as proposed condition 16 were dealt with by the Extended Supervision Order Investigations Team (ESOIT). In substance, it was accepted that where there was a prima facie breach of a drug abstention condition the usual procedure is for the relevant stakeholders to convene a meeting and to discuss the appropriate way forward. The stakeholders would include, in the defendant’s case, the ESOIT team, including Ms Slattery‑McDonald and the DSO, a Forensic Psychology Services psychologist, Police and other relevant stakeholders such as a representative of NEAMI, a community organisation which provides a number of services, such as a through‑care support service for a number of months after release from custody, transport and accommodation as well as assisting with filing an NDIS application, as occurred in the defendant’s case. Whilst efforts would be made to maintain the defendant on the ESO and to direct him to other forms of treatment as opposed to the penal sanction path, the ultimate decision concerning prosecution for a breach remains with the police and they will take into account considerations of current risk. If the condition was implemented in this way, the potential for it to be counterproductive so as to justify not including the condition was, in my view, effectively eliminated.

41. [101]

    Finally, it can be noted that the defendant has ongoing issues relating to use of prohibited drugs. For example, in the breach of parole report dated 7 July 2023 it was recorded that the defendant reported that he continued to associate with anti-social acquaintances and admitted standing over other persons subject to supervision, demanding they allegedly purchase methamphetamines for his consumption. He also returned positive drug test results in June and July 2023 and engaged in on-going drug use in September 2023 as recorded in his case management notes for 22 September 2023, while subject to conditions prohibiting drug use. As recently as July 2023 and when he was subject to supervision, Forensic Psychology Services expressed the view that, in the defendant’s case, there was significant acute risk and he demonstrated an inability to safely manage that risk.

42. [102]

    Given the experts’ evidence, the significance of drug use in previous offending and recent difficulties in relation to drug use, I was satisfied that proposed condition 16 should be imposed as one of a combination of means of assisting to mitigate the risk of further serious offending.

43. [103]

    As to the proposed alcohol related conditions, Dr Dayalan was of the opinion that “alcohol use was involved prior to both the offences for 1990 and the 1998, so I would think that it's quite relevant that there's some monitoring of his alcohol use in the community”. Dr Davis stated:

44. [104]

    The defendant submitted that since there was no evidence that alcohol abuse or attendance at licensed premises had been a concern for the defendant in recent years, it had not been identified as a meaningful contributor to his offending and monitoring would be facilitated by the obligation to undergo testing as directed, the condition was unnecessary. In addition it was said that, if it were necessary to prevent his consumption of alcohol, that could be done by way of a direction not to consume, as proposed by the defendant.

45. [105]

    In all the circumstances and as apparently accepted by the parties, a condition regulating consumption of alcohol is appropriate. As to the different versions proposed, it appears to me that the State’s proposed version of condition 17 allows more effective monitoring, by means of requiring disclosure in addition to testing, and provides scope for more flexible supervision compared to the version proposed by the defendant which involves limited if any scope for monitoring in addition to testing and provides in essence for prohibition rather than permission. For those reasons, I decided to impose condition 17 in the form put forward by the State.

46. [106]

    As to proposed condition 19, both Dr Dayalan and Dr Davis thought such a condition was consistent with the alcohol monitoring condition and was relevant. Dr Davis noted in his evidence that the defendant was in an hotel before he killed somebody in 1990, but that did not necessarily mean that being in a hotel was a risk factor for him killing somebody. Nonetheless, Dr Davis was of the view that the type of approval process envisaged by proposed condition 19 was preferable early on in the order and a relaxing of restrictions concerning notification may be fine after a period of stability.

47. [107]

    The defendant effectively submitted that the defendant had limited mobility and almost no pro-social network and that proposed condition 19 would impede beneficial socialisation and lead to social isolation. It was contended that “it is appropriate that he be permitted to attend these locations and partaken alcohol consumption unless and until some risk-related reason arises for prohibiting him from doing so”.

48. [108]

    Proposed condition 19 does not prohibit the defendant from attending licensed premises including hotels, bars, racecourses and licenced clubs outright. It simply requires the prior approval of the DSO to do so. In my view, this did not involve an unreasonable restriction or one which was likely to cause social isolation, if implemented reasonably. There was nothing to suggest that approval to attend such locations would be withheld punitively or unreasonably. Although there were other conditions also directed to mitigating the risk associated with alcohol consumption, in my view this proposed condition provided a useful adjunct to those other conditions and thus would assist in ensuring that the risk posed by the defendant was adequately mitigated.

49. [109]

    In light of the experts’ evidence and in the circumstances, I was satisfied that proposed condition 19 was appropriate and I decided to include it.

50. [110]

    The State proposed that a condition in the following form should be included:

51. [111]

    Dr Dayalan did not “have a problem with such a condition” as it was unlikely to have a negative impact on the defendant’s rehabilitation but otherwise did not think that it served a substantial purpose. Dr Davis’s evidence in relation to both proposed conditions 26 and 27 (the latter of which is now not opposed) was:

52. [112]

    Dr Davis also explained that in his view the proposed conditions had a real role to play in managing the defendant’s risk in the community based on his opinion that:

53. [113]

    Dr Davis’s opinion was also that the defendant’s declining physical health might lead to an increased likelihood of a resort to weapons such as a firearm. He said:

54. [114]

    The defendant submitted that the proposed condition prohibiting the defendant from possessing or using a firearm was not supported by the evidence noting that the comment referred to by Dr Davis was made some decades ago, there was no evidence of the defendant ever taking any steps to obtain a firearm or otherwise carrying through on the threat. It was also submitted that the conduct prohibited by the proposed condition was already illegal and that there would be significant regulatory and administrative barriers to obtaining a firearm. Thus, it was submitted that the utility of the proposed condition only arose in a “speculated future scenario” for which no present evidence existed.

55. [115]

    In my view, Dr Davis articulated a basis for imposing proposed condition 26 which came close to being merely speculative. Nonetheless, there was evidence in the breach of parole report dated 7 July 2023 that the defendant had made threats to harm persons in the community and those threats were sufficiently serious to cause the Police to notify Community Corrections of their intent to commence an assessment for a Weapon Prohibition Order. In addition, such a condition would not be unreasonably restrictive or intrusive because it is unlikely that the defendant would ever have a legitimate need to possess or use a firearm and the condition would not be likely to prohibit something which he would otherwise be able legally to do. Furthermore, if the defendant did obtain a firearm and attempt to use it, the consequences may be of the very most serious nature, especially since, in the past, his offending was driven, at least in part, by vindictive anger especially towards women and the risk of his reoffending would be significant if such anger issues remained or re-emerged.

56. [116]

    In all the circumstances, I was satisfied that proposed condition 26 had a legitimate function to play in assisting to mitigate the risk posed by the defendant and was not so restrictive or punitive that the benefit would be outweighed by those considerations. Accordingly, I included condition 26 in the conditions to be imposed.

57. [117]

    In reaching my conclusions concerning the appropriateness of the contested conditions, I proceeded on the basis that the implementation and enforcement of the conditions would be reasonable, responsive to the defendant’s cognitive, mental health and physical conditions and essentially directed at reducing the risk of reoffending and encouraging his rehabilitation. This was supported by the evidence before me from Ms Slattery‑McDonald and the facts agreed between the parties in that regard. If that understanding proved not to be the case, consideration could be given as to whether the circumstances had sufficiently changed that a variation of the conditions under s 13 of the CHRO Act was available or appropriate.

Orders

1. [118]

   For all these reasons, I made the orders set out above at [8] on 12 April 2024.