State of New South Wales v Kaiser

1. [1]

   The State of NSW (“the State”) seeks final orders against the defendant Mr Kaiser under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Mr Kaiser has been in the community on parole with conditions since 9 June 2021. His current sentence will expire on 9 December 2022.

2. [2]

   The State seeks an order in its Further Amended Summons dated 26 October 2022 that Mr Kaiser be made subject to an extended supervision order (ESO) for a period of 2 years.

3. [3]

   Mr Kaiser, through his counsel, Mr Carroll, acknowledged that the statutory pre-conditions for making an ESO are met, but opposes an ESO being made because he does not present an unacceptable risk of committing a further serious violence offence if not kept under supervision under an ESO.

4. [4]

   Alternatively, Mr Carroll argued that if an ESO is made, it mirror his parole conditions, (except without electronic monitoring), and be limited to 1 year.

5. [5]

   For the reasons that follow, I am not satisfied to a high degree of probability that Mr Kaiser presents an unacceptable risk of committing a further serious violence offence if not kept under supervision under the order and so the summons is dismissed with costs.

The preliminary hearing and interim orders

1. [6]

   The initial summons was filed in May 2017. Due to other offending the summons remained in abeyance until a preliminary hearing before Walton J on 5 December 2018. Before his Honour published his judgment later in December 2018, Mr Kaiser was sentenced by Ellis DCJ for his 2017 offences and so the final hearing was adjourned to May 2020.

2. [7]

   On 8 June 2020 Garling J dismissed the State’s application for an ESO on the basis that Mr Kaiser was not a “supervised offender”: State of New South Wales v Kaiser [2021] NSWSC 646.

3. [8]

   On 8 June 2022 the Court of Appeal upheld the State’s appeal from the decision of Garling J and set aside the dismissal of the ESO application: State of New South Wales v Kaiser [2022] NSWCA 86, holding that Mr Kaiser was a “supervised offender” for the purposes of s 5B(2) of the Act.

4. [9]

   Mr Kaiser’s current sentence expires tomorrow. The hearing before me on 4 November 2022 proceeded on the basis that final orders were required.

Evidence at the final hearing

1. [10]

   The State tendered four affidavits:

2. [11]

   Pursuant to the requirements of the Act, Court-appointed expert assessments took place. They are already somewhat out of date. Dr Kerri Eagle, Psychiatrist, interviewed Mr Kaiser in March 2021 leading to her 8 April 2021 report which was followed by two supplementary reports on 30 April 2021 and 17 October 2022.

3. [12]

   Mr Kaiser was also assessed by Patrick Sheehan, Forensic Psychologist, on 24 March 2021 the details of which were set out in his report of 6 April 2021 followed by supplementary reports dated 30 April 2021 and 17 October 2022.

4. [13]

   Whilst all tendered by the State, the reports are not evidence of one party or the other, but objective expert evidence provided for the assistance of the Court. Neither expert was required for cross-examination.

5. [14]

   Mr Kaiser tendered an affidavit of his solicitor, Michelle Macdonald affirmed 31 October 2021, an affidavit of Mavis Kaiser (Mr Kaiser’s mother) sworn 4 May 2021 and an affidavit of Wayne Robertson affirmed 4 May 2021. Ms Kaiser deposed to the background tragedy of the shotgun suicide of Mr Kaiser’s older teenage brother when Mr Kaiser was 9 years old, her own diagnosis of Parkinson’s disease and her good relationship with Mr Kaiser over the years. Mr Robertson is a former employer who deposed to Mr Kaiser’s work ethic and reliability when not unwell with bipolar disorder and when taking his prescribed medications.

Background facts

1. [15]

   Mr Kaiser is now almost 52 years old. He completed school to year 10 and began a sheet metal apprenticeship and later worked as a truck driver. He suffers from bipolar affective disorder and has a lengthy history of illicit substance use including cannabis, amphetamines and methylamphetamines. This use has contributed to deteriorations in his mental illness in the past.

2. [16]

   He has a long history of stalking, harassing and sometimes harming females, including women with whom he was in a relationship.

3. [17]

   He was convicted of manslaughter on 20 March 2006. This is the index offence. This description of the offending is taken from the remarks on sentence of Barr J dated 29 November 2007:

4. [18]

   He was sentenced to 10 years 11 months imprisonment with an 8 year 2 month non-parole period.

5. [19]

   Shortly after his release to parole in December 2016, he commenced a relationship with another woman and by February 2017 he had relapsed into drug use. He went on to commit a series of domestic violence offences against her including intentional choking in May 2017.

6. [20]

   For that offending he was returned to custody in May 2017. He was sentenced on 11 December 2018 by Ellis DCJ to 5 years imprisonment with a 3 year 6 month non-parole period.

7. [21]

   Whilst in custody Mr Kaiser completed the Violent Offenders Therapeutic Program (VOTP) over the space of a year. He also commenced on Buprenorphine (Depot) injections in October 2020.

8. [22]

   He was released to parole on 9 June 2021. Prior to that, he had been in effect in continuous custody since mid-2007, save for that brief period of release between December 2016 and May 2017.

9. [23]

   Whilst on parole he participated in Buprenorphine therapy in the community and complied with conditions of parole which included electronic monitoring of his movements. Putting aside the question of whether his reducing and ceasing the Buprenorphine, (itself a drug addiction), whilst in the community, without prior warning of this to his CSNSW supervising officer was a non-compliance with his conditions of parole, he has been co-operative with parole requirements.

10. [24]

    He has been living with his mother on the North Coast. There is no evidence that he has used drugs or any illicit substances since his June 2021 release, nor has he committed any offences.

The legislative scheme and principles

1. [25]

   The primary object of the Act is stated in s 3(1):

2. [26]

   A secondary object of the Act is to encourage rehabilitation of offenders.

3. [27]

   At a final hearing for an ESO, the Court must first determine whether it is satisfied to a high degree of probability that Mr Kaiser poses an unacceptable risk of committing another serious (violence) offence if not kept under supervision under the order: s 5B(d).

4. [28]

   “Serious violence offence” is defined in s 5A of the Act as:

5. [29]

   I interpolate here to observe that as submitted by Mr Carroll, in March 2006, Mr Kaiser committed a “serious violence offence” as defined. Unlawful and dangerous act manslaughter is captured because of the extended definition in s 5A(2A)(b), which deems the limited intention entailed in manslaughter by unlawful and dangerous act to equate to “recklessness as to causing the death of another person”. Otherwise, a serious violence offence requires an intention to cause death or grievous or actual bodily harm.

6. [30]

   I will return to this feature in my discussion of the expert reports of Dr Eagle and Mr Sheehan which have proceeded, as noted by Mr Carroll, on the basis of erroneous findings by the sentencing judge, Barr J, as to intent. This issue was revisited by the Court of Criminal Appeal in 2009 and held to be in error: Kaiser v R [2009] NSWCCA 130 at [34]. McClellan CJ at CL (with whom Simpson and Howie JJ agreed) said this:

7. [31]

   The making of an ESO requires a state of satisfaction “to a high degree of probability”. This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] per Mason P, Giles and Hodgson JJA.

8. [32]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) [58] per Beazley P.

9. [33]

   In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that “unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15] per Rothman J.

10. [34]

    The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an unacceptable risk (at [44] per Beazley P in Lynn), however consideration of an offender’s circumstances, including the offender’s interest in liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.

Mandatory considerations: s 9(3) of the Act

1. [35]

   The Court is required to have regard to certain mandatory considerations set out in s 9(3) of the Act which include, relevantly to Mr Kaiser, the reports of Dr Eagle and Mr Sheehan; assessments prepared by other qualified psychiatrists, psychologists and registered medical practitioners addressing the likelihood of Mr Kaiser committing a further serious offence; the results of any statistical or other assessments on that issue; any report by Corrective Services NSW as to the extent to which Mr Kaiser can reasonably and practicably be managed in the community; any treatment or rehabilitation programs participated in or offered; options available to Mr Kaiser in the community that might reduce the likelihood of him reoffending; the likelihood that he will comply with the obligations of an ESO; the level of his compliance with any obligations he has been subject to whilst on parole or earlier ESO; his criminal history and pattern of offending behaviour; the views of the sentencing court at the time the sentence of imprisonment was imposed, and any other information available as to the likelihood that the offender will commit a further serious offence.

Criminal history, pattern of offending and views of the sentencing court at the time of sentencing: 9(3)(h) and (hi)

1. [36]

   Prior to the index offence, Mr Kaiser engaged in a pattern of AVO contraventions. He was also charged with stalk intimidate and indecent assault in 2001. The stalk intimidate and indecent assault charges were dealt with under the Mental Health (Forensic Provisions Act) 1990 (NSW).

2. [37]

   In 2004, within the context of a relationship with SM, he was convicted of contravention AVO twice in 2005 and once in 2006, as well as damage property and trespass.

3. [38]

   The index offending occurred in March 2006. He denied involvement and was given Supreme Court bail in April 2006 for charges of conceal murder and supply prohibited drug. He lost his job. His use of drugs (Ice) escalated. He committed various offences including take and drive car, theft, assault, possessing implements and larceny.

4. [39]

   In January 2016, whilst he was outside the correctional facility performing maintenance, he left the grounds of the correctional facility without permission. He stole a car, was pursued by police and threatened to blow himself up at a petrol station by running the car into the petrol bowsers. He ran off and threatened police with a screwdriver when they tried to apprehend him. He was sentenced for this offending.

5. [40]

   He returned to custody where he remained until release in December 2016. There was further offending after that release - again involving violence against a woman set out in [19] of this judgment.

6. [41]

   None of his offending comprises a serious violence offence as defined, other than the manslaughter.

7. [42]

   There were incidents in custody comprising mainly verbal abuse and intimidation when he does not get what he wants. Mr Kaiser tends to use very colourful violent language. To do so is not a serious violence offence.

Court appointed experts: 9(3)(b)

1. [43]

   The Court obtains substantial assistance from recently conducted, thorough and independent assessments by appropriately qualified psychiatrists and psychologists. The need for these assessments and the centrality of their role is enshrined in the Act as they must be obtained if a final order is to be considered. Given the Court has to assess the current risk presented by a defendant, in some cases, outdated and differently directed expert assessments may need to be given less weight than these recent assessments. The reports also need to be based on correct assumptions and histories and to the extent that they are not, lesser weight may need to be afforded to the opinions expressed if they are based on a mistake or incorrect assumption.

2. [44]

   Forensic psychiatrist Dr Kerri Eagle, in her report of 8 April 2021, provided a diagnosis of bipolar disorder. This is a severe mood disorder characterised by manic episodes and recurrent depressive episodes or hypomanic episodes. Dr Eagle says that Mr Kaiser had been stabilised on prescribed medications. Dr Eagle also diagnosed a severe substance use disorder which was at the time of the interview on maintenance treatment.

3. [45]

   During his 2021 assessment with Dr Eagle Mr Kaiser demonstrated in her opinion, that he had difficulty "tolerating a discussion of his offending that involved any scrutiny of his version of events" resulting in increased irritability and hostility. She stated that he did not appear to be "genuinely engaged in the process to any meaningful extent but was initially focused on positive impression management, and when that failed completed the assessment with brief superficial responses".

4. [46]

   In Dr Eagle's view, Mr Kaiser:

5. [47]

   Dr Eagle concluded that Mr Kaiser:

6. [48]

   In her 2022 report, based only on document review, Dr Eagle noted that Mr Kaiser’s historical risk factors remained unchanged, which correlate with a high baseline level of risk and are associated with an increased risk of violence over the longer term.

7. [49]

   Dr Eagle concluded that:

8. [50]

   Dr Eagle noted that Mr Kaiser has experienced stress around the care of his mother owing to her age and illness (Parkinson's disease). This could be a destabilising factor in future. His mother does not appear to provide deterrence as regards the possibility of future offences. He otherwise appears to have limited personal supports. He has shown "ongoing problems with sensitivity to stress and poor coping mechanisms, and this will be a particular area of future risk". His protective factors remain "largely unchanged since my previous reports".

9. [51]

   Dr Eagle acknowledged that Mr Kaiser has demonstrated "some improvements in emotional regulation and the capacity to recognise effective strategies to manage his anger and frustration, but unfortunately he has continued to act impulsively in frustration and anger over the last six months with verbal outbursts towards others and on one occasion by aggression towards physical property".

10. [52]

    Dr Eagle concluded that:

    1. (1)

       Mr Kaiser’s "risk formulation" remains unchanged since her 2021 reports. He remains at an elevated risk of reactive violence towards others, stalking and intimate partner violence, based on his ongoing risk factors.

    2. (2)

       He appears to have benefited from regular contact with parole officers to reinforce strategies to address his risk factors and his ongoing supervision my deter future illicit drug use.

    3. (3)

       He would benefit from the risk management strategies highlighted in Dr Eagle's report dated 8 April 2021 (insofar as they are not being undertaken) and a period ongoing supervision in the community.

11. [53]

    Mr Sheehan is a forensic psychologist. In his report of 6 April 2021, he diagnosed Mr Kaiser with an antisocial personality disorder.

12. [54]

    In Mr Sheehan's view:

13. [55]

    In his October 2022 report based only on document review, not interviewed, Mr Sheehan considered overall that Mr Kaiser has demonstrated progress since April 2021 having completed 16 months supervised release in the community without breach. Of particular significance is his positive engagement in the supervision process having sustained that relationship over time without becoming outwardly adversaria, which he noted as also due in part to the skills of the supervision team.

14. [56]

    Despite that progress, he demonstrated intermittent difficulties in managing his temper and slipping back into old habits of responding to obstacles with grievance and righteous anger which has disadvantaged his community adjustment. In Mr Sheehan's view:

15. [57]

    Mr Sheehan concluded:

16. [58]

    Of relevance is that both Dr Eagle and Mr Sheehan accepted as fact the findings of Barr J at [14] to [15] of the remarks on sentence that there was pre-planning entailed in the 2006 manslaughter and that Mr Kaiser foresaw the possibility of death or injury to his victim. The Court of Appeal held that those findings were not open.

17. [59]

    Second, I find Dr Eagle and Mr Sheehan’s conclusions regarding the risk that Mr Kaiser will commit a serious violence offence if not kept under supervision to be only partially explained and rather speculative.

Reports and assessments of other psychologists and/or psychiatrists or medical practitioners as to the likelihood of the defendant committing a further serious offence; reports of psychologists or others applying statistical or other risk assessments regarding persons with histories and characteristics similar to the offender: s 9(3)(c) and 9(3)(d)

1. [60]

   Dr Parker prepared a risk assessment report in 2017 concluding on the application of various risk assessment tools that Mr Kaiser was at a very high risk of committing domestic violence offending and at a moderate to high risk of violent recidivism. Dr Parker thought at that point (pre-completion of VOTP) that Mr Kaiser had almost no insight into issues which render his relationships dysfunctional.

2. [61]

   On a 2022 file review, (but no interview of Mr Kaiser), Dr Parker maintained his opinion because the area of romantic relationships remained untested and that is where Mr Kaiser’s core problems lie.

3. [62]

   Neither of these reports address the risk of serious violence offending as defined but are focused on any violent offending.

Corrective Services Risk Management Report(s) regarding management in the community: s 9(3)(d1)

1. [63]

   Mr O’Brien and Ms Grabham in their May 2021 report offer the opinion that based on Dr Parker’s assessment of Mr Kaiser, his risk factors comprise criminal peers, substance abuse and criminal thinking and to manage those issues in the community, a comprehensive (and somewhat formulaic) suite of ESO conditions is required.

2. [64]

   In the October 2022 update by Mr Glover and Ms Grabham, there is a focus on conditions “eliminating” certain risks of any offending, with emphasis on his 2017 domestic violence offending. A concern was identified that on interview, Mr Kaiser seemed unable to recognise risk scenarios for violence or risk scenarios for relapse into drug use and how he would manage those things.

Treatment and rehabilitation programs offered in custody and the defendant’s participation in those: s 9(3)(e)

1. [65]

   Mr Kaiser completed the following programs in custody:

2. [66]

   He then completed the EQUIPS Domestic Abuse Program in November 2019 followed by the VOTP in February 2021.

3. [67]

   It should be noted that in December 2015 Mr Kaiser consented to referral to VOTP but in March 2016 he was found to be ineligible for the VOTP because his risk score placed him in only the medium category for risk of reoffending and he “did not appear to have an extensive history of historical or institutional violence”.

4. [68]

   Mr Baldacchino completed a report on 13 March 2021 about Mr Kaiser’s participation in the VOTP concluding:

Options available to the defendant in the community, whether or not under supervision that might reduce the likelihood of him offending over time: s 9(3)(e2)

1. [69]

   The provisions in the Mental Health Act 2007 (NSW) can be invoked to deal with any periods of mental illness or non-compliance with treatment, including scheduling if necessary or a Community Treatment Order. AVOs can be imposed with obvious penalties for breach, including return to custody, something Mr Kaiser is obviously well-motivated to avoid.

The likelihood that the defendant will comply with the ESO obligations?: s 9(3)(e2). His compliance so far with parole: s 9(3)(g)

1. [70]

   As submitted by Mr Carroll, Mr Kaiser has engaged in a number of rehabilitative steps whilst on parole and complied with his parole conditions.

2. [71]

   He was released to parole on 9 June 2021 upon the following conditions:

   1. (1)

      You must be of good behaviour.

   2. (2)

      You must not commit any offences.

   3. (3)

      You must adapt to normal lawful community life.

   4. (4)

      You must report:

   5. (5)

      You must report to a community corrections officer at the times and places directed by the officer*.

   6. (6)

      You must comply with all reasonable directions from a community corrections officer about:

   7. (7)

      You must comply with any other reasonable directions from a community corrections officer.

   8. (8)

      You must permit a community corrections officer to visit you at the place where you live at any time, and permit the officer to enter the premises when they visit you.

   9. (9)

      You must notify a community corrections officer if you change your address, contact details or employment. You must do this before the change occurs if practicable, or within 7 days of the change occurring.

   10. (10)

       You must not leave New South Wales without permission from a community corrections manager.

   11. (11)

       You must not leave Australia without permission from the State Parole Authority.

3. [72]

   He was subject to the following additional conditions:

4. [73]

   Whilst under parole supervision since June 2021 Mr Kaiser has:

5. [74]

   In his supplementary report dated 20 October 2022, Mr Sheehan said this about Mr Kaiser’s progress:

6. [75]

   The intermittent difficulty in regulating his behaviour noted whilst on parole does little to diminish the substantial progress which has been made. As Mr Carroll observed it is apposite to note that the points of conflict have largely been around the defendant’s efforts to improve his ability to re-integrate into the community, for example:

7. [76]

   As Mr Carroll candidly submitted, the likelihood is that Mr Kaiser would breach some aspect of the proposed ESO orders, not by committing a serious violence offence, but by some minor infraction thus criminalising his behaviour. It is likely, (given the JIRS statistics), such a breach would lead to him being returned to custody. This would be counter-productive to rehabilitation.

Does the defendant pose an unacceptable risk of committing another serious violence offence if there is no ESO?

1. [77]

   Mr McGorey on behalf of the State submitted that the material tendered is sufficient to satisfy the Court to the necessary standard of the risk that Mr Kaiser presents and that Mr Kaiser “benefits from the supervision, support and structure he receives from Community Corrections”. That latter observation is of course not the test; nor is it a relevant consideration in the assessment the Court has to make.

2. [78]

   Mr Carroll submitted firstly, no expert or tool is able to predict whether an offender will offend again in the future. Rather, the tools highlight the number characteristics possessed by the defendant that are also possessed by those who re-offend in a violent manner. None of the tools measure the risk of committing a “serious violence offence” as required by the Act. The future prediction based on such tools remains imprecise and imperfect and the Court should exercise caution in placing significant weight on such assessments.

3. [79]

   Secondly, a determination by experts that the defendant poses an “above average” or “well above average” risk does not correspond to the requisite test that the Court needs to consider. The Court needs to determine if such a risk is in fact “unacceptable” and needs to be satisfied to “a substantial degree” of the risk posed. Inherent in the way the Act is structured is that a certain amount of risk can be considered acceptable.

4. [80]

   Mr Carroll emphasised that the State seeks an ESO on the basis of an asserted unacceptable risk of Mr Kaiser (now almost 52 years old) committing a serious violence offence when he has never previously committed an act of violence with an intention or recklessness to death, grievous bodily harm or actual bodily harm.

5. [81]

   Mr Carroll submitted that Mr Kaiser has been crime free in the community (as at the hearing date) for 510 days. He has stable accommodation where he is the carer for his mother. He has the support of his brother and sister. He has been proactive and compliant with his mental health treatment regime. He has abstained from illegal drugs. He has completed all treatment programs that are available through Community Corrections.

6. [82]

   Mr Carroll submitted that Mr Kaiser has demonstrated that he can reintegrate into the community without offending. He has been proactive in ensuring that he addresses his criminogenic needs. He has clearly demonstrated a commitment towards rehabilitation. The imposition of a further ESO is premised on the basis that he will lose this commitment. His progress for this significant amount of time - 18 months - strongly supports a finding that his commitment to his rehabilitation is enduring. Any suggestion that a future offence may amount to a “serious violence offence” is only speculative and cannot satisfy the high degree of probability standard required by the Act. The Court cannot be satisfied on the supporting documentation or the independent Court-appointed expert reports, that any further offence committed by the defendant will rise to the level of a serious violence offence.

7. [83]

   The State bears the onus of establishing that the nature of the risk rises to a risk of a serious violence offence so as to engage the Act’s jurisdiction. The Act does not provide for the continued supervision of persons who have served their sentence where they pose a risk of further violent offending.

8. [84]

   In conducting the evaluative exercise that considers both the gravity of the risk that may eventuate, based principally on offending committed at least 18 years ago, and the inherently uncertain likelihood of that risk eventuating, the Court cannot be satisfied, to the high degree of probability required, that the risk posed is one that is unacceptable.

Decision

1. [85]

   I accept that Mr Kaiser has shown a history since 2009 of successfully engaging in relevant rehabilitation programs while in prison, particularly focused on management of his violence.

2. [86]

   I also accept that since being released into the community, Mr Kaiser has been working constructively with his DSOs and has been actively engaged with cognitive therapy with his private psychologist Vincent Cook. There is no suggestion that he will cease with this privately funded and arranged support. He has abstained from drugs and remained crime-free since June 2021. He has shown focus and determination to rehabilitate himself. He has a mental illness which is managed with medication and counselling.

3. [87]

   Mr Carroll’s submissions set out in [78] to [84] are persuasive. The evidence tendered does not satisfy me to a high degree of probability that Mr Kaiser poses an unacceptable risk of committing a serious violence offence if not kept under supervision under the order. The comments by the experts Dr Eagle and Mr Sheehan to the effect that he may, are in my view entirely speculative.

4. [88]

   The statutory test is not satisfied and the summons must be dismissed.

Orders

1. [89]

   I make the following orders:

   1. (1)

      The Summons is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.