State of New South Wales v Arthurell (Preliminary)

1. [1]

   HER HONOUR: Regina Kaye Arthurell, who was formerly known as Reginald Kenneth Arthurell, and who will be referred to hereafter as “the defendant”, is a person with criminal convictions for three homicides. They are convictions for two counts of manslaughter (from 1974 and 1981) and, from 1995, for murder. The 24 year sentence imposed upon the defendant for the last of those three very serious crimes is due to expire on 24 May 2021.

2. [2]

   The plaintiff, the State of New South Wales, (“the State”) contends that the defendant is a violent offender who poses an unacceptable risk of committing another serious offence if not made subject to a supervision order, as provided for by the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”). Proceedings under the Act were initiated by the State by summons filed on 11 December 2020.

3. [3]

   The matter came before me for the preliminary hearing on 14 April 2021 and, leave having been granted to the State to file an Amended Summons in Court, the Court made the interim orders sought, together with other timetabling orders, on the following day, 15 April 2021. The substantive orders were as follows:

4. [4]

   The Court’s reasons for making those orders were reserved until today.

Preliminary Matters

1. [5]

   There was no dispute at the hearing before me that those matters mandated by s 5B and s 6 of the CHRO Act have been met. That is, the defendant is an “offender” as defined by s 4A; and a “supervised offender” as defined by s 5I.

2. [6]

   There was also no dispute that, at this preliminary stage, and proceeding on the basis that those matters alleged in the documentation supporting the application can be proved pursuant to s 7(4), the Court would be satisfied of the test set out at s 5B(d) of the Act:

3. [7]

   The only issue at the hearing before me was the precise terms of some of the conditions to which the defendant would be subject pursuant to the interim supervision order (“ISO”).

4. [8]

   Notwithstanding the defendant’s concession, the Court must be independently satisfied of the s 5B(d) test. As I indicated to the parties at the preliminary hearing, having read the evidence relied upon by the State I was so satisfied.

A Preliminary Note about Pronoun Use

1. [9]

   The defendant was born and lived much of a long life as a man. All of the defendant’s crimes were committed when a man, and much of the documentary record refers to the defendant by the name Reginald Kenneth Arthurell, and uses the pronoun “he”. Since entering custody on the last occasion, the defendant has expressed the wish to live as and be seen to be a woman. The defendant now uses the name Regina Kaye Arthurell, dresses as a woman, and prefers to be referred to by the feminine pronoun. No gender reassignment surgery has yet taken place.

2. [10]

   In this judgement, where pronoun use is necessary, it will be given to reflect the defendant’s accepted gender at the relevant time. Although that will necessarily lead to inconsistency between gender references to the defendant at the present time, as opposed to gender historically, it will more accurately reflect the reality of the defendant’s life and crimes than would references to a female offender.

The Evidence

1. [11]

   The State read the affidavit of David Yang affirmed on 9 December 2020, by which Ex. DY-1 was adduced. Further, two bundles of notes extracted from the records of the Offender Information Management System (“OIMS”) of Corrective Services New South Wales (“CSNSW”) were tendered, the second of the two bundles at the defendant’s request. The notes became Exs. A and B respectively.

2. [12]

   Contained within Ex. DY-1 is the defendant’s criminal history and details of his most serious offences. The defendant, who was born in 1946, first appeared before a (children’s) criminal court in 1962, when he was dealt with for stealing. A further three counts of stealing were before the Children’s Court that year, with the defendant ultimately committed to an institution.

3. [13]

   For the balance of the 1960s the defendant was frequently before the courts in this State and in Queensland, charged at various times for vagrancy, stealing, possession of an unlicensed pistol, possession of stolen property, and other dishonesty offences. He left the State in 1974.

4. [14]

   On 12 May 1982 the defendant was convicted of manslaughter in the Supreme Court of the Northern Territory, and sentenced by Kearney J to a term of 12 years imprisonment, with a non-parole period of 6 years. The crime occurred on or about 2 November 1981; the victim was a 19 year old Naval sailor whom the defendant and a co-offender, Neil Buckley, had agreed to rob. Buckley had earlier tied up the young man and taken his car. Using the stolen vehicle, he drove to the defendant’s location and picked him up. They then returned to where Buckley had left the victim, but found him gone. The two men went in search of the victim and, finding him, they together assaulted him. Although it was Buckley who, the sentencing judge found, struck the blow that was ultimately fatal, both offenders had been engaged in a joint enterprise to assault and rob the victim. He died from head injuries.

5. [15]

   The crime was described by Kearney J as:

6. [16]

   His Honour concluded that “it was a very bad case of manslaughter”. The defendant was sentenced on the basis that he had experienced a violent upbringing and, although he had a criminal history, he had not offended since 1969: The Queen v Arthurell and Buckley (Supreme Court (NT), 12 May 1982, unrep)

7. [17]

   In fact, the defendant had killed his step-father in 1974 in Sydney although, having fled New South Wales immediately afterwards, he was not charged with the crime until after the expiration of the non-parole period (“NPP”) of the Northern Territory sentence.

8. [18]

   On 24 July 1989 the defendant was convicted for the second time of manslaughter, having been extradited to New South Wales from the Northern Territory. The homicide was committed on 21 May 1974. The victim was the defendant’s step-father, with whom he, his sister, and his mother had formerly lived. There was evidence before the sentencing judge, McInerney J, that the deceased had been a heavy drinker, and had both sexually and physically assaulted the defendant and his sister when they were children. The defendant’s sister described “a life of terror” dominated by the “brutish behaviour” of the deceased: R v Arthurell (Supreme Court (NSW), 24 July 1989, unrep) (p 2).

9. [19]

   The defendant was ejected from the home by the deceased at some point, and had little contact with him for many years thereafter. His life after leaving home was that of an itinerant, working in short term jobs, drinking heavily, and marrying briefly.

10. [20]

    In 1974 the defendant met his step-father by chance and there was some ongoing contact between them for a time. On 21 May 1974 the defendant went on “a drinking binge”, encountering his step-father at one of the venues in which he was drinking, and accompanying him to his home. The two men argued, with the deceased insulting the defendant’s mother and father. The deceased, enraged by what was said, took up a large kitchen knife and stabbed his step-father a number of times to the chest. The “attack became frenzied”. After his step-father died, the defendant took his car and fled, driving in the direction of South Australia.

11. [21]

    Later, in November 1981, after a warrant had been issued for the defendant’s arrest for the murder of his step-father by the NSW Coroner, he was apprehended in Queensland. By that time the defendant was also wanted for another homicide, in the Northern Territory. He was extradited to the Territory first, and served the sentence referred to above for manslaughter. He was then extradited from the Territory to New South Wales to face the charge of murdering his step-father. Ultimately, the Crown accepted a plea of guilty to manslaughter, on the basis of substantial provocation.

12. [22]

    The sentencing judge accepted that, between the deceased’s insults directed to the defendant’s parents, and the “cancer in [the defendant’s] mind” concerning the earlier childhood abuses, there was “considerable provocation” by the deceased, leading to the “explosive atmosphere” in which the stabbing occurred. His Honour concluded that the nine stab wounds inflicted on the deceased suggested a “complete lack of control” by the defendant. He accepted the defendant’s arguments that he had undergone a “remarkable transformation” during his incarceration in the Northern Territory, where he had become a committed Christian, and that he was remorseful for his conduct.

13. [23]

    The defendant was sentenced to a term of 11 years imprisonment, with a NPP of 4 years and 6 months. The sentence commenced on 11 May 1988 and expired on 10 May 1999. The NPP expired on 10 November 1992.

14. [24]

    On 3 October 1997 the defendant was convicted in this State of murder and sentenced to a term of 24 years imprisonment, with a NPP of 18 years. The sentence commenced on 20 May 1997 and will conclude on 24 May 2021. The NPP expired on 24 May 2015. This is the “index offence”.

15. [25]

    The victim of the crime was the defendant’s former partner, Ms M. She was murdered by the defendant in early 1995. Their relationship had ended by that time, but the defendant had returned to see Ms M, despite being unwelcome. There had been an argument, and the defendant had struck Ms M to the back of her head using a piece of wood. Leaving her, the defendant searched for and found the registration papers to Ms M’s car. He stole the car and fled, driving to South Australia, where he sold Ms M’s car. The judgment of Hunt CJ at CL records that the defendant was “on the run” for a time before his apprehension in Queensland: R v Arthurell (Supreme Court (NSW), 3 October 1997, unrep).

16. [26]

    The crime was one of considerable violence. The forensic pathologist who examined Ms M considered that a severe amount of force would have been required to cause the many fractures to the base and back of her skull, consistent with the sort of force more ordinarily seen in motor vehicle crashes. Although the defendant denied having struck more than one blow, the forensic evidence suggested, and the sentencing judge accepted, that at least two blows were struck, with the second struck after the deceased had fallen to the ground following the first blow.

17. [27]

    His Honour concluded that, “such was the extent of the falsity and contradiction” in the history the defendant gave to others, it must be regarded as unreliable. The sentencing judge rejected the defendant’s claims to having been intoxicated when he murdered Ms M, and rejected his assertions that he had not intended to kill or seriously harm her. Instead, his Honour concluded that the defendant had acted with an intention to kill. The sentencing judge found (at p 5) that:

18. [28]

    Having observed that Ms M had treated the defendant with compassion, his Honour continued, at pp 5-6:

19. [29]

    The defendant murdered Ms M at a time when he was at large, having breached the parole to which he was released after serving the minimum term of the sentence imposed upon him for the May 1974 manslaughter of his step-father. Referring to that sentence, Hunt CJ at CL observed that the “remarkable transformation” that McInerney J found the defendant had undergone was “ephemeral”. He sentenced the defendant on the basis of his “continuing attitude of disobedience to the law” and “his dangerous propensity”. As to future dangerousness, his Honour observed (at p 10):

20. [30]

    Although the sentencing judge accepted that the defendant had experienced a violent upbringing at the hands of his step-father, he was not satisfied that there was anything that mitigated the seriousness of the crime.

21. [31]

    In contemplation of these proceedings a risk assessment report (“RAR”) was prepared on 20 August 2020 by Samuel Ardasinski, Senior Psychologist with the Serious Offender’s Assessment Unit. Mr Ardasinski interviewed the defendant, and reviewed a significant amount of documentary material, much of it drawn from the extensive record held by CSNSW.

22. [32]

    Mr Ardasinski noted that the defendant was a 74 year old man who identified as aboriginal and transgender, in the defendant’s phrase, a “trans womyn”. The defendant was cognitively intact and appeared to be “reasonably intelligent”. There was no evidence of any mental disorder.

23. [33]

    Mr Ardasinski referred to the defendant’s family circumstances – principally derived from the defendant’s self-report - and noted the identified links between childhood trauma and the development of a personality disorder, and of increased risk of future violence.

24. [34]

    The defendant gave a history of being born in Moree, and subsequently raised by a woman whom it is now understood was not the defendant’s natural mother. His true parents were aboriginal, although the identity of the defendant’s father is not known. From the age of 7 to about 14 years the defendant was physically, emotionally, and sexually abused by his step-father. This contributed to the defendant’s later abuse of alcohol. The defendant left home at about the age of 15 and lived a vagrant lifestyle thereafter.

25. [35]

    The defendant claimed to have lived as a woman in early life, but Mr Ardasinski could find no evidence of that prior to 2019, when the defendant “disclosed her gender identity incongruence to her treating psychologist”. Similarly, Mr Ardasinski could find no evidence supportive of – and some to disprove – the defendant’s claims to have travelled and fought in combat in Zimbabwe and South East Asia during the Rhodesian Bush War and the Vietnam War respectively. This experience, the defendant said, had “normalised killing”.

26. [36]

    Having noted the circumstances of the defendant’s three homicide convictions Mr Ardasinski observed that the defendant had “maintained partial denial or minimisation” of his part in them. Of the three killings, the defendant suggested that his sister had killed their step-father, after he had left the step-father’s house; that Neil Buckley had killed the young sailor in the Northern Territory whilst the defendant had been asleep or unconscious from alcohol; and that Ms M had hit her head after the defendant pushed her from bed. The defendant also claimed that his step-father had set him up in relation to other entries on his criminal history, of which he was innocent.

27. [37]

    The defendant is regarded as a compliant inmate who does not present a management problem, and who has actively engaged in work and education in custody. This is noted to be in contrast to the defendant’s previous poor response to community supervision, the index offence of murder having been committed when in breach of parole for manslaughter.

28. [38]

    The defendant has no concerning mental health issues and age related cognitive decline has been ruled out relatively recently.

29. [39]

    In custody the defendant successfully participated in the Violent Offenders Therapeutic Programme (“VOTP”) between October 2012 and July 2014, with early hostility manifested in his involvement, and an “exemplary” attendance record. There have subsequently been years of follow up and maintenance work completed.

30. [40]

    Noting the proviso that it is not scientifically possible to accurately predict whether an offender will or will not reoffend, Mr Ardasinski referred to earlier risk assessments completed with respect to the defendant in the past, all of them in a custodial setting. A 2014 assessment using the Level of Service Inventory – Revised (“LSI-R”) actuarial tool returned an assessment of medium to low risk category for general and violent recidivism. Assessments using the Violence Risk Scale (“VSR”) have been conducted in 2013 (prior to completion of the VOTP), 2014 (after the defendant completed the programme) and in 2018. Although the score returned was reduced on each occasion, the result for each test consistently placed the defendant in the medium risk range for violence.

31. [41]

    Mr Ardasinski administered the Violence Risk Appraisal Guide – Revised (“VRAG-R”) in August 2020 to assess risk of future violence. The defendant fell into the high risk range. Using a tool known as the Historical Clinical Risk -20 (“HCR-20”), and again noting the limitations of tools such as this, Mr Ardasinski determined that a moderate level of effort will be required if the defendant is to avoid future violence.

32. [42]

    A number of specific matters were noted to be relevant to the defendant’s management. As the defendant has had very limited time in the community – 4 years and 4 months over the past 38 years and 9 months – there is little evidence as to how the defendant will manage out of prison. It is difficult to predict how an apparent capacity to exercise control in a custodial environment will translate to a community setting. Issues with emotional control will need to be monitored, as will the risk of alcohol use, a factor in all three homicides committed by the defendant. The defendant has limited support in the community and a “long-term support, Kiwi”, who is also an offender whose parole will shortly expire, may be at risk of violence given the nature of the relationship (possibly intimate) between he and the defendant, and the past correlation between domestic relationships and serious violence. It was thought that the most likely risk scenario for further serious violence would be within a domestic context, particularly if alcohol misuse was a factor. Mr Ardasinski observed that:

33. [43]

    Overall, it was considered that the defendant falls in the moderate risk category for repeat violence, including serious violence. If subject to an order, Mr Ardasinski thought that the defendant should be subject to intense supervision, strict monitoring, and specific risk management strategies including continued access to VOTP Maintenance, scrutiny of social contacts, urinalysis to detect alcohol use, electronic monitoring, and schedules of activities.

34. [44]

    A risk management report also forms part of the evidence. It was prepared by Erin Kirkwood, Senior Community Corrections Officer, on 16 October 2020. Ms Kirkwood noted that the defendant has been generally well behaved in custody, is regarded as a trusted inmate, and has steadily progressed through security classifications, receiving minimum security classification in March 2017.

35. [45]

    The defendant has participated in a number of rehabilitative programmes over the years spent in prison, including CALM (Controlling Anger and Learning to Manage It) in 2010, Getting SMART in the same year, the VOTP from 2012, and VOTP Maintenance from 2014. Educational and vocational courses have also figured, with the defendant undertaking training in food management, forklift handling and other practical skills, as well as some tertiary courses. The defendant has been regularly employed, most recently as a Sweeper.

36. [46]

    The suggested plan to manage the risk posed by the defendant is to require regular meetings with supervisors, including at places of accommodation or other community based facilities, announced or unannounced; monitoring of contact with others; the use of a schedule of movements and a curfew; electronic monitoring; restrictions on aspects of daily life such as associations or attendance at particular places; alcohol testing; search and seizure; psychological intervention; and a ban on weapons possession.

37. [47]

    Ms Kirkwood considers that the defendant will require a substantial degree of support to live in the community without resorting to “maladaptive coping mechanisms or risk related behaviour”.

38. [48]

    The State also tendered a quantity of treatment and other reports concerning the defendant, relevant to the years spent in custody. These include a report as to the defendant’s participation in the VOTP, a neuropsychological assessment (which found no evidence of dementia), a risk assessment report from 2018, and a number of reports to the Parole Authority. All of this material was considered by Mr Ardasinski and incorporated to a degree in his report. It is not proposed to summarise it further here, other than to note that, on 22 October 2020, the Parole Authority determined to grant the defendant parole, with conditional release occurring on 12 November 2020. The defendant was made subject to numerous conditions of parole, and was required to live at a Community Operated Support Program accommodation facility (“COSP”) and report to a Community Corrections office.

39. [49]

    Ex. A contains notes dated from 6 January 2021 to 16 March 2021. As at the former date, the defendant was residing in a COSP, and hopeful of gaining employment in a leather shop. A desire was expressed to look for independent accommodation, which the supervising officer approved.

40. [50]

    In subsequent entries the supervising officer noted that the defendant was experiencing problems with eyesight, and engaging with church and transgender groups in the community. There were ongoing issues with the schedule the defendant is required to submit, with frequent changes being sought to be made to the schedule, sometimes by telephone at the last minute. The defendant regularly expressed frustration at not being permitted to associate with Kiwi, who had also been released to parole.

41. [51]

    Ex. B contains OIMS entries for 2 December 2020 to 8 December 2020. The entries deal with the defendant’s early residence at the COSP, and efforts to establish things such as a telephone account. The defendant also reported having purchased a number of wigs to wear, and the enjoyment derived from wearing wigs, female clothes, and make-up.

Determination

1. [52]

   As noted, there was no dispute between the parties that the evidence put before the Court could, if proved, satisfy the statutory test for an Extended Supervision Order (and also an ISO) to be made. That is certainly my view. The defendant is an individual who has thrice violently taken the life of another person and who, consequently, has almost no experience of living in the community in a peaceable way, or at all. In his report, Mr Ardasinski referred to a quote from the literature of risk assessment: “The more we know of an offender’s life the easier it is to predict the remainder”. Accepting that, the defendant’s history can only point to an unacceptable risk of further serious violence, notwithstanding advancing age.

2. [53]

   Mr Ardasinski noted that the defendant has navigated a custodial environment at least in part by living the life of a fantasist: asserting a history of engagement with the defence forces and involvement in combat at a time when the defendant’s criminal history would have prohibited membership of the military; asserting a history of involvement with transgender radicalism dating back decades, even though all objective evidence is to the contrary; and so on. The limited connection between the defendant’s claimed history and the reality, coupled with the defendant’s past incapacity to exercise reasonable self-control, will make for likely stress in reintegrating into the community. The prospect of future violence in such unstable circumstances is clear and must be managed.

3. [54]

   The only real question at the preliminary hearing was the necessity for or wording of – ultimately - two particular conditions: conditions 6 and 36. In the amended summons those conditions are expressed as follows:

4. [55]

   The issue with condition six is the length of notice the defendant is required to give of a weekly schedule, and any amendment sought to the schedule of movements. The defendant submitted that that the notice period to the schedule should be reduced from three to one days’ notice. As I observed at the hearing of the matter, the issue is a practical one. Some reasonable notice of the schedule is required so that those officers administering it have a proper opportunity to do so. One days’ notice is insufficient to that end; three is necessary for the effective supervision of the defendant. The condition imposed by the Court requires 3 days’ notice for the schedule, and 24 hours notice for amendments to schedules. Conditions five and six deal with these matters.

5. [56]

   The dispute concerning condition 36 arises from the defendant’s wish to wear female wigs, clothes and make-up, potentially breaching condition 36 as sought. Since surveillance is one means of monitoring and supervising the defendant to mitigate risk, in my view the defendant must advise the supervising officer of any newly acquired wig, and permit a photograph to be taken of the wig when worn, so that supervision can be adequately implemented. Conditions 36 and 37 deal with this aspect of the matter.

6. [57]

   The following orders were made on 15 April 2021:

   1. (1)

      Order that, pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

   2. (2)

      Order that:

   3. (3)

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

   4. (4)

      Order that the parties comply with the following timetable:

   5. (5)

      The matter is adjourned for the final hearing of the plaintiff’s Amended Summons to 5 July 2021, at a time to be advised by the Court, with a 1 day estimate.

   6. (6)

      Liberty to the parties to restore the matter to the list before Wilson J within 5 days of the date of these orders.

   7. (7)

      Reasons reserved.

   8. (1)

      any written or printed material;

   9. (2)

      any picture, painting or drawing;

   10. (3)

       any carving, sculpture, statue or figure;

   11. (4)

       any photograph, film, video recording or other object or thing from which an image may be reproduced;

   12. (5)

       any computer data or the computer record or system containing the data; and

   13. (6)

       any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

   14. (7)

       A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and

   15. (8)

       A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.