State of New South Wales v Bugmy (Preliminary)

1. [1]

   On 7 February 2017, the State of New South Wales (“the State”) filed a summons seeking certain orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant, William David Bugmy. The ultimate relief sought by the State in its summons is a high risk violent offender extended supervision order (“ESO”) for a period of five years pursuant to ss 5E(1) and 9(1)(a) of the Act.

2. [2]

   The defendant is a 34-year-old Aboriginal man who has spent much of his adult life in custody. He is currently serving a sentence of six years’ imprisonment for intentionally inflicting grievous bodily harm on a prison officer. Although a non-parole period of four years was fixed, the defendant was not released at the expiration of that period. He was released to parole on 19 January 2017 and that parole period expires on 7 April 2017. He will have had the benefit of only ten weeks’ supervision on parole by the time his sentence expires. On 2 March 2017, only six weeks after the defendant was released on parole, he was found by police in an agitated state and in possession of a 0.2g of methylamphetamine. He was charged with possession of a prohibited drug. That matter is listed before the Downing Centre Local Court on 21 April 2017.

3. [3]

   On 29 March 2017, a preliminary hearing was conducted before me under s 7(3) of the Act. I was provided with the relevant supporting documentation and detailed submissions prior to the hearing. A number of interim orders were sought at that time by consent. For the purposes of the preliminary hearing only, the defendant conceded that the statutory criteria for the making of an ESO were satisfied.

4. [4]

   Although the orders sought at the preliminary hearing were not opposed, it was necessary that I be satisfied of certain statutory criteria before making them. The determination of whether the relevant statutory preconditions exist involves an evaluative test that is not capable of being resolved by way of consent. Nonetheless, as Johnson J observed in State of New South Wales v Manners [2008] NSWSC 1242 at [4], the court process is facilitated by the fact that there is no controversy between the parties to be resolved in this respect.

5. [5]

   At the conclusion of the preliminary hearing I was satisfied that the relevant statutory criteria had been met and was in a position to make the orders sought at that time. Those orders included placing the defendant on an interim supervision order (“ISO”) under the Act for 28 days. I indicated to the parties that I would provide my reasons at a later date. These are my reasons for making the orders that I did on 29 March 2017.

Relevant law

1. [6]

   The primary object of the Act is to “provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community”: s 3(1) of the Act. Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2) of the Act.

2. [7]

   Section 7 of the Act prescribes pre-trial procedures upon the making of an application for an ESO. Relevantly, the Court must, if satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender ESO, make orders appointing two psychiatrists and/or psychologists (or a combination thereof) to examine the defendant and directing the defendant to attend to those examinations: s 7(4) of the Act.

3. [8]

   Section 10B of the Act provides that this Court, in proceedings for an ESO, may make an order for an ISO prior to the final hearing if it appears to the Court that the offender’s current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender ESO. Thus, before the orders sought at the preliminary hearing could be made, I had to be satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of a high risk violent offender ESO.

4. [9]

   Section 5E(1) of the Act provides that an offender can be the subject of a high risk violent offender ESO “if and only if” the offender is a “high risk violent offender”. Section 5E(2) of the Act provides that an offender is a “high risk violent offender” if he is a violent offender, and, “The Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he…is not kept under supervision.”

5. [10]

   A “violent offender” is defined in s 4 of the Act as a person over the age of 18 years who at any time has been sentenced to imprisonment for a “serious violence offence”. A “serious violence offence” is defined in s 5A(1)(a) of the Act as a serious indictable offence that is constituted by a person engaging in conduct that, relevantly, causes grievous bodily harm to another person with the intention so to do.

6. [11]

   The offence in relation to which the defendant is currently on parole is one contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). That offence involves the intentional infliction of grievous bodily harm on a person. It carries a maximum penalty of imprisonment for 25 years. I am thus satisfied that the defendant is a violent offender within the meaning of the Act.

7. [12]

   Section 5J(1) of the Act provides that an application for a high risk violent offender ESO may be made only in respect of a “supervised violent offender”. A “supervised violent offender” is a violent offender who, when the application for an order is made, is, relevantly, in custody or under supervision while serving a sentence of imprisonment for a serious violence offence: s 5J(2)(a)(i) of the Act. A person is taken to be serving a sentence of imprisonment whether the person is, inter alia, in custody or on release on parole: s 5J(3). I am satisfied that the defendant is a supervised violent offender within the meaning of the Act and that he is in the final six months of his parole period, as required by s 6(2) of the Act.

8. [13]

   The remaining test to be satisfied in ss 5E(2) and 10B of the Act is that the matters alleged in the supporting documentation before me would, if proved, satisfy me to a high degree of probability that the offender poses an unacceptable risk of committing a “serious violence offence” if he is not kept under supervision.

9. [14]

   It is necessary to have regard to the supporting documentation in order to determine whether this test has been satisfied.

Supporting documentation

1. [15]

   An application for a high risk violent offender ESO must be supported by documentation that addresses the mandatory considerations set out in s 9(3) of the Act and include a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that addresses the likelihood of an offender committing a further serious violence offence: s 6(3) of the Act. The State formally read on its application an affidavit of Matthew Ashworth affirmed 7 February 2017 and tendered Exhibit MA-1, which comprised three volumes of documents and included a Risk Assessment Report under the hand of Dr Richard Parker, psychologist. That exhibited material contains information about the defendant’s criminal history, his response to supervision, and psychological treatment that he has undertaken in custody.

2. [16]

   The plaintiff also read the affidavit of Kenny Ng affirmed 7 March 2017, annexing a report regarding the defendant’s participation in a programme in custody (namely, the Self-Regulation Programme: Violent Offenders (“SRP-VO”)) as well as information regarding his recent charge.

The defendant’s background

1. [17]

   The defendant was born on 23 November 1981 in Wilcannia. The family environment in which the defendant was raised was chaotic and abusive. It was marred by domestic violence, parental alcohol abuse and poor supervision and boundaries. There is some suggestion that the defendant suffers from foetal alcohol syndrome, although that has not been confirmed in the material before me. The defendant has reported being subjected to severe physical abuse at the hands of his father, including being tied up in chains. The violence perpetrated by the defendant’s father upon his mother resulted in her repeated hospitalisation. It involved beatings and stabbings. The defendant was placed into the care of a foster family when he was 11 years old. He commenced sniffing petrol at the age of eight.

2. [18]

   A Juvenile Justice report dated 18 August 1998 states that the defendant required medical intervention for head injuries on 14 separate occasions from 1989 and 1994, when was between 8 and 13 years old. Those injuries were caused both by assaults and the effects of solvent abuse. He began serving short periods of time in juvenile detention at the age of 13.

3. [19]

   When the defendant was not in juvenile detention, he was living with either his parents in Wilcannia or with other relatives in Broken Hill. In his late adolescence he began living with his partner. Their daughter was born in 2001 and another child was born in 2010. That relationship endured until the most recent of his terms of imprisonment, but has now ended. The defendant has never had contact with the younger of his two children. Both the defendant and his former partner are alcoholics and the relationship was marred by significant domestic violence and substance abuse.

4. [20]

   The defendant had little formal education during his troubled youth. He was expelled from high school in Year 7, when he was only 12 years old. A Juvenile Justice report dated 15 August 1994 records his school principal describing his behaviour at school in Wilcannia as “violent and abusive”. He did not attend school in Broken Hill. The defendant was also asked to leave rehabilitation centres on two occasions as a result of his disruptive behaviour. The defendant is unable to read or write. A neuropsychologist, Dr Alex Gilandas, described the defendant in 1998 as having the reading skills normally attained by a child in the first grade of primary school. His overall level of intellectual functioning is in the bottom 2% of the population, placing him in the extremely low range.

5. [21]

   The defendant has been unemployed for most of his life. His longest period of employment lasted around 18 months and was with the Community Employment Developmental Program.

6. [22]

   In 2006, the defendant’s mother died while he was in custody. He was unable to obtain leave to attend her funeral. He has reported going “downhill” after experiencing this loss. He has only limited contact with his father. The defendant is one of seven children born to his parents. Two of his siblings have died. He has a sibling in custody.

7. [23]

   The defendant has a history of self-harm and suicide attempts and has had contact with mental health services whilst in custody. He currently takes an anti-psychotic mood stabiliser daily. He told Dr Parker that that medication is helpful for him.

Criminal history

1. [24]

   The defendant’s lengthy criminal history commenced in 1994 when he was placed on a good behaviour bond at Wilcannia Children’s Court for an offence of stealing. He was aged 12 at that time. His juvenile criminal history also includes entries for break and enter with intent, malicious damage by fire, break, enter and steal, assault occasioning actual bodily harm, assault police officer police officer in execution of duty causing actual bodily harm, and assault with act of indecency. He was on several occasions sentenced to control orders for periods of months.

2. [25]

   The defendant turned 18 in November 1999. He was deal with as an adult for the first time at Broken Hill Local Court in June 2001, where he was sentenced to imprisonment for nine months for assault occasioning actual bodily harm and received shorter terms of imprisonment for various other offences. In March 2003, he was sentenced at Broken Hill Local Court to imprisonment for 15 months, with a non-parole period of 12 months, for assault occasioning actual bodily harm. On the same day, he received a sentence of imprisonment for 18 months, with a non-parole period of 15 months, for assaulting an officer in the execution of duty.

3. [26]

   In July 2006, the defendant was sentenced at Broken Hill Local Court to imprisonment for 18 months, with a non-parole period of 12 months, for two offences of assaulting a police officer in the execution of duty causing actual bodily harm. He was also sentenced in relation to two charges of assault occasioning actual bodily harm on that day.

4. [27]

   In December 2008, at Wilcannia Local Court, the defendant received a sentence of imprisonment for 20 months, with a non-parole period of 15 months, for an offence of reckless wounding. The victim of that offence was his ex-partner. He was also dealt with on that day for offences of stalk/intimidate, common assault and contravening an apprehended domestic violence order.

5. [28]

   He was sentenced in relation to the index offence on 16 February 2012 at the District Court at Sydney, receiving a sentence of six years’ imprisonment with a non-parole period of four years.

6. [29]

   The last occasion on which the defendant was sentenced to imprisonment for an offence was in March 2012 at Dubbo Local Court. He received an aggregate sentence of imprisonment for four years, with a non-parole period of two years, for offences including assaulting an officer in the execution of duty causing actual bodily harm, escaping police custody, and maliciously damaging property by fire.

7. [30]

   The defendant has also received fines for various offences, including damaging property by fire (in 2002 and 2003), receiving (in 2002), and resisting an officer in the execution of duty (in 2003).

The ‘index’ offences

1. [31]

   The defendant was sentenced in relation to the offence of inflict grievous bodily harm with intent on the basis of agreed facts. As at 8 January 2011, the victim was an employee of the Department of Correctives Services. He was working as a Senior Correctional Officer at the Broken Hill Correctional Centre. The defendant was in custody on remand. While on duty, the victim heard the defendant abusing another officer. The victim approached the defendant, who demanded that visiting hours be extended as he was expecting visitors who had not yet arrived. The victim said that he would enquire with another senior officer.

2. [32]

   The defendant then entered an office (which he was normally prohibited from entering) where the victim and another officer were standing. He said that he would fight the victim and made threats of harm to him, including, “I’ll split you open, you cunt.” The victim called a more senior officer and indicated that the Emergency Team might be needed. The defendant walked away and spoke on the telephone with his partner, in which conversation he was recorded saying that he would “split [the victim] open.”

3. [33]

   The Assistant Superintendent of the Correctional Centre attended the wing. He spoke with the defendant. The defendant said, “Come on, you want a piece of me, I’ll split you cunts.” He ran to a nearby pool table and obtained a number of pool balls. He threw two of the balls at the Assistant Superintendent and another officer, both of which missed. The defendant yelled, “Come on cunts, I’ll split youse.”

4. [34]

   The defendant started throwing pool balls at the victim. He said, “[Name] you cunt, I told you I’m going to split you open.” He threw two balls at the victim, which struck him on the back. The victim retreated into the office. According to another officer, the defendant threw two more balls at the victim. One of those balls hit the bars of a gate and splintered. Another hit the victim’s left eye. (His Honour found that the victim was hit by an intact ball, rather than the fragments of the splintered ball). The defendant then climbed onto the roof of the gymnasium and continued to throw pool balls at correctional officers, none of which struck any officer. He climbed down from the roof and surrendered to officers following negotiations. One correctional officer recalled that the defendant said that, “[He] had not finished with [the victim].”

5. [35]

   The victim suffered serious injury to his left eye, including retinal detachment, a ruptured globe, and orbital fractures. He lost sight in that eye permanently.

6. [36]

   In addition to the index offence of inflict grievous bodily harm with intent, the defendant also pleaded guilty to two counts of assaulting a law enforcement officer and received terms of imprisonment.

Views of the sentencing judge

1. [37]

   The defendant was sentenced by Lerve ADCJ (as his Honour then was) at the District Court at Sydney on 16 February 2012 in relation to the index offence. His Honour considered that the offending conduct was aggravated by the fact that the primary victim was a correctional services officer, that significant psychological harm was inflicted on the victim, that there had been the use of a weapon (a pool ball), and that the defendant had a substantial history of violent offences. His Honour assessed the objective seriousness of the offence as slightly less than the mid-range of objective seriousness for offences of its kind. His Honour stated the following when considering the question of special circumstances:

2. [38]

   The Director of Public Prosecutions appealed against the sentence imposed upon the defendant by Lerve ADCJ. That appeal was allowed: R v Bugmy [2012] NSWCCA 223. The Court of Criminal Appeal (Hoeben JA, as his Honour then was, with whom Johnson and Schmidt JJ agreed) held that Lerve ADCJ had erred in his assessment of the objective seriousness of the offence. In addition, it was held that his Honour had given inadequate or no weight to the fact that the victim was a correctional officer, to the need for personal deterrence, to the absence of remorse, or to the seriousness or length of the defendant’s criminal record. It was also held that the reduction in sentence for the “Fernando considerations” should have been modest because the extent to which social deprivation in a person's youth and background can be taken into account must diminish over time. It was further held that, as any suggestion that the defendant had a psychotic illness was speculative, it was wrong to take it into account to reduce the length of the sentence.

3. [39]

   The defendant then successfully appealed to the High Court. The High Court unanimously allowed the appeal on the basis that the Court of Criminal Appeal had not addressed the question of whether the original sentence was manifestly inadequate and had also not considered its residual discretion to dismiss the appeal. The Court also held that the fact that an offender had been raised in a community surrounded by alcohol abuse and violence may be a matter relevant to mitigation on sentence in that it may reduce moral culpability: Bugmy v The Queen (2013) 302 ALR 192; [2013] HCA 37. The matter was remitted to the Court of Criminal Appeal for resentencing.

4. [40]

   On remittal, the Court of Criminal Appeal held that the sentence was manifestly inadequate, but in the exercise of its residual discretion declined to quash it: R v Bugmy (No 2) [2014] NSWCCA 322. The factor militating in favour of this course was that the appeal process had taken more than three years. Despite this, Bathurst CJ noted at [14]:

Drug and alcohol history

1. [41]

   A significant problem for the defendant is his history of substance abuse. He commenced sniffing petrol when he was eight years old and continued until he was a young adult. He also commenced using cannabis at the age of 12 and started drinking alcohol daily at the age of 11 or 12. He has remained a heavy drinker and describes himself as an alcoholic. In addition, he used a range of other drugs, including heroin, immediately prior to his last period of imprisonment. Dr Parker reported in his Risk Management Report that the defendant claimed to have used amphetamines on the day of the index offence and said that, when he is under the influence of drugs and alcohol, he is prone to react to the slightest provocation.

2. [42]

   The defendant commenced a methadone program in custody in 2013. He informed Dr Parker that he intends to continue with that program after release. He was arrested and charged with possessing a prohibited drug (namely, methylamphetamine) shortly after his release on parole this year.

Conduct in custody

1. [43]

   The defendant has a poor history of disciplinary breaches in custody. He committed 16 breaches of discipline during his current period of imprisonment alone. However, it is of interest to note that his behaviour has improved markedly since participating in the SRP-VO programme.

2. [44]

   The SRP-VO programme is a custody-based residential therapy programme for men who have committed violent offences and who have an intellectual disability or other cognitive impairment. The defendant was found suitable for the SRP-VO, rather than the Violent Offenders Treatment Program (“VOTP”), in light of an assessment of his intellectual functioning undertaken in April 2015 that placed him in the “extremely low” range. He commenced the treatment phase of the programme on 27 October 2015 and completed it on 13 October 2016.

3. [45]

   The defendant did not incur any internal charges after September 2015. Case notes from the Department of Corrective Services reflect a positive change in the defendant’s conduct in custody following participation in the SRP-VO. One of those case notes describes the defendant as “committed and motivated”. Another note reports that he was “a great support to other offenders in his group”. However, the notes are not uniformly positive, with some verbal aggression on the part of the defendant reported.

Reports under s 6(3) of the Act

1. [46]

   In accordance with its obligation under s 6(3) of the Act, the State’s supporting documentation included a Risk Assessment Report of Dr Parker dated 2 August 2016. Dr Parker examined the defendant in custody on 29 July 2016. The defendant told Dr Parker that he was “happy and settled” as a result of the programme in which he was engaged (that is, the SRP-VO). He reflected “with pride” that it had been almost 12 months since his last offence in custody. He said that, “…he’d never believed he was capable of that, as he usually would become abusive every few days.”

2. [47]

   Dr Parker canvassed the defendant’s psychosocial background and history of offending. He noted that, while the defendant’s juvenile offending was mostly acquisitive in nature, it became “increasingly violent and hostile” in adulthood. He considered that this signalled an evolution from a “life as party” lifestyle to an “us and them” approach to life.

3. [48]

   With respect to risk assessment, Dr Parker noted that the defendant’s score as at 2010 on the Level of Service Inventory-Revised (“LSI-R”), an actuarial risk instrument related to general offending, was 44 out of a possible 54. That score is assessed as “high risk”. Dr Parker administered the Violence Risk Appraisal Guide-Revised (“VRAG-R”), an actuarial risk assessment tool designed to assess the risk of violence for serious offenders. That tool assesses static risk factors. The defendant’s score on the VRAG-R was equal to, or higher than, the score of 99% of the construction sample. That score classifies the defendant as “high risk” when compared with other serious violent offenders, with 76% of violent offenders with a similar score reoffending violently within five years and 87% within twelve years.

4. [49]

   A number of “criminogenic needs” were identified by Dr Parker in his report. They include the defendant’s control of his emotions. Dr Parker noted that the defendant has a tendency to react violently or abusively when he perceives that he is not getting his way, including in response to trivial matters. Substance abuse is a further criminogenic need, with alcohol linked to the defendant’s offending in three ways: by placing him in contact with other problematic drinkers and distancing him from pro-social peers, by disinhibiting him, and by triggering an “I get out of control” belief. Dr Parker also considered that the defendant demonstrated various modes of criminal thinking, including the normalisation of violence and a “beat or be beaten” implicit theory. He considered that a risk scenario would involve a return to substance abuse, association with anti-social peers, and a continuation of problematic criminal thinking.

5. [50]

   Dr Parker stated in his case formulation that:

6. [51]

   The State also provided a Risk Management Report under the hand of Teresa Sartor, Community Corrections Officer in the ESO Team. That report outlines strategies for managing the criminogenic needs identified by Dr Parker, including weekly interviews and field visits, managing third party contacts, a curfew and schedule of movements, and referral to alcohol and drug counselling and the community-based maintenance programme of the SRP-VO.

Other reports

1. [52]

   The defendant has been examined by a number of psychiatrists and psychologists since his first incarceration as a juvenile. A number of those reports were included in the supporting documentation. Ms Rita Sosic, psychologist, appraised him in 1998 and noted that he had attempted suicide and reported hearing voices telling him to kill himself. He was also examined by Mr Harry Smith, psychologist, and Dr Cranney, psychiatrist, in 1998, while on remand at Kariong Juvenile Justice Centre. Dr Cranney concluded that the defendant was depressed and had a personality disorder. Dr Cranney also suggested that the defendant had organic brain damage and some degree of “mental retardation”.

2. [53]

   A neuropsychologist, Dr Gilandas, examined the defendant in 1998. He tested the defendant’s IQ and concluded that he had achieved a verbal IQ of 72, placing him in the 3rd percentile, a performance IQ of 68, placing him on the 2nd percentile, and a full scale IQ of 67, which placed him in the 1st percentile. Dr Gilandas noted that these scores fell within the “mentally retarded range”. He did not identify any “hard evidence” of the defendant’s having any psychiatric disorder at that time. He did not appear depressed or anxious. It was his view that the defendant’s difficulties were due to his “mental retardation”, which was in turn due to matters such as foetal alcohol syndrome, drug abuse, petrol sniffing and head trauma.

3. [54]

   In 2011, the defendant was examined by Dr Bruce Westmore, psychiatrist, in anticipation of his sentence proceedings for the index offence. The defendant told Dr Westmore that he was an alcoholic who would not miss a day of drinking. He reported alcohol as being his primary problem, in that he only takes prohibited drugs when he is drinking alcohol. He said that “…the drinking blocks the voices out”, so that he can sleep. He told Dr Westmore that he has “lot of anger with the law”. He said that, “I feel I’m going to be in one of these places for the rest of me life [sic] if I don’t get help. They said that I can’t be helped.” Dr Westmore noted a very negative attitude towards authority figures.

4. [55]

   It was Dr Westmore’s opinion that the defendant had, among other conditions, an anti-social personality disorder, issues with substance abuse, and episodes of depression, most likely of an adjustment disorder type. He noted that the defendant had a history of head injuries. The defendant also reported experiencing auditory perceptual disturbances. In the absence of further information, Dr Westmore declined to express an opinion as to whether the “voices” were due to a primary process mental illness such as schizophrenia, or whether they were related to substance abuse. It was the conclusion of Dr Westmore that the defendant required extensive counselling and regular psychiatric review, given the report of auditory hallucinations.

5. [56]

   Dr Westmore provided a supplementary report concerning the defendant’s report of hearing “voices”. For the purposes of that report, Dr Westmore assumed that the defendant had not been using illicit drugs at the time that he had reported the auditory hallucinations. He concluded that the symptoms did not arise from secondary factors, such as abuse of drugs and alcohol, but rather were of primary psychotic origin.

6. [57]

   I also had before me on this application a treatment report relating to the defendant’s participation in the SRP-VO programme during his most recent period in custody. That report is dated 21 December 2016 and is under the hand of Danijela Dragicevic, psychologist.

7. [58]

   The SRP-VO programme aimed to assist the defendant to identify and remedy problematic attitudes and thinking processes and to respond appropriately to negative emotional states. Ms Dragicevic noted the defendant’s history of exposure to violence during childhood, opining that this led to a poor self-concept, lack of trust, and the development of criminal attitudes. She opined that the defendant’s “…engagement in antisocial behaviours, his use of violence, and use of alcohol and drugs were [his] attempt to exercise some control over his unstable and disorganised life.” She reported the defendant was able to develop some awareness of the connection between his anti-social attitudes, unhelpful thinking and offending behaviour. However, he was reluctant or unable to use new skills and ways of thinking when under stress.

8. [59]

   Ms Dragicevic noted that an assessment of the defendant’s intellectual functioning undertaken in April 2015 placed him in the “extremely low” range. She stated that his presentation in treatment was consistent with that assessment, in that he had difficulty understanding abstract concepts and long words and had a tendency to engage in concrete or “black and white” thinking. She stated that, although the defendant tended to blame others for his offending when treatment commenced, he later appeared to be more willing to accept responsibility. However, he reverted to justification, minimisation and blame when overwhelmed or distressed. His response to treatment deteriorated towards the end of the programme. A significant area of difficulty was the defendant’s problematic conduct in group, particularly passive-aggressive behaviour towards other participants.

9. [60]

   Ms Dragicevic noted that the defendant was assessed as within the high risk category of violent offending, as measured by the Violent Risk Scale (“VRS”). The VRS is an actuarial risk assessment tool developed to assess risk of violence using both static and dynamic risk factors.

Previous response to supervision on parole

1. [61]

   It is to be noted that the defendant has spent much of his adult life in custody and has rarely had the benefit of time spent in the community on parole. He has generally demonstrated a poor response to past supervision, whether on parole or as part of a supervised bond. A pre-sentence report dated 11 August 2003 declined to recommend supervision, stating that his previous performance had been unsatisfactory. In March 2004, he was called up in relation to a section 12 bond and sentenced to a term of imprisonment for six months. A breach of parole report dated 10 October 2007 noted that the defendant appeared to be in breach of parole conditions. Notwithstanding this, it was considered at that time that that the defendant’s overall response to supervision was more positive than it had been in the past. However, a pre-sentence report dated 23 October 2008 again stated that the defendant’s performance while under supervision had been unsatisfactory, despite attempts to “persevere” with him.

2. [62]

   The defendant acknowledged to Ms Dragicevic in the course of the SRP-VO programme that he tended to revert to “unhelpful” behaviours after release out of an unwillingness to comply with conditions of supervision, rather than a lack of understanding.

3. [63]

   As noted above at [2], the defendant was released on parole on 19 January 2017 and was charged with possessing a prohibited drug on 2 March 2017.

Consideration

1. [64]

   In this matter, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender ESO. That is, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

2. [65]

   I have had regard to the fact that the standard of proof is higher than the civil standard, but lower than the criminal standard. The determination as to whether the risk is unacceptable is an evaluative task: Lynn v State of New South Wales [2016] NSWCA 57 (“Lynn”) at [51] per Beazley P. As Basten JA pointed out in Lynn at [124], the statutory exercise involves four steps which are interlocking. His Honour observed:

3. [66]

   I am required to have regard to the mandatory considerations in s 9(3) of the Act, given that the question for my determination involves consideration of whether, ultimately, the making of an ESO would be justified. Those matters are, relevantly, the safety of the community (s 9(3)(a)); the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence (s 9(3)(d)); any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1)); any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs (s 9(3)(e)); the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order (s 9(3)(f)); the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history (s 9(3)(h)); the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (s 9(3)(h1); and any other information that is available as to the likelihood that the offender will in future commit serious violence offences (s 9(3)(i)).

4. [67]

   I have had regard to each of those considerations and have set out the material relevant to each of them above. In particular, I have had regard to the safety of the community, the relevant reports, the results of statistical risk assessments, and the report prepared by Corrective Services as to the extent to which the defendant can reasonably and practicably be managed in the community. I have also had regard to the defendant’s completion of the SRP-VO in custody, his willingness to participate in such a program, his response to previous supervision on parole, his criminal history, the views of the sentencing court, and other relevant material before me.

5. [68]

   The supporting documentation demonstrates that the defendant has a lengthy record of offences of violence, particularly towards authority figures and his former partner. The circumstances of his previous offending suggest that situations in which the defendant becomes upset or angry can devolve quickly into violence. There appears to be a strong association between his use of alcohol and other substances and his resort to violence in stressful situations. In this context, it is of concern that the defendant was charged with possessing methylamphetamine shortly after his release on parole.

6. [69]

   Having regard to the limitations inherent in any predictors of risk, the defendant has been described by Dr Parker and Ms Dragicevic as having a “high risk” of reoffending relative to other violent offenders.

7. [70]

   Acting Judge Lerve, in a passage of his remarks extracted above at [37], considered that the defendant is in need of “ongoing, extensive and intensive supervision”. This was echoed by Dr Parker in his Risk Management Report.

8. [71]

   As stated above, for the purposes of the preliminary hearing only, the defendant concedes that the statutory prerequisites for the making of an ESO are satisfied. Accordingly, he did not oppose the making of the orders sought at this preliminary stage.

9. [72]

   I propose to make the orders sought.

Proposed conditions

1. [73]

   Having concluded that the defendant should be made the subject of an ISO for 28 days, s 11 of the Act provides that I may direct the defendant to comply with such conditions as I consider appropriate. Some example conditions are set out in s 11 of the Act.

2. [74]

   The conditions sought by the State are attached to the amended summons. I propose to make an ISO on those conditions.

3. [75]

   I am satisfied that the proposed conditions are specifically designed to address issues relevant to the currently identified risk factors in relation to future serious violent offending. Nor do I consider them to be punitive or unjustifiably onerous. In this regard I have had regard to the relevant legal principles extracted at [37] – [46] of Wilde v State of NSW [2015] NSWCA 28.

4. [76]

   In imposing the supervision conditions, I am mindful of the fact that it is a statutory offence to breach a condition of an ISO. I am satisfied that the conditions are in clear terms.

5. [77]

   I also propose to make all of the other interlocutory orders sought by the State, including the setting of a timetable and the fixing of a hearing date. Such a course was agreed upon by counsel for the defendant.

6. [78]

   I make the following orders:

   1. (1)

      Pursuant to s 7(4)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court appoints qualified psychiatrist, Dr Andrew Ellis and registered psychologist Professor Susan Hayes to conduct separate psychiatric and psychological examinations, respectively, of the defendant and to furnish reports on the results of those examinations to the Court by no later than 5:00 pm on 17 May 2017.

   2. (2)

      Pursuant to s 7(4)(b) of the Act, the defendant is directed to attend examinations by the Court appointed psychiatrist and psychologist named in Order 1.

   3. (3)

      Pursuant to s 10B of the Act, that the defendant be subject to an interim supervision order to commence on 7 April 2017, for a period of 28 days.

   4. (4)

      Pursuant to s 11 of the Act, the defendant is directed to comply with the conditions set out in the Schedule attached to these Orders for the duration of the interim supervision order made in Order 3.

   5. (5)

      That the plaintiff file and serve any further evidence on which it intends to rely by 5:00 pm on 24 May 2017.

   6. (6)

      That the plaintiff file and serve written submissions on which it intends to rely by 5:00 pm on 26 May 2017.

   7. (7)

      That the defendant file and serve any further evidence on which he intends to rely by 5:00 pm on 2 June 2017.

   8. (8)

      That the defendant file and serve written submissions on which he intends to rely by 5:00 pm on 7 June 2017.

   9. (9)

      That the plaintiff file and serve any submissions in reply by midday on 13 June 2017.

   10. (10)

       That the matter be listed for final hearing on 14 June 2017 at 10:00 am with an estimated duration of 1 to 2 days.

   11. (11)

       The matter is listed on 27 April 2017 before the Duty Judge to hear an application to renew the interim supervision order referred to in Order 3 above.

   12. (12)

       The parties have liberty to apply to relist the matter on one working days’ notice.