State of New South Wales v SLD (Final)

1. [1]

   HIS HONOUR: By a summons filed on 4 November 2024, the State of New South Wales (the plaintiff) seeks interim and final orders against SLD (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   At the preliminary hearing consequent to the summons, I made orders on 17 December 2024 (State of New South Wales v SLD (Preliminary) [2024] NSWSC 1645 (the preliminary judgment)) for the furnishing of forensic reports to the Court and an interim detention order (IDO), which has been extended to, and will finally expire on, 15 March 2025; that is, in one day’s time. The hearing of the plaintiff’s prayer for final orders, in particular, a continuing detention order (CDO) for a period of 12 months, took place over two days this week; 11 and 12 March 2025. The effect of a refusal of that prayer is that an extended supervision order (ESO), made by Campbell J on 22 April 2021, is revived. The operation of the ESO was suspended during periods of incarceration of the defendant since that date, so that upon his release on 15 March 2025, he would be subject to the conditions of that ESO for the remainder of its duration, which is more than four years.

The relevant statutory provisions and principles

1. [3]

   Section 5C of the Act provides:

2. [4]

   The defendant concedes that the statutory prerequisites for the hearing of the application have been satisfied, as I so found in the preliminary judgment at [11] and, for the same reasons, find again.

3. [5]

   The issue that remains for consideration is therefore whether, pursuant to s 5C(d) of the Act, the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention. Section 5D of the Act provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of the person committing such an offence.

4. [6]

   The term “serious offence” is defined in s 4 of the Act to mean a serious sex offence or a serious violence offence. The former is defined to mean an offence under Div 10 of Pt 3 of the Crimes Act 1900 (NSW) where the offence is punishable by imprisonment for seven years or more and, if committed against an adult, is in circumstances of aggravation, as defined in the relevant statutory provision.

5. [7]

   A serious violence offence is defined in s 5A of the Act as follows.

6. [8]

   Section 17(2) provides that in determining whether to make a CDO, the safety of the community must be the paramount consideration, which is consistent with the “primary object” of the Act, outlined in s 3(1), being the “safety and protection of the community”. A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

7. [9]

   The defendant alternatively submits that, if the Court concludes that the making of an CDO is required, the Court nevertheless would exercise the discretion that arises from the terms of s 5C to not make an CDO.

8. [10]

   Section 17(4) of the Act obliges the Court to have regard to the matters that are set out as follows:

The defendant’s relevant background

1. [11]

   In earlier judgments concerning the offender, I reviewed the defendant’s criminal history. In State of New South Wales v SLD (Preliminary) [2023] NSWSC 330 (my 2023 judgment), at [14]-[23], I reviewed the material as to the index offence.

2. [12]

   In the preliminary judgment, I noted that an Offender Integrated Management System (OIMS) note dated 21 April 2023, which is evidence in this final hearing as well, reports that he claimed to Dr Richard Parker, who is a Senior Psychologist with the Serious Offenders Assessment Unit in Corrective Services NSW and the defendant’s treating psychologist, that his motive for the murder was to exact revenge for bullying by the deceased’s brother. I note there is no evidence of this claim having been investigated, so I allow for the possibility that the defendant’s claim was fanciful.

3. [13]

   In the 2023 judgment, at [24]–[29], I reviewed the material concerning the defendant’s subsequent offending and concerning behaviour while in custody until that time:

4. [14]

   As noted, the sentencing judge for the “reckless wounding” offence against the prison officer found that it was directed to officers in the unit generally, rather than that officer specifically. At this final hearing, Dr Parker gave evidence that the defendant had told him that it was not a random attack, but rather he intended to harm a particular prison officer as an act of revenge for a perceived wrongdoing by that officer to him.

5. [15]

   In the preliminary judgment, at [17]–[31], I reviewed the material concerning the defendant’s criminal offending and other concerning behaviour until the date of that judgment:

6. [16]

   In the preliminary judgment, I accepted that the breach of the defendant’s ESO on 24 October 2023 at Bulli Beach was towards the lower range of objective seriousness and may well have occurred as a result of the defendant’s lack of understanding about the fact that the ESO condition that he not “associate” with children operated to prohibit him from conversing with a child’s parent about the child in the child’s presence. I maintain that finding.

7. [17]

   A matter of concern, however, is that in his evidence in the final hearing, Dr Parker stated that the defendant had been forewarned by him and others that his understanding of what was meant in the ESO conditions by the term “associate” was likely incorrect, but he approached the women who were with their children anyway, preferring to trust his own belief rather than accept their advice, with the inevitable outcome that he may have been in breach of the ESO conditions:

Whether the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order: s 5C(d) of the Act

1. [18]

   Tendered on the hearing was an affidavit by Sharryn Coe, who is the Director of the Intensive Rehabilitation Directorate, Community Corrections. Her evidence was relevant to the likely conditions the defendant’s custody if a CDO is made, and the conditions of the ESO, if a CDO is not made. Ms Coe also gave evidence. Her evidence comes within s 17(4)(d1) and (e1).

2. [19]

   Tendered also were the reports of four forensic experts. Dr Kerri Eagle, who is a forensic psychiatrist, provided reports dated 6 February 2025 and 7 March 2025. Patrick Sheehan, who is a forensic psychologist, provided reports dated 31 January 2025 and 12 February 2025. Both were appointed by the Court pursuant to s 15(4) of the Act, so that their reports are relevant pursuant to s 17(4)(b).

3. [20]

   Two reports of Dr Richard Parker who, as noted, is the defendant’s treating psychologist, dated 28 January 2025 and 10 March 2025, come within s 17(4)(c), as do the reports and evidence of Samuel Ardasinski, who is the senior psychologist with the High Risk Offenders section of Corrective Services NSW and the author of four risk assessment reports in respect of the defendant, the most recent of which is dated 12 September 2024. All four forensic experts gave evidence at the hearing. Dr Eagle and Mr Sheehan gave evidence together.

4. [21]

   Ms Coe noted that the defendant has, until recently, been on protection at his request, in view of his concerns as to his safety in the prison system. A consequence of that classification is that he has had fewer opportunities to develop social skills. In their initial reports, Dr Parker, Dr Eagle and Mr Sheehan expressed concern that the order sought by the plaintiff of an additional 12 months in custody would, at best, achieve nothing in terms of the defendant’s rehabilitation and, at worst, set it back.

5. [22]

   In response to those opinions, Ms Coe and others in Community Corrections developed a one-off plan for the defendant which sought to encourage him out of self-imposed segregation and accelerate his progress through the prison classification system, so that at the end of the 12 months he would have the benefit of more social interaction, both within and without the confines of a prison and thus be better equipped to not breach his ESO. The program has been approved by the Commissioner for Corrective Services. It was referred to in the hearing as the “Reintegration and External Leave Plan” (the RELP).

6. [23]

   To that end, SLD has recently been reclassified to C1, which has allowed him to be moved to the Metropolitan Special Programs Centre (MSPC), which is a prison with inmates who are less likely to be violent towards him, thus allowing him to develop his social skills in a less-threatening environment. The Governor of his prison may determine to permit him to have escorted day leave, which is likely to be three days per week, commencing in about four weeks time. If all goes well, he would progress to being permitted to have overnight leave, and at an earlier stage than would usually be the case.

7. [24]

   Ms Coe said that if, on the other hand, a CDO is not made, so that he is immediately released pursuant to the ESO, SLD would be accommodated in a facility, which I understand to be staffed by Community Corrections as a halfway house-type of accommodation. A feature of the supervision of the offender in the community prior to his arrest in July 2023 was “line of sight supervision”. This means that whenever the defendant is outside his place of residence he is under the visual supervision of two Departmental Supervising Officers (DSOs). Ms Coe’s evidence was that line of sight supervision would again be utilised, at least for the first four weeks of his recommencement of the ESO, and thereafter if required, according to the ESO team’s assessment of his level of risk.

8. [25]

   Dr Parker has been the defendant’s treating psychologist since June 2020. He explained that a feature of his behavioural therapeutic approach to the defendant, which is known as the Cognitive Self Change program (CSC), is to direct the defendant’s responses to situations that would otherwise be criminal into lawful avenues. In his report, he explained:

9. [26]

   Dr Parker was of the view that the defendant had several indications of Asperger’s syndrome, which was an obstacle in the therapy:

10. [27]

    Dr Parker noted that, according to a range of actuarial instruments, the defendant’s risk of committing another serious offence was in “the higher ranges of risk for violent and sexual offending”. As to the most likely scenario of future violence, he considered that it would likely be a reactive offence and the result of “automatic thinking (dominated by emotional reactions)”. It would most likely not result in serious harm, because “statistically, most violence is not serious, and unplanned violence usually does not involve weapons … but it could”. The most likely victim would be a person the defendant could not easily isolate himself from, such as a co-resident.

11. [28]

    As to the most likely scenario of future sexual violence, Dr Parker considered that:

12. [29]

    Dr Parker was firmly of the view that the defendant’s level of risk was manageable on the ESO, particularly in view of the availability of line of sight supervision, if required. He said he would meet with the defendant weekly, if he returned to the community subject to the ESO.

13. [30]

    Dr Parker provided a supplementary report, dated 10 March 2025 which, amongst other matters, addressed the RELP. Dr Parker had three concerns about that proposal: the defendant may retreat to self-imposed segregation, for example, if he is attacked, or as a form of protest at a perceived injustice; escorted leave may be cancelled for disciplinary reasons or for reasons outside SLD’s control; and escorted leave would give him restricted opportunities for social interaction, so that it would be less beneficial than it would be under an ESO. He concluded:

14. [31]

    Dr Eagle referred to past diagnoses of the defendant of having an antisocial personality disorder, features of an autism spectrum disorder (ASD) and an XYY syndrome that arises from his chromosomal abnormality. She summarised her diagnoses of the defendant thus:

15. [32]

    Dr Eagle found that the defendant has a high loading of historical factors associated with the risk of future violence. She was of the view that if the defendant did commit a serious offence, it could involve a weapon:

16. [33]

    Dr Eagle was of the view that the defendant poses a substantially elevated risk of committing a further serious violence offence and/or sexual offence, based on various risk assessment tools and expert clinical judgment.

17. [34]

    She stated in her report:

18. [35]

    Dr Eagle stated:

19. [36]

    Dr Eagle expanded on these concerns, later in her report:

20. [37]

    In a supplementary report, Dr Eagle noted that she had been provided with certain OIMS notes, which I observe could be reasonably summarised as referring to highly concerning behaviour by the defendant, as well as to the RELP material.

21. [38]

    Dr Eagle stated that she had considered the material and that her opinion was unchanged. She said that if a CDO was made, she supported the plan to attempt to transition the defendant through less restrictive areas of the correctional centre with the goal of external leave.

22. [39]

    Mr Sheehan’s assessed the defendant’s level of risk and likely risk scenarios as follows:

23. [40]

    As to the defendant’s breach of his ESO in October 2023, Mr Sheehan said:

24. [41]

    Mr Sheehan considered that the conditions of the ESO, together with line of sight supervision being utilised when required, was sufficient to manage the defendant’s level of risk:

25. [42]

    Mr Sheehan expressed concern that if a CDO is made, the RELP may not materialise as it is hoped. In his experience as a former employee of the Department who worked directly on escorted day leave arrangements, it is frequently abandoned due to staff shortages and lockdowns and is subject in any event to the determinations of the Governor who has the responsibility of the overall operation of the prison.

26. [43]

    Mr Sheehan provided a supplementary report, in response to a request to comment on Dr Parker’s primary report. He found merit in Dr Parker’s therapeutic approach, agreeing that removing SLD from the pervading violence of the prison environment would be beneficial to his rehabilitation. Mr Sheehan was of the view that the extent to which the progress that SLD had made by not reoffending was due to therapy, was uncertain: “His poor appraisal, idiosyncratic thinking and proneness to violence ideation remain live risk factors”.

27. [44]

    Four of Mr Ardasinski’s risk assessment reports were in evidence, dated 15 June and 16 November 2020, 31 October 2022 and 12 September 2024. In the earlier reports, Mr Ardasinski had said that the defendant would benefit from a staged return to the community. In evidence, he agreed that the RELP was such a plan, but was of the view that while it would have been beneficial in 2023, it was not so now. He was of the view that it had the potential to confuse the defendant and make it more difficult for him to adapt:

Consideration

1. [45]

   While any breach of an ESO is a matter of concern, the nature of the defendant’s breach in October 2023 is not one that, in my view, raises an issue of future dangerousness that stands in the way of him being returned to the ESO. As noted by Dr Parker and Mr Ardasinski, technical breaches of the ESO by the defendant (that is, not breaches that pose a danger to the community) are to be expected. Indeed, they have a necessary (albeit painful for the defendant) role in his rehabilitation by boundary-marking where he fails to exercise self-discipline or obey directions because he has a different opinion.

2. [46]

   However, while the breach itself is not unduly concerning, the same cannot be said for the defendant’s reaction to the contents of the statement of the off-duty Corrective Services officer who contacted police, which led to his arrest. Although the defendant’s desire for violent revenge against that officer has been redirected to a non-violent and lawful avenue in the form of attempted court proceedings, the fact of the reaction in itself is, in my view, a matter that is relevant to the issue of the risk of him committing a serious offence if not subject to a CDO. I note the evidence to the effect that the defendant’s level of anger arising from that incident has significantly abated, although it is not resolved.

3. [47]

   The defendant’s more recent claims that the murder offence that he committed in 2001 and the reckless wounding offence that he committed in 2011 were both motivated by a desire for violent revenge against particular individuals, whether true or not, suggests a predisposition to such thinking, at least currently, if not at the time of those offences.

4. [48]

   Contrary to Dr Parker’s opinion, I am of the view that there is a risk of the defendant engaging in planning of a revenge attack and deploying an everyday object as a weapon, as indeed he did in the murder with a steak knife and in the reckless wounding with a razor blade. In that sense, I am more inclined to the opinion of Dr Eagle as to the nature of future risk scenarios. I note, however, Dr Eagle’s opinion that the defendant’s risk would be contained if he was subject to the ESO, subject to an appropriate level of ongoing scrutiny of the defendant’s behaviour.

5. [49]

   It is troubling that the defendant, who turned 38 during the hearing, has a sexual focus on young women – so young that he is able to mistake their age as being 18 or over, when they are not. While it is not unlawful to approach and engage an 18 year old in a public place in an attempt to obtain contact details so as to asking them out on a date, in the context of the defendant’s risk level for a sexual offence and demonstrated capacity for developing an obsessive fixation on hurting a person who he believes has wronged him, it is a matter of relevance and concern. The vulnerability of a young adult in that position is heightened by an absence of maturity and life experience; that is, the ability to realise that the defendant is stung by something he believes they have said or done, and to deal with that situation. Again though, I note that the conditions of the ESO provide for a high level of monitoring of the defendant’s behaviour.

6. [50]

   From the perspective of the defendant’s rehabilitation, there is no doubt that the ESO is the preferred course. I accept the evidence that a CDO, even though it would involve the RELP, may in fact be counterproductive to the defendant’s rehabilitation. However, as stipulated in s 3 of the Act, the primary object of the legislative scheme is the safety and protection of the community.

7. [51]

   The uniform opinions of the four forensic experts, two of whom have had a working relationship with him for over four years, is to the effect that the degree of supervision that would be involved in the ESO is sufficient to detect an emerging threat that the defendant may pose to an individual. I accept their opinions are soundly based on their expertise and that their opinions warrant significant weight.

8. [52]

   The question for the Court is somewhat different. It is whether the Court is satisfied to “a high degree of probability” that the defendant poses an unacceptable risk of committing another serious offence, as defined in the Act.

9. [53]

   Having regard to the definition of a “serious offence”, the defendant has not previously committed a serious sex offence, although he is regarded by forensic experts as having a high level of risk of doing so. His prior convictions include a serious violence offence.

10. [54]

    The meaning of the term “a high degree of probability”, as it appeared in an earlier version of the Act, was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374. The statutory context was as follows.

11. [55]

    It is to be noted that the provision did not refer to “a high degree of probability that the offender poses an unacceptable risk of committing another serious offence”.

12. [56]

    The Court said, at [21]:

13. [57]

    The words “unacceptable risk” should be understood according to their everyday meaning: Lynn v NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 per Beazley P (as her Excellency then was) at [58].

14. [58]

    Having regard to the evidence concerning the defendant’s level of risk, including his prior offending and history of concerning behaviour, I am satisfied that the defendant poses a risk to the community of committing another serious offence, if not kept in detention. However, taking into account that if a CDO is not made, the defendant would be subject to the ESO, the defendant’s prior record whilst in the community subject to the ESO conditions and the opinions of the forensic experts, in particular as to the capacity of the ESO to manage the defendant’s risk to the safety of the community, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention.

15. [59]

    Accordingly, the prayer for a CDO is dismissed.

Orders

1. [60]

   I make the following order: