State of New South Wales v SLD (Final)

1. [1]

   This is the final judgment dealing with the State of New South Wales’s (“the State”) application under Crimes (High Risk Offenders) Act 2016 (NSW) for an extended supervision order (“ESO”) of 5 years’ duration against the defendant (“SLD”). Unless otherwise specified all references to statutory provisions in this judgment are references to the Act.

2. [2]

   The proceedings were commenced by summons filed on 28 February 2023 and an interim supervision order (“ISO”) for a period of 28 days was made by Ierace J commencing on 17 April 2023: State of New South Wales v SLD (Preliminary) [2023] NSWSC 330. The order has been renewed since then. While it is more than 3 months since his Honour’s order commenced (s 10C(3)), it has been suspended for 2 periods during which SLD has been in lawful custody on remand on charges of breaching the conditions of the ISO (s 10C(1A); s 12). The first alleged breach of condition arose on 2 June 2023. SLD was released to bail on 28 June 2023. He was arrested again on yet further charges of breaching the conditions on the first day of the final hearing before me viz 11 July 2023. The matters were back before the Waverly Local Court on 9 August 2023. At the time of writing, I have been informed that SLD has not been released to bail again. It is common ground, however, that these periods of remand have “extended”, by way of suspension, the period covered by the series of ISOs so that the current ISO will revive and continue if SLD is released to bail.

3. [3]

   Prior to his release to the ISO, SLD had been detained under a continuing detention order (“CDO”) of 2 years’ duration commencing on 22 April 2021 made by me on that date: State of New South Wales v SLD (Preliminary) [2020] NSWSC 1803 (“Preliminary J”); State of New South Wales v SLD (Final) [2021] NSWSC 409 (“Final J”). The final order was made under ss 17 and 18.

Issue

1. [4]

   As filed, the summons by prayers 5 and 6, sought a further CDO for a period of 1 year under s 17 and the issue of a warrant for SLD’s committal under s 20. Following receipt of the reports of the experts appointed under s 7(4) pursuant to orders made by Ierace J those claims for relief were withdrawn. An amended summons was filed in court on 11 July 2023 pressing only the claim for an ESO of 5 years duration (ss 9; 10), subject to stringent conditions of supervision (s 11). SLD does not contest either the making of an ESO or the conditions sought by the State. The sole issue is whether the order should be imposed for a lesser period than 5 years, bearing in mind the Court’s power to impose a second or subsequent ESO against the same offender (s 10(3)).

2. [5]

   While these are civil proceedings, and subject to express contrary terms of the Act, are to be conducted in accordance with the law relating to civil proceedings (s 21), it is generally said that the exercise of the Court’s power under the Act is not a “consent jurisdiction”. Rather, the Court must be affirmatively satisfied that the evidence properly admitted satisfies both the statutory conditions for making an ESO stipulated by s 5B and provides grounds for the exercise of the discretion to make the order in accordance with s 9(1) having regard to the mandatory considerations established by ss 9(2) and (3). Nonetheless, the consideration that SLD, who is represented by experienced counsel in the field (Mr M Johnston SC and Mr D Bhutani), does not oppose the making of the orders is not irrelevant; s 9(3) empowers the Court to have regard to “any other matter it considers relevant” in addition to the mandatory considerations. The consent, or non-opposition, of the offender against whom the order is sought is another relevant matter.

3. [6]

   Moreover, most of the evidence relied upon by the State has been considered by the Court in at least 3 hearings: my preliminary hearing, my final hearing, and the preliminary hearing conducted by Ierace J. The first final hearing before me was strongly contested over 3 days in March 2021. Experts were cross-examined, and competing lay evidence was called on both sides of the record. So far as they remain relevant to the present application, I am entitled to rely upon the findings I then made. These reasons suppose familiarity with my previous reasons and the reasons of Ierace J. It is not necessary for me to reinvent the wheel.

Index offending and background

1. [7]

   SLD’s index offence is one of murder, which he committed when aged 13 years and 10 months. The murder victim was a 3-year-old female neighbour whom SLD abducted from her home and murdered on a nearby driveway with a single stab wound to her chest. Her night clothing had been removed, but there was no evidence of sexual interference. On his plea of guilty he was sentenced by Wood CJ at CL to a term of imprisonment of 20 years commencing on 29 January 2001, the date of his arrest, and expiring on 28 January 2021. The non-parole period was one of 10 years, but SLD never established eligibility for parole and served out the whole of his sentence. His first return to the community in any capacity was when he was released on the stringent ISO imposed by Ierace J on 17 April 2023. When one takes into account the CDO I imposed, he had been in custody until then for 22 years and nearly 3 months. Since then, of course, he has spent about as much time in custody on remand as he has under the ISO. He is now 36 years of age.

2. [8]

   In my preliminary and final judgment (Preliminary J [12], Final J [8]) I summarised Wood CJ at CL’s finding of SLD’s criminality in the following terms:

3. [9]

   With reference to SLD’s early life experience of profound social deprivation and ongoing serious misconduct as a child, his Honour described SLD’s personal circumstances as “almost as bleak and disturbing as his crime”. In the Court of Criminal Appeal, R v SLD [2003] NSWCCA 310, Handley JA described them as “horrific” (at [5]). I found at (Preliminary J [16]; Final J [8]) that after he became a ward of the State his adoptive parents “did the very best they could by him. But his disturbed background…had already taken its toll upon the development of his personality leading to severe and destructive misbehaviour at school and criminal misconduct”.

4. [10]

   In her report of 22 February 2021, Dr Susan Pullman, a highly qualified forensic neuropsychologist, described “the behavioural and emotional consequences of early child abuse or social deprivation, especially in the first 3 years of life” (Final J [124]). I summarised that part of her evidence as follows:

5. [11]

   I summarised the psychiatric and psychological assessments then available (Final J at [38]-[53]). This body of material commenced when SLD was 3 years and 6 months of age when developmental delay was diagnosed. At age 6 a chaotic cognitive style and a tendency to “extreme exaggeration and fabrication” was described. After he had set fire to his school at age 11, a psychologist recorded inappropriate sexual comments and angry outbursts. A diagnosis of “global delay”, with an IQ of 74, was made.

6. [12]

   Many psychiatric and psychological reports were obtained in preparation for the proceedings on sentence. My assessment is that the better view of that evidence is to be found in the opinion of Professor David Greenburgh (Final J [43]) who proffered a probable diagnosis of “Severe Personality Disorder with antisocial and psychopathic features”. Such a diagnosis could not be confirmed until SLD attained the age of 18 years. His presentation included aspects of fabrication, guardedness, manipulation and intimidation when challenged. That diagnosis has been confirmed since and I was particularly impressed by the report of Dr Gordon Elliot, Consultant Psychiatrist of 23 October 2020, who also diagnosed a Severe Personality Disorder of Cluster B (“SPD”) nature. Dr Elliot said (p 8):

7. [13]

   Mr Samuel Ardasinski, a senior forensic psychologist with CSNSW, who provided the statutory risk assessment report was also of the view that SLD met the criteria for both a Psychopathic Personality Disorder and Anti-Social Personality Disorder, although he was reluctant to make that diagnosis because of SLD’s youth when he was taken into custody in 2021 (Final Hearing [34.40T]). In his most recent report for the application at hand, Mr Ardasinski has overcome his reluctance and made the diagnosis.

8. [14]

   Dr Richard Furst, Forensic Psychiatrist, the other court appointed expert from the previous application also diagnosed a SPD with a mixture/combination of anti-social, borderline, narcissistic features. The features of the condition include an inflated sense of self-importance, disregard for the feelings of others, resentment of criticism, sense of entitlement, grandiosity, callousness and unemotional traits. Dr Furst also diagnosed a co-morbid congenital chromosomal abnormality of XYY Syndrome, which has physiological consequences and cognitive effects which itself can lead to anti-social behaviour. Dr Pullman is also of the view that SLD suffered a SPD of the anti-social type with psychopathic traits including a lack of empathy. His history of anti-social behaviour commenced before puberty.

9. [15]

   Dr Calum Smith, Forensic Psychiatrist, one of the Court appointed experts in the current case, in his report of 2 June 2023 (Exhibit A), also expressed the view that the appropriate diagnosis was Anti-Social Personality Disorder with psychopathic features (p 36). He referred to SLD’s genetic abnormality, and like Dr Pulman, in-utero drug and alcohol exposure as well as neglect, abuse and violence during his early years. Dr Smith said Wood CJ at CL’s description of SLD’s misconduct prior to the index offending and during the early years of his juvenile detention “outline an almost textbook definition of anti-social conduct in a young person”. The psychopathic features in this case include “lack of guilt, apprehension or anxiety, lying, haughtiness and egocentricity”.

10. [16]

    Mr Patrick Sheehan, Forensic Psychologist, is the second court appointed expert. He subscribed to the “broad consensus amongst assessing experts that [SLD’s] main presenting feature is [SPD]” (Exhibit B, p 15, [31]). He regarded SLD’s anti-social personality characteristics as at the high end of severity. At the age of 36 years, SLD is still “some years away from entering a phase of life where his anti-social features might be expected to lessen.” He agreed with the assessment that SLD had a Cluster B presentation involving narcissism and border-line personality traits (p 15 [31]).

My reasons for imposing a CDO in 2021

1. [17]

   In 2021, I was satisfied that the conditions set out in s 5C (cf s 5B) were satisfied. There had then been no issue about conditions (a), (b) and (c), ie that: SLD was an offender who had served a sentence of imprisonment for a serious offence; he was a detained offender serving a sentence of imprisonment for a serious offence when the application was made; and the application complied with the requirements of s 13B as to form. There had been no issue that the evidence was capable of satisfying the Court to the requisite high degree of probability that SLD posed an unacceptable risk of committing another serious offence. The issue was whether the nature and quality of the risk required SLD to be kept under supervision (s 5B) or in detention (s 5C). I determined that his risk was such that he was required to be kept in detention. My reasons for that conclusion were set out in the following terms (Final J [148]-[153]):

Developments since April 2021

1. [18]

   From the material tendered before me, there has been a change and perhaps a degree of progress in each of the 5 areas which were central to my decision that the unacceptable risk posed by SLD could only be managed by the imposition of a CDO.

2. [19]

   I turn first to the opinions of the experts appointed under s 7(4) for the current case. Dr Smith utilised formal structured risk assessment tools and his own clinical judgment in relation to the assessment of SLD’s risk. He acknowledged that the structured tools had limitations in SLD’s case. However, he concluded (p 44):

3. [20]

   Dr Smith on balance favours an ESO with strict conditions over another CDO. He expressed this view (p 45):

4. [21]

   Dr Smith concluded (p 45):

5. [22]

   Mr Sheehan’s assessment by reference to the actuarial VRS tool put SLD in the high range relative to the sample population used in the study. Mr Sheehan observed that this outcome was consistent with all prior violence risk assessments carried out in relation to SLD (p 31 [84]). Of the sample group with this rating, 44.5 percent were criminally convicted for a new violent offence within 5 years of release. I interpolate, however, that there is some force in the argument that there are limitations in the accuracy of the outcomes produced by application of the actuarial tools in the case of a child offender like SLD. However, the tools, as I found in my Final J, have continuing validity. Mr Sheehan also formed the view that notwithstanding the absence of convictions for sexual offending, his sexual obsession in its various aspects and the ambiguity surrounding the motive for the index offending gave rise to “realistic concerns for the sexual safety of females around him” (p 36 [108]).

6. [23]

   Like Dr Smith, Mr Sheehan was of the view that the application of the RSVP tool for the assessment of the risk of future sexual offending indicated a number of dynamic risk factors applicable to SLD (p 37 [11]). Mr Sheehan said concerns expressed by others about SLD’s potential for harmful sexual behaviour were “genuine” and needed to be factored into his risk management “framework”.

7. [24]

   Mr Sheehan was of the view that the conditions of the ISO imposed by Ierace J “would contribute to attenuating [SLD’s] risk of a serious offence of either sexual or violent nature.” (p 40 [121]). He also considered SLD would not be able to manage his own risk in the absence of “highly intensive supervision”. He did state, however, that ESO conditions “cannot hope to extinguish the risk of a serious offence” (p 41 [121]; my emphasis), but they ought to help manage SLD’s background dynamic risk factors. He was of the view that SLD will likely breach the conditions of the order “seeking to subvert conditions imposed upon him". This already seems to have occurred, as I have indicated at the outset of this judgment. Mr Sheehan did not regard the breaches which had occurred so far as rendering the commission of another serious offence imminent (p 41 [122]). Mr Sheehan also thought that SLD was at a risk of absconding by removing his GPS monitor and that the risk of a serious offence would be acute if he was at large. But he regarded the line-of-sight supervision condition as being ameliorative (pp 41-42 [123]).

8. [25]

   Mr Sheehan could see advantages in another CDO, but stated (p 42 [124]):

9. [26]

   Mr Sheehan, by reference to “the chronic, enduring and serious nature of [SLD’s] risk” considered the maximum five years duration to be appropriate. Dr Smith said (p 47):

10. [27]

    It is clear that each of the court appointed experts favours an ESO subject to stringent conditions over a CDO. This is a material change in the evidence since 2021 and obviously explains why the State is no longer pressing an application for a CDO.

11. [28]

    My second, third and fourth reasons were concerned with aspects of SLD’s former resistance to completing the Violent Offender Therapeutic Program (VOTP). Once again, there has been a change of circumstances. His participation in the program was tailored for his benefit to individual sessions at the South Coast Correctional Centre. He completed his last session with an experienced male VOTP therapist on 16 August 2022. He is said to have interacted relatively well in sessions with his treating psychologist. But he did not engage appropriately with the program material. He continues to exhibit the attitude that he has made all necessary changes himself to moderate his risk of recidivist serious offending.

12. [29]

    Notwithstanding his completion of the VOTP, as expected (Final J [90]) SLD has not been able to progress to lesser classifications in custody. He had achieved a B (medium) security classification at the time of his release to the ISO. I did not expect that he would be able to attain a C (minimum) security classification at the time of the Final J. This is partly due to his status as a “High Security Inmate”. This of itself would preclude him from being housed in minimum security settings even if he was otherwise able to obtain a reduction in his classification. It remains the case that while in custody he had not committed any offences since 2013 and from about mid-2020, he had acquired an infringement-free record in terms of correctional centre discipline. This may be contrasted with the allegations of breach of the conditions of his supervision. Paradoxically, it may suggest there is hope of SLD learning that it is in his interests to comply with the conditions of supervision.

13. [30]

    Of continuing concern after the completion of the VOTP, is that SLD takes little or no responsibility for his actions. He does not take active responsibility, particularly in a determination to assume agency for his future and outcomes as opposed to than blaming circumstances or the actions of others for his predicament.

14. [31]

    While Mr Ardasinski did not regard it as appropriate to readminister the various actuarial or structured professional judgment tools which had been applied in the past, given the number of times they have been deployed and the consistent results obtained, he expresses the view that SLD “remains squarely in the High Risk category for repeat violent offending, including serious violence.” He also poses the potential to commit an act of sexual violence given his level of “social-sexual incompetence”. Part of the latter is his fixation on losing his virginity immediately upon his release (Mr Ardasinski Supplementary Risk Assessment Report 31 October 2022, p 12 [35]).

15. [32]

    The most significant development since the Final J is that SLD has been adjudged suitable to reside in supervised accommodation at Nunyara COSP. Obviously, stable, secure, and in SLD’s case, supervised accommodation is critical to the prospects of him being successfully managed in the community. Without this development SLD could not have been released to the ISO on 17 April 2023.

16. [33]

    Regrettably, his compliance with the ISO has not been free of significant disruption. It has not been what is required of him. He has made clear that “he will not follow conditions that he does not feel are important”. This is clearly a manifestation of the symptoms of his PSD and emblematic of the challenges of supervision. His DSO found it necessary to caution SLD several times about breaches of his conditions during his first 6 weeks under the ISO before action was taken. His intense pre-occupation with sex continued and was a frequent source of frustration to him and a source of his disgruntlement with the conditions.

17. [34]

    On 2 June 2023, SLD was arrested and charged with 2 counts of breaching the conditions of his ISO. The first breach consists of allegedly being within an area of the COSP which is out of bounds for him. This was the room of a fellow resident of the COSP in alleged breach of condition 12 of the ISO. He was also charged with breaching conditions 39, 45 and 47 of the ISO restricting his access to the internet, a matter potentially of some significance. The allegation against him is that he had accessed WhatsApp for 39 minutes and You-tube for 54 minutes on 1 June 2023 without authority. On 2 June he accessed an application named Tagged without authority permitting on-line communication with other users. At the time of his arrest, he said to an arresting officer, “listen Miss, I will choose what conditions to follow and what ones aren’t important”, as I have already remarked (Working Folder, p 64). He was granted Supreme Court bail on 28 June 2023 and returned to residence at the COSP.

18. [35]

    The second occasion in which charges of breaching the conditions of the ISO arose is 11 May 2023, the day of the final hearing of the State’s application. For reasons which were not fully explained to my satisfaction, Community Corrections were unable to conduct SLD to court for the final hearing. I allowed myself to comment, “that does not seem very satisfactory” (1.32T). I also said (1.4 - 48T):

19. [36]

    It is alleged that SLD removed the blade of a disposable shaver from its housing and made several lacerations to his left forearm before returning to the manager’s office. He allegedly said words to the effect that if he did not get what he wanted he would continue to cut deeper into his arm. These facts form the basis of a charge contrary to s 12 for breaching condition 38 of the ISO prohiting possessing an edged blade adapted to inflict violence. He was conveyed to hospital where he allegedly continued to threaten his DSO that he would continue to self-harm on a regular basis until his supervision accorded with what he believed was appropriate. These circumstances form the basis of a charge of breaching condition 4 prohibiting interfering with or impeding his supervision. I make no comment whatsoever about SLD’s guilt or innocence of these charges as the matter is pending in the Local Court.

20. [37]

    As a result of these charges, SLD’s residence at the COSP was relinquished which left him in the position where he had no suitable secure bail residence causing the police to apply for bail to be refused, which application, the learned magistrate acceded to. SLD apparently said in court that he was not willing to return to the COSP.

21. [38]

    At the further hearing before me on 27 July 2023, the State made an application to re-open its case to provide evidence of the events of 11 July subsequent to the hearing, which was not opposed and I granted leave. In addition to Mr McLachlan’s affidavit of 20 July 2023, the affidavit of Erin Kirkwood affirmed on 25 July 2023 was read. Ms Kirkwood is a senior officer of CSNSW’s extended supervision team. Ms Kirkwood states that inquiries with the manager of the COSP now indicate that SLD may return to his residence there, provided he agrees to a behavioural plan or provides an undertaking in relation to his behaviour. I am not aware whether SLD has agreed to this. But no application is made for an IDO or a CDO. And this judgment will proceed on the basis that when SLD is next released, he will return to the COSP under the existing conditions.

Unacceptable risk

1. [39]

   Having considered the material for myself and having regard to the agreed position, I am well satisfied to the requisite high degree of probability that SLD poses an unacceptable risk of committing a serious violence offence if not under an ESO. I am also satisfied that he poses a high risk of committing a serious sexual offence if not under an ESO to the same high degree of probability.

2. [40]

   I remain “well and truly satisfied that SLD ‘suffers’ a severe personality disorder of a Cluster B nature” as has been diagnosed by many forensic experts over the decades including Dr Smith and Mr Sheehan. (Final J [133]). In fact, nothing has really changed in my appreciation of the risk from the reasons I gave in April 2021 (Final J [133]-[144]), except I am now of the view the small degree of changed circumstances means that an ESO rather than a CDO is appropriate to management of the risk. However, and obviously, the management of SLD in the community is bound to be extremely challenging both for him and his DSO as events since his release under the ISO have demonstrated.

3. [41]

   I do not regard it as either necessary nor desirable to postulate so-called “risk scenarios” or otherwise over-refine the identification of the content of the risk. In my judgment there can be no doubt, having regard to the consideration of community safety, which are the primary purpose of the legislation, that SLD’s personality disorder and his high degree of institutionalisation, given his incarceration since the age of 13 years and 10 months, are such that the risk could materialise spontaneously if he felt his demands were frustrated or thwarted. The risk could also materialise with a degree of premeditation as his index offending and other matters on his record evince. His personality disorder makes him self-centred and unempathetic. He is liable to offend in a circumstance where his will is denied. His offending may involve the use of a weapon.

Should an order be made

1. [42]

   I am well convinced that the only proper exercise of my discretion under s 9 is to make an ESO. I repeat, the contrary is not argued. In coming to this conclusion, I have had regard to s 9(2) and also the mandatory considerations in s 9(3). I consider that I have sufficiently referred to each of those matters in my aforegoing analysis of the evidence.

2. [43]

   Notwithstanding his alleged breaches of the conditions of his ISO I have formed the view on the evidence provided by the risk management report that with some difficulty SLD can reasonably and practicably be managed in the community provided, of course, he complies. As I have said more than once a CDO is not sought, but it does seem apparent that there is nothing to be gained by keeping SLD in custody. Such gains as may have been obtained already are likely to be lost. He would need to be released at some stage and his management in the community would become even more difficult than it is now if he were incarcerated for a further extended period. I cannot be completely confident that SLD will comply with the obligations of his ESO given his recent history. I repeat compliance will be very challenging for SLD and his DSO. But managing him in the community now seems to be the better option, having regard to the paramount consideration of community safety notwithstanding the challenges. The lesser consideration of rehabilitation, which in any event feeds into community safety, also suggests that an ESO should be made. Such obligations as SLD may be subject to under the Child Protection legislation referred to in s 9(3)(g) would of themselves be entirely inadequate to manage SLD’s risk and he has not had the opportunity in any event to demonstrate an ability to comply with those regimes.

3. [44]

   I propose to make an ESO.

Duration

1. [45]

   I turn then to the vexed question of the duration of the ESO. I have borne in mind Dr Smith’s view that successful management in the community will take at least 2 to 3 years of sustained effort. If that point is reached, it will still be necessary for SLD to demonstrate that he can maintain that level of compliance with his supervision without incident.

2. [46]

   I have also taken into account that the conditions of his ISO and those which I will impose for his ESO are very stringent. However, the intent is to confer a large degree of discretion on the DSO who will be responsible for SLD’s ongoing management. I am aware that restraint can be eased for persons subject to the ESO who make good progress under supervision, and that should be encouraged.

3. [47]

   Dr Smith perhaps admits of the possibility that an order of 4 years duration may be sufficient and in determining the duration of an order the Court needs to bear in mind SLD’s general right to be at liberty following the expiration of the sentence lawfully passed upon him. Mr Sheehan is of the view that there is no warrant for reducing the duration below the maximum period of 5 years.

4. [48]

   I appreciate that the imposition of a somewhat shorter ESO may provide encouragement to SLD that there is light at the end of the tunnel. I have given this aspect anxious consideration. However, it seems to me that both the course of SLD’s incarceration and the difficulties he appears to have experienced in complying with the ISO demonstrate that progress is likely to be slow and the gains very much a matter of increment. Having regard to what I have said about the flexibility of the discretion conferred upon the officers of CSNSW responsible for SLD’s supervision I am of the view that a duration of 5 years is appropriate. If SLD makes good progress the level of restriction can be reduced on the discretionary basis.

Conditions

1. [49]

   There is no issue that the conditions imposed by Ierace J, including the line of sight condition, are appropriate for the purposes of s 11 and I propose to impose them.

Orders

1. [50]

   My orders are:

   1. (1)

      Under s 5(b) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to an extended supervision order for a period of 5 years from today.

   2. (2)

      Under s 11 of the said Act, the defendant is to comply with the conditions of the extended supervision order as set out in the schedule to the amended summons filed in court on 11 July 2023 for the duration of the order;

   3. (3)

      Access to the 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 for access;

   4. (4)

      Note that s 15A Children (Criminal Proceedings) Act 1987 (NSW) applies to prohibit the publication of the identity of the defendant, except in accordance with its terms.