State of New South Wales v Peters (Final)

By a summons filed on 15 December 2021, the plaintiff, the State of New South Wales, sought interim orders and final relief under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) in respect of the defendant, Damien Anthony Peters.

Mr Peters pleaded guilty to two separate murders in 2001 and, on 20 December 2002, he was sentenced as follows:

The non-parole period for the last of these sentences expired on 10 September 2014 and that sentence will expire on 10 September 2022.

After 10 September 2014, Mr Peters was released to parole in November 2016, July 2018 and December 2018 but, on each occasion, parole was revoked because of non-compliance with parole conditions. Mr Peters is presently in custody serving the balance of his sentence.

As noted above, on 15 December 2021, the State filed a summons in the present matter, in which the following relief was sought:

On 10 February 2022, Lonergan J heard the application for the interlocutory and interim orders sought in the summons.

On 17 February 2022, Lonergan J published her judgment, State of New South Wales v Peters (Preliminary) [2022] NSWSC 109, which sets out in some detail Mr Peters’ background, the nature of his offending, his previous releases to parole and consideration of other relevant factors in accordance with s 9(3) of the CHRO Act. On that day, her Honour made the following orders:

Despite the date specified in order 2(a), the IDO made by Lonergan J did not commence on 17 February 2022 because its operation was suspended by virtue of s 18C of the CHRO Act, which relevantly provides:

Since Mr Peters’ parole has been revoked, he will be in lawful custody until his sentence expires on 10 September 2022. By virtue of s 18C(1)(b) and (1A), the 28 day IDO imposed by Lonergan J will be suspended until the expiration of his sentence. Accordingly, unless the IDO is revoked, Mr Peters will be subject to the IDO for 28 days commencing on 11 September 2022 and expiring on 8 October 2022.

In accordance with orders 1(a) and (b) made by Lonergan J, Mr Peters was examined by Dr Andrew Ellis, forensic psychiatrist, and Mr Patrick Sheehan, forensic psychologist, and both Dr Ellis and Mr Sheehan provided a report to the Court.

The application for final relief sought in the summons came on for hearing before me on 31 August 2022. At the commencement of that hearing, leave was given to the plaintiff to file an amended summons which deleted the prayers seeking a CDO and limited the substantive relief claimed to a 5 year ESO.

It can be noted at this point that there was no opposition to the making of the order sought in prayer 8 restricting access to the Court file to non-parties until after the parties had the opportunity to be heard in relation to any application for access. In these circumstances, and given the nature of these proceedings and the fact that there is no permanent restriction on access effected by the order, I am satisfied it is appropriate to make such an order in this case.

The parties took a commendably focused approach to the real issues in dispute as to whether an ESO should be made in the present matter.

The objects of the CHRO Act are stated in s 3. The primary object includes providing for the extended supervision of high risk violent offenders so as to ensure the safety and protection of the community: s 3(1). A secondary object is to encourage high risk violent offenders to undertake rehabilitation: s 3(2).

Section 5B of the CHRO Act provides that this Court may make an ESO if:

It was not in dispute, and I accepted, that:

Accordingly, the prerequisites in s 5B(a), (b) and (c) were met in this case. As to the question of whether the Court is satisfied of the matter in s 5B(d), s 9 deals with how the Court may determine an application for an ESO. Section 9(1) states that the Court may make an ESO or dismiss the application. Section 9(2) establishes that, in determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration.

Section 9(3) sets out a list of non-exhaustive list of mandatory considerations when determining whether to make an ESO, as follows:

Finally, under s 9(4), any intention of the offender to leave New South Wales (whether permanently or temporarily) is expressly made an irrelevant consideration.

Mr McGorey of counsel, who appeared for the State, submitted that in all the circumstances the Court should be satisfied to a high degree of probability that Mr Peters poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO and that such an order should be made for 5 years in the present case.

Mr Johnston of Senior Counsel, who appeared with Mr Bhutani for Mr Peters, expressly indicated that Mr Peters did not wish to make any submissions on the issue of whether the Court should be satisfied to a high degree of probability that Mr Peters poses an unacceptable risk of committing another serious offence if not kept under supervision. Similarly, no submissions were made on behalf of Mr Peters that the discretion to make an ESO should not be exercised in his case.

The commencement and duration of an ESO are governed by s 10 of the CHRO Act which contains the following relevant provisions:

While the State submitted that any ESO to be imposed should be for a term of 5 years, Mr Peters contended that the ESO should be for no longer than 3 years.

Section 11 of the CHRO Act sets out conditions which may be imposed when an ESO is made:

The other area of dispute between the parties related to the precise terms of the conditions to be imposed in the present case.

In summary, there was no dispute as to the principles to be applied in considering whether to make an ESO or as to whether an ESO could and should be ordered in the present case. The issues to which the parties directed their attention at the final hearing were the duration of the ESO and the conditions to be imposed under the ESO.

In addition to the statutory provisions referred to above, the relevant principles to be applied when considering the imposition of an ESO in accordance with the CHRO Act were not in dispute. It is sufficient to note for present purposes what follows.

As noted before, when determining whether the Court is satisfied to a high degree of probability that an offender poses an unacceptable risk of committing another serious offence if not kept under supervision, the paramount consideration must be the safety of the community: s 9(2) of the CHRO Act. In addition, the primary and secondary objects of that Act, found in s 3, are to be borne in mind when making this evaluative judgment.

The standard to which the Court must be satisfied that an offender poses an unacceptable risk of committing a further serious offence is higher than the civil standard of proof and is “beyond more probably than not” but there is no requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA). In making such a finding to the required standard, however, the Court does not have be satisfied that the offender is more likely than not to commit a serious offence, in order to find that he or she poses an unacceptable risk: s 5D.

The assessment of whether the risk of committing another serious offence posed by an offender is unacceptable should take into account the likelihood of the risk coming to fruition and the gravity of the consequences assuming the risk eventuates: State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an unacceptable risk (Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [44] (Beazley P)). Nonetheless, consideration of an offender’s circumstances, including the offender’s interest in liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order as well as consideration of the appropriate conditions to be imposed as part of any ESO: Lynn at [131] (Basten JA) and [149] (Gleeson JA).

A proper consideration of the relevant matters in s 9(3) in this case is informed by an understanding of Mr Peters’ background.

Since there was no dispute about his background and it was addressed in some detail by Lonergan J in the preliminary decision, I have adopted as an accurate summary and taken into account what her Honour said at [5]-[19], which was as follows:

Furthermore, given the absence of any submissions on behalf of Mr Peters that the Court should not be satisfied to the requisite standard that he poses an unacceptable risk or that an ESO should not be made, I shall deal with the matters in s 9(3) more briefly than might otherwise have been the case. In considering each of these matters, I have taken into account the evidence that was adduced at the hearing

As a result of the orders made by Lonergan J, Mr Peters was examined by a forensic psychologist and a forensic psychiatrist.

Mr Patrick Sheehan, forensic psychologist, provided a report dated 15 July 2022. Mr Sheehan had interviewed Mr Peters via AVL on 12 July 2022 for approximately two and a half hours. After summarising Mr Peters’ personal history, aspects of the index offending, social development and drug and alcohol use, Mr Sheehan referred to his health and psychiatric history. It was noted that Mr Peters reported a long history of unstable mood, relying on external sources, such as substance use and seeking the validation of others, to regulate his mood. It was recorded that he was treated with antidepressant medications since entering custody in 2001 and that he had been treated with a range of psychotropic medications including mood stabilising medications between about 2011 and 2013. Bipolar affective disorder was excluded by Dr Chew in 2016 and Dr Elliott in 2019. Mr Sheehan noted that Mr Peters was at that time prescribed the antidepressant medication sertraline and he showed an unstable affect during the interview, quickly shifting from affable to irritable and aggrieved, although he did not present as clinically depressed or manic.

In Mr Sheehan’s view, the evidence suggested long-term characteristics that were emblematic of personality disorder but he noted that there was no clear evidence of childhood Conduct Disorder, which is a pre-requisite for full diagnosis of antisocial personality disorder. He was of the view that Mr Peters’ history was consistent with Cluster B presentation, embodying several hallmarks of antisocial personality disorder, borderline personality disorder and narcissistic personality disorder. It was also his opinion that Mr Peters’ personality disorder was his primary presenting feature and could account for much of his poor adjustment through life, including his poor decision-making during parole supervision. Mr Sheehan said that Mr Peters’ personality features “form a central aspect of his risk profile”. In addition, Mr Sheehan said that Mr Peters’ substance use history would meet the criteria for polysubstance use disorder which was “mild, in early remission, in a controlled environment, under opiate agonist/antagonist therapy”.

In relation to his assessment of Mr Peters’ risk of violent offending, Mr Sheehan applied the Violence Risk Scale (VRS), a conceptual actuarial tool developed to assess the risk of violence for forensic clients, which assesses both static and dynamic risk factors to provide a comprehensive evaluation of an individual’s risk for violence. The overall result of the VRS estimated Mr Peters’ risk for violence as within the Medium range, relative to the sample population used in the study. In Mr Sheehan’s view, Mr Peters’ risk of violence extended to a “serious violent offence” as a result of his known capacity for lethal impulsive violence under particular circumstances.

Mr Sheehan noted that Mr Peters had participated in several medium intensity programs designed to address his substance use, violence and affective self-regulation, however, his insight remained unreliable, particularly with regard to appraising his own behaviour as it related to risk. Mr Sheehan said in his Executive Summary:

As to the duration of an ESO, Mr Sheehan was of the view that Mr Peters’ risks factors were chronic and this would indicate that an order at the upper end of the available range would be appropriate.

Dr Andrew Ellis, forensic psychiatrist, provided his report dated 15 July 2022, having conducted a clinical interview with Mr Peters on 1 July 2022 by AVL for two hours. After addressing Mr Peters’ current clinical issues, his psychiatric history, substance use and addiction history, medical history, criminal history, background and development and psychosexual history and having undertaken a mental state examination, Dr Ellis was of the view that Mr Peters would meet the criteria for a substance use disorder, involving dependent use of opioids, cannabis, stimulants and benzodiazepines, currently in remission while on replacement therapy in a controlled environment. In addition, it was considered that Mr Peters would meet the criteria for a personality disorder. It was noted that Mr Peters had a history of head injury, drug use and HIV, untreated for some years, and any or a combination of these might lead to subtle impairments of memory or executive function. In those circumstances it would be of benefit for him to have brain imaging and educational and neuropsychological measures to assess his strengths and weaknesses in cognitive function.

Dr Ellis made reference to the HCR – 20 V3 structured professional judgement tool when assessing Mr Peters’ risk of violence and concluded that:

It was also Dr Ellis’s opinion that, from a psychiatric perspective, further incarceration under a CDO would not be recommended, unless in a short form to secure accommodation. The doctor continued:

Dr Ellis also included certain recommendations for periodic forensic psychiatric review and psychological intervention directed at Mr Peters’ personality disorder. He recommended monitoring to ascertain the proper use of prescribed substances and ongoing replacement therapy. It was also Dr Ellis’s opinion that electronic monitoring and scheduling could assist with concerns about potential deception but, should his routine become stable and predictable, the need for monitoring in this fashion would reduce.

As to the term of any order, Dr Ellis’s opinion was that from a psychiatric risk management perspective a period of 3 years’ supervision was “reasonable in order to improve function in the community and refine the appraisal of risk”. More specifically it was explained:

I accepted the evidence of both Mr Sheehan and Dr Ellis.

There were a number of reports containing assessments of Mr Peters’ risk and circumstances prepared over many years. These included reports of Mr Samuel Ardasinski, Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services, dated 16 September 2013 and 28 October 2021.

Mr Ardasinski was of the view, in his later report, that:

Mr Ardasinski also provided useful observations concerning the types of conditions which might be imposed if an ESO were thought to be appropriate. In particular, he was of the view that if Mr Peters were to be subject to an ESO, the mitigation of future risk may be enhanced by ongoing community supervision as well as ongoing participation in community-based programs and individual risk management sessions with Corrective Services New South Wales (CSNSW) Psychology as well as counselling for his substance abuse.

In my view, Mr Ardasinski’s opinions were consistent with those of Dr Ellis and Mr Sheehan. Furthermore, none of the other reports that have been obtained in relation to Mr Peters since he committed the index offences was submitted by the parties to establish anything to the contrary of Dr Ellis’s and Mr Sheehan’s opinions and I did not have any reason to conclude that those other reports called into question any aspect of Dr Ellis’s or Mr Sheehan’s evidence.

A risk management report dated 19 November 2021 was prepared by Mr Mick Glover, Community Corrections Officer, with CSNSW. After noting Mr Ardasinski’s most recent assessment that Mr Peters was in the moderate risk category of violent offending, Mr Glover identified Mr Peters’ risk factors as being: substance abuse; stability of relationships with significant others; emotional control, sexual issues and mental health instability; violence cycle and cognitive distortion; work ethic; impulsivity; and, lack of goals. Mr Glover also reviewed Mr Peters’ post release plans and his management in custody and his previous response to Community Corrections supervision while on parole.

Mr Glover then outlined the risk management plan which could be put in place if Mr Peters were subject to an ESO. Without attempting to be exhaustive, this would include weekly contact with a community corrections officer, unannounced home visits on a monthly basis, and monitoring of his behaviour in the community through covert observation and face-to-face contact. In addition his engagement with professional services upon his release for management of substance dependency and anxiety would also be monitored. Mr Peters’ criminogenic risks and needs would be addressed through behavioural change exercises being incorporated into his case plan which would be reviewed every two months to ensure its continued relevance.

Mr Glover also put forward recommendations for conditions and explained why he recommended such conditions. Those conditions included: electronic monitoring; scheduling of movements and a curfew; accommodation restrictions; conditions in relation to alcohol and other drug use; restrictions on attending certain locations, especially those associated with a drug supply including high-density unit complexes; education employment and financial conditions; non-association conditions; conditions limiting possession and access of weapons and access to the internet and other electronic communications; search and seizure conditions personal details in appearance conditions; and, medical intervention and treatment conditions.

Dr Ellis, Mr Sheehan, Mr Ardasinski and Mr Glover have each referred to treatment or rehabilitation programs which they consider appropriate for Mr Peters. In general terms, the types of programs recommended by each of these experts were generally consistent. In addition it can be noted that Mr Peters has commendably completed a number of programs while in custody and has generally expressed a willingness to participate in the types of programs proposed if he is made subject to an ESO. Nonetheless, he has also expressed his concern about his ability to comply with all the conditions which may be imposed and the requirements inherent in the programs, in light of his mental health issues and previous failures to comply when under supervision in the community on parole.

It does not appear that there are any reasonably available options other than the imposition of an ESO for reducing the likelihood of his reoffending. Dr Ellis’s opinion, which I accept, was that further incarceration under a CDO would not be recommended because there was nothing to indicate that extended incarceration reduced recidivism rates, and those things that do reduce rates of recidivism, such as vocational and diversional placement, and community reintegration, would be unnecessarily slowed by prolonged incarceration.

Mr Peters was released to parole on three occasions between 2016 and 2018 and each time he contravened directions, interfered with or removed his monitoring device, used drugs or displayed occasional aggressive and threatening behaviours. Nonetheless, in custody he has not engaged in any conduct resulting in punishment except for refusing urine tests and failing to provide drug samples. There were two such failures in 2020, one in 2021 and the last failure occurred on 14 January 2022. I accepted the submission that although his history does not bode well for his complete compliance with an ESO, his performance in custody, when viewed in totality, points to him having the capacity to comply with obligations, if he engages constructively with supervision and the supports that would be made available to him.

Mr Peters’ criminal history has been summarised above. The two murders are the most significant aspect of that history and they suggest a pattern of offending which involves extreme violence in the context of controlling sexual relationships, especially when illicit drug and alcohol use are involved. The programs and conditions recommended by the psychiatrists and psychologists whose reports have already been referred to above are designed to address these issues.

At the time of sentencing, Wood CJ at CL said at [128]-[129]:

The evidence of Ms Kelli Grabham established that Mr Peters has been assessed as suitable for placement at the Nunyara Community Offender Support Program Centre (COSP), and I understood that it was common ground that accommodation would be available at that facility if he is released from custody on the expiration of his sentence subject to an ESO.

In her affidavit, Ms Grabham also provided confirmatory details of the nature of the supervision to which Mr Peters would be subject under an ESO and a fuller explanation of various aspects of the proposed conditions of the ESO including, inter alia, the stages of electronic monitoring where such a condition is imposed and how such monitoring interacts with scheduling and curfew conditions.

I accepted all the evidence referred to above as it appeared to me to be generally credible and consistent. Given the nature of the index offending, in all the circumstances referred to above and in the absence of any submissions by Mr Peters to the contrary, I was satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if an ESO is not made.

In light of that and the other findings I have made, the Court’s power to make an ESO under ss 5B and 9(1)(a) is enlivened in this case.

In my view, given the objects of the CHRO Act, the nature of the index offending, Mr Peters’ mental health and other issues, the assessments of his risk of reoffending in the community if not supervised, the potential gravity of consequences if he does reoffend and the absence of any submissions to the contrary, an ESO should be made in this case.

The two remaining issues are:

Mr Peters submitted that the ESO should be for a term not exceeding 3 years and relied on Dr Ellis’s evidence to the effect that a period of 3 years’ supervision was “reasonable in order to improve function in the community and refine the appraisal of risk”. Mr Peters’ submissions noted that, if the risk remained unacceptable towards the end of the 3 year ESO, there was nothing to prevent a further ESO being sought.

The State sought an ESO for a term of 5 years. In this regard, in his ’s report, Mr Sheehan commented that Mr Peters’ risks issues were chronic and this would indicate that an order “at the upper end of the available range would be appropriate”. The effect of s 10(1A)(a) of the CHRO Act is that 5 years is the maximum term for which an ESO may be imposed, subject to any suspension of the order in accordance with that Act.

In oral evidence, Mr Sheehan referred to the comment in his report, and clarified that he meant a term of between 3 and 5 years. In his view there was merit in not imposing the maximum 5 year term because “offenders…find the full-term to be crushing and lose optimism that they will be able to succeed in that order”. He further opined that “[offenders’] active participation in the order is basically essential for the order to succeed.” He agreed with Dr Ellis that 3 years was the minimum length in which one could really expect meaningful change. Mr Sheehan commented that determining the appropriate length was not a scientific exercise but, in effect, involved an evaluative judgment in light of all relevant factors.

While Dr Ellis acknowledged that Mr Peters’ psychiatric disorders were chronic and likely to persist beyond any period of supervision, he did not view this as requiring the present ESO to extend for 5 years. As noted above, Dr Ellis explained in his report that:

In oral evidence, Dr Ellis opined that a term of 3 years would be suitable. He was of this view even though he accepted that Mr Peters’ prior performance in breaching parole was a negative factor. He balanced this, however, with there having been a passage of time since his previous breaches and Mr Peters having engaged in programs designed to address his personality issues. Dr Ellis opined that there could be a material reduction in risk in 2 years if that was accompanied by abstinence, stable employment, and stable accommodation, but that 3 years was appropriate due to the negative factors he identified. He also noted that there may not be an improvement in 3 years, and that it may take 5 years, but that there was no empirical evidence suggesting which was more likely. Ultimately, Dr Ellis was of the view that, from a psychiatric point of view, largely based upon his experience and not any scientific method, and the circumstances of Mr Peters, a term of 3 years was the preferred duration for the ESO.

In light of the reports and oral evidence of Mr Sheehan and Dr Ellis, I formed the view that the safety and protection of the community can be relevantly ensured by making an ESO for 3 years, with the possibility of a further ESO being made if the risk posed by Mr Peters remained unacceptable towards the end of the 3 year period. Section 10(3) expressly provides that a further ESO could be made in such circumstances. That subsection states:

Thus, balancing the two objects of the CHRO Act and taking into account all the relevant circumstances, I was of the view that the term of the ESO should be 3 years, noting that there is nothing to prevent a further ESO being made prior to the end of that 3 year terms, if the requirements of the CHRO Act were met and Mr Peters’ circumstance were such that continued supervision was required.

The conditions that may be imposed as part of an ESO are governed by s 11 of the CHRO Act, which has been set out above. The conditions may include, but are not limited to, those specified in s 11(1) of the CHRO Act and must include the condition in s 11(2).

The conditions to be imposed are those that the Court considers appropriate in order to mitigate the unacceptable risk otherwise posed by the offender. The application of s 11 does not require that there must be a specific, demonstrated link to the past offending which is the basis of the ESO. Rather, the Court must be satisfied, having regard to the scope, purpose and objects of the CHRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [53] (Beazley P, McColl and Ward JJA).

In the amended summons, the State sought the imposition of 57 proposed conditions. Many of these were not the subject of dispute and the defendant was prepared to accept them. I have considered these undisputed conditions and, in my view, they were appropriate in the circumstances to address the risk of future serious violent offending and should be imposed. It is not necessary to say more about those conditions. In addition, some disputes as to the proposed conditions were resolved by way of interactions between the bench and the parties during the hearing. These included conditions 10, 17, 25, 28, 31, 33, 41, 43, 45, 46, 46A, 55 and 56. Once again, I accepted that these conditions, as agreed in substance, were also appropriate in the relevant sense and do not require further explanation in these reasons.

The conditions which remained in dispute were:

I shall address the conditions that remained in dispute in order.

The State proposed that condition 4 require Mr Peters to wear electronic monitoring equipment, as directed by a Departmental Supervising Officer (DSO), and not tamper with, or remove, the equipment. There was no proposed time limit on when or for how long the DSO could direct that the electronic monitoring equipment was to be worn. Ms Grabham gave evidence that when a court made an order authorising electronic monitoring, if the DSO was of the opinion that electronic monitoring was necessary for the protection of the community, a direction would be given for the offender to wear electronic monitoring equipment. Ms Grabham also explained the four stage matrix for monitoring, scheduling and curfew which is apparently usually employed by the DSO supervising an offender subject to an ESO. The first three stages involve electronic monitoring and the final stage does not. There are, however, no specified time limits on, or expected timings in relation to, these four stages but the offender’s progress through the stages is monitored at quarterly case management review meetings. Ms Grabham also said:

The defendant contended that any condition permitting electronic monitoring should be limited so that a DSO could make a direction for electronic monitoring only once during the term of the ESO for a period of up to 12 months but a breach of any condition of the ESO would cause the 12 month period to restart. This proposal for an explicit timeline was, in effect, said to provide an incentive to comply with the electronic monitoring and other conditions of the ESO which, it was submitted, would not only serve to protect the community but also would assist in his rehabilitation.

In oral evidence, Mr Sheehan was of the view that there should be an explicit timeline and performance expectations for electronic monitoring in the conditions to be imposed as part of any ESO. This was said to be because electronic monitoring with the duration at the discretion of a DSO can be viewed by offenders as arbitrary and make them feel powerless and unable to be a part of the solution. In his view, specifying a timeline for removal of electronic monitoring was a useful way to offset such feelings through providing offenders with a clear understanding of what is required to progress. Mr Sheehan said that his view was based upon, in large part, prior matters he had been involved in. Mr Sheehan also commented to the effect that the continuous presence of electronic monitoring, in circumstances where a re-application is made, can obscure an accurate view of how the person can manage themselves without monitoring. Mr Sheehan was of the view that it may possibly be appropriate to reinstitute electronic monitoring where circumstances change, but that such a course places a lot of weight upon the value of electronic monitoring and risks further destabilising an offender if they are going through a difficult period.

Mr Sheehan also opined that an offender may not improve in the areas of social functioning, re-entering the workplace or in intimate relationships whilst he or she is subject to electronic monitoring and this hinders community development which is a necessary for electronic monitoring to be removed. Ultimately, I understood that Mr Sheehan was of the view that a condition that stipulated that electronic monitoring could be imposed for up to 12 months with no further monitoring except if there were a breach of conditions would provide a suitable timeline and performance expectation.

Consistent with Mr Sheehan’s opinion, Dr Ellis was of the view that a condition allowing for the removal of electronic monitoring after a 12 month period with no breaches was reasonable. He also suggested that the threshold for re-imposition of electronic monitoring could be where the DSO was considering bringing a breach charge against Mr Peters.

In my view, the lack of any definite time frame in the condition itself could reasonably have a discouraging effect on Mr Peters and undermine the effectiveness of the ESO. The evidence of Dr Ellis and Mr Sheehan also supported the conclusion that an appropriate condition in relation to electronic monitoring, which adequately mitigated the risk of further serious violent offending by Mr Peters and which also recognised the difficulties he is likely to experience and the benefit to Mr Peters and the community of his rehabilitation, should include a specific time frame. For these reasons and in all the circumstances, I shall include a condition for electronic monitoring as follows:

The State proposed that there be conditions requiring the defendant to provide a weekly schedule of movements, any deviation from which would constitute a breach of the ESO, to complement the electronic monitoring, as follows:

The purpose and utility of these conditions was explained by Ms Grabham and I accepted that some form of planning or scheduling was appropriate in this case. Nonetheless, it was not clear from her evidence what would be included in “Restictive” scheduling or “Not restrictive” scheduling, as those terms were used in matrix provided by Ms Grabham. The concern which was raised by the defendant was that if the scheduling obligations were too onerous, this could lead to technical breaches by Mr Peters even for minor deviations which did not involve any risk to the safety and protection of the community but which would expose Mr Peters to criminal sanctions. On the other hand, it did not appear to me to be appropriate to include a condition prohibiting unreasonable refusal of approval of a proposed schedule as was suggested by Mr Peters, as that was not a condition with which the defendant was required to comply and it would be a potential source of dispute without there being any established basis for concluding that unreasonable refusal of approval was likely to be a problem that arose in the present case.

In general terms, the evidence of Dr Ellis and Mr Sheehan was supportive of scheduling but not so strict as to lead to inadvertent or trivial deviations constituting breaches of the conditions. Mr Sheehan was of the view that there should be performance expectations for conditions relating to scheduling. This was said to be for similar reasons to those he identified above in relation to electronic monitoring. Mr Sheehan endorsed some flexibility in scheduling because he was of the view that scheduling in a strict manner, such as requiring an offender to specify a particular time he or she is to attend the shops, is contrary to its purpose which is to provide structure, routine and predictability to an offender’s life. Dr Ellis endorsed scheduling as a general mental health intervention tool for people’s day to day function and similarly supported scheduling which allowed for a greater degree of flexibility. He endorsed certain aspects of scheduling such as, for example, a summary of anticipated movements, the giving of a schedule in advance, and the setting of exclusion zones.

Taking into account all the submissions and the purpose of such conditions and their protective and therapeutic aspects, in my view the appropriate scheduling conditions are:

There was no dispute between the parties, and I accept, that a curfew would be appropriate to limit the defendant’s exposure to anti-social influences and situations that heighten the risk of the defendant committing a further serious violent offence. The dispute concerned whether the curfew should be from 9 pm to 6 am as the State contended, or from 12 am to 6 am as Mr Peters submitted. The defendant submitted that a 9 pm evening curfew was arbitrary and could interfere with social and work commitments. The State submitted that its proposal gave the DSO the discretion to relax the curfew in appropriate circumstances thus permitting sufficient flexibility and that the defendant would be subject to a curfew in any event at his initial accommodation. I accept the defendant’s submission that adults stay out later than 9 pm and it was likely that Mr Peters could do so without heightening the risk posed by him. I do not accept that the curfew should be specified in the condition however as from 12 am to 6 am. In my view, a curfew from 10 pm to 6 am with the flexibility of the DSO approving other arrangements strikes an appropriate balance.

Consequently, condition 9 should be as follows:

Proposed condition 11 required the defendant to allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

The defendant’s proposal was that condition 11 should read:

It was submitted that such a restriction on the hours of visiting was designed to avoid an abuse of power. The State submitted that the risk factors in relation to the defendant, in light of the index offences, included intimate relationships and substance abuse within residences, noting that bodies were dismembered and concealed where the defendant was residing. A power to visit at any time serves to mitigate the risk posed by the defendant. Furthermore, if visits were prohibited at certain times, this involved the risk that the defendant might feel more able to engage in concerning behaviours during those times.

In all the circumstances, there appeared to me to be considerable force in the State’s submissions and it was appropriate to include condition 11 in the following form:

The State proposed conditions prohibiting the possession or consumption of alcohol or the possession or use of unlawfully obtained drugs. There was no dispute as to the drug condition. As to the alcohol condition, the defendant submitted he should be allowed to possess and consume alcohol provided his blood alcohol content was not greater than 0.05. In response, the State noted that its proposal allowed flexibility by permitting a DSO to give prior approval in relation to alcohol possession or consumption and alcohol can be a matter of concern as a gateway to misuse of other substances. It was also observed that the defendant’s possession of alcohol was not addressed by his proposal.

In my view, the State’s proposal strikes an appropriate balance between management of risk and taking into account the defendant’s legitimate needs and circumstances. As Lonergan J noted in her preliminary judgment, Mr Peters demonstrated on parole that he would take drugs and use alcohol to manage stress, anxiety and depression and his risk scenarios included being unable to deal with his emotions, with the use of drugs and alcohol leading to his becoming angry and violent.

Accordingly, in my view, condition 21 should be:

The State has proposed that the conditions relating to the internet and electronic devices should include the following:

While the defendant acknowledged that Mr Sheehan opined that access to the internet should be controlled in Mr Peters’ case because of the risk arising out of his forming associations that might involve escalating hostilities, it was also noted that Mr Sheehan did not view these conditions as central to risk management in the defendant’s case. It can also be observed, as submitted by the defendant, that modern life now requires people to use electronic devices capable of accessing the internet at facilities such as Centrelink and Services New South Wales and even in restaurants and it would be difficult for the defendant to show such devices to a DSO and obtain approval before using them. Furthermore, common social media platforms, communication applications and even online games provide encrypted messaging services as a matter of course.

I accepted the State’s submission that the internet, social media, the dark web and encrypted applications provide ready opportunities to access illicit drugs as well as opportunities to contact persons to develop personal and intimate relationships and that these facilities provided opportunities for conduct on the part of the defendant which could lead to an increases risk of his engaging in serious violent offending. Nonetheless, proposed conditions 36 and 39 have to be viewed in the context of the other conditions relating to internet and electronic device use, which were not the subject of any challenge. These included conditions 24, 35, 37, 38, 40, 41, 42, 43 and 44. These other conditions provided a range of restrictions on Mr Peters’ use of the internet and electronic devices and an extensive regime of supervision and inspection of the defendant’s devices and internet activities by a DSO.

In light of the other conditions concerning electronic device and internet usage that are to be included, it does not appear to me to be necessary or appropriate to include proposed conditions 36 and 39 at this stage, especially given the practical difficulties which they might pose if they were to be strictly complied with.

Since Mr Peters’ sentence expires on 10 September 2022 and, as I understand it, there is suitable accommodation available for him from 11 September 2022, it appears to me that the ESO which is to be imposed should commence immediately after the expiration of his sentence. The parties were in agreement with that course. In these circumstances, the IDO made by Lonergan J on 17 February 2022 is no longer necessary or appropriate and it should be revoked, together with the warrant for committal associated with that IDO.

For all the reasons set out above, the Court orders and directs: