State of NSW v Tozer

1. [1]

   The State of New South Wales (“the State”) proceeds, in this Court, on a Further Amended Summons which was filed on 11 November 2016. That Summons seeks an order, pursuant to s 5F and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the HRO Act”) that the defendant, John Tozer, be subject to a High Risk Violent Offender Extended Supervision Order (“ESO”) for a period of two years from the judgment of this Court.

2. [2]

   In addition, the State seeks an order that Mr Tozer be required by a direction of the Court pursuant to s 11 of the HRO Act, to comply with conditions set out and specified in the order. Mr Tozer resists the making of the orders and submits that the application by the State ought be dismissed. It is submitted, in the alternative, that if the application is granted, the Court would vary some of the conditions sought and vary the time periods sought in the ESO.

Procedural History

1. [3]

   The Summons, prior to its amendment, was originally filed on 27 September 2016. A preliminary hearing occurred on 11 November 2016, before Campbell J. For the reasons which his Honour expressed: see State of NSW v Tozer [2016] NSWSC 1643, his Honour made orders which:

2. [4]

   On 21 December 2016, the Interim Supervision Order (“ISO”) was renewed by Campbell J for a period of 28 days, expiring on 25 January 2017.

3. [5]

   On 18 January 2017, the ISO was again renewed by Campbell J for a further period of 28 days to expire on 22 February 2017.

4. [6]

   A final hearing took place on 2 February 2017.

Statutory Regime

1. [7]

   The statutory regime requires that the State first satisfy the Court that the offender is a supervised violent offender within the terms of s 5(J)(2) of the HRO Act.

2. [8]

   That section provides:

3. [9]

   The second threshold test for the making of an ESO is as specified in s 5F of the HRO Act. That is, that the defendant is a “high risk violent offender”.

4. [10]

   The critical term contained in that section, “…a high risk violent offender”, is defined in s 5E in the HRO Act in the following way:

5. [11]

   Under s 9(1) of the HRO Act, this Court determines an application for an ESO by either making the ESO, or dismissing the application. Section 9(3) relevantly provides:

6. [12]

   It is necessary to note two other sections of the legislation. The first is s 12 of the HRO Act, which provides that a person who fails to comply with an ESO is guilty of an offence, the maximum penalty for which is a fine of $55,000 or imprisonment for five years or both. The second section to which it is necessary to have regard, is s 21 of the HRO Act which provides that proceedings of this kind are civil proceedings to be conducted in accordance with the law relating to civil proceedings.

Applicable Legal Principle

1. [13]

   The HRO Act has two objects. The first and primary purpose is to ensure the safety and protection of the community. The second object is to encourage high risk violent offenders to undertake rehabilitation: s 3 of the Act; Attorney-General for NSW v Gallagher [2006] NSWSC 340 at [21]; Attorney-General for NSW v Quinn [2007] NSWSC 873 at [10]; Attorney-General for NSW v Winters [2007] NSWSC 611 at [7].

2. [14]

   In understanding the provisions of s 5E, and in proceeding to make a determination under it, it is necessary to keep in mind two elements:

3. [15]

   The Court of Appeal considered the meaning of the phrase “a high degree of probability” in Cornwall v Attorney-General for NSW [2007] NSWCA 374. At [21] it said:

4. [16]

   See also Tillman v Attorney General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327 at [27].

5. [17]

   As to the question of whether Mr Tozer poses an unacceptable risk of committing a serious violence offence, the expressions ‘serious violence offence’ and ‘unacceptable risk’ require scrutiny.

6. [18]

   Button J observed in State of NSW v Lynn [2013] NSWSC 1147 at [16], that the expression ‘serious violence offence’ captures a wide range of criminal conduct which is not necessarily “… confined to offences of homicide, or even the intentional infliction of serious violence”. His Honour drew attention to the fact that the definition of “serious violence offence” in s 5A of the HRO Act includes an offence of causing grievous bodily harm to another person where the accompanying intention is only to cause actual bodily harm or where the offender is reckless as to the causing of actual bodily harm. It is necessary to keep in mind this broad range of offences as populating the statutory definition.

7. [19]

   In State of NSW v Thomas (Preliminary) [2011] NSWSC 118, R A Hulme J considered the meaning of “unacceptable risk” in the context of high risk sex offenders and observed at [16] ff:

8. [20]

   These remarks are apposite for a high risk violent offender.

9. [21]

   The Court of Appeal considered the meaning of “unacceptable risk” for a high risk violent offender, in Lynn v State of NSW [2016] NSWCA 57. Beazley P (with whom Gleeson JA agreed) expressed the following views at [49] ff:

10. [22]

    Gleeson JA noted that in the determination of an unacceptable risk, the intrusion into personal liberty which is the consequence of an order is irrelevant. At [148], he said:

11. [23]

    As his Honour went on to explain, the interests of the offender in liberty and privacy are taken into account at a later stage, when the Court is exercising its discretionary power under s 9 of the HRO Act to either make or refuse to make an ESO.

12. [24]

    It should also be noted that this Court may make an extended supervision order “if and only if” the offender is a high risk violent offender. As McClellan CJ at CL observed in Gallagher at [34]:

Index Offence

1. [25]

   The most recent (“index”) offence committed by Mr Tozer is that of causing grievous bodily harm to a person with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act. The facts were recounted by the sentencing Judge in the District Court. The conduct occurred at a nightclub in Penrith, late on the evening of 11 March 2011. Mr Tozer, together with a number of other associates, was at the nightclub enjoying the evening. During the course of the evening, one of Mr Tozer’s associates, for a reason which was not readily apparent, and without provocation, struck a 21 year old male on the jaw with a closed fist. That punch knocked the victim to the ground, where he lay unconscious.

2. [26]

   A short time later the same attacker attacked a friend of the first victim who was communicating on a mobile phone with the family of the first victim. The second victim was approached from behind by the original attacker, Mr Tozer, and a co-offender. He was punched to the face and head with a series of punches in quick succession by the original attacker. Mr Tozer and his co‑offender then joined in with that attack. During the attack the victim fell to the ground where Mr Tozer continued to attack him as he sat on the ground. Mr Tozer kicked the victim and only ceased the assault when pulled away by associates. The victim suffered serious injuries to his face as a result of the assault including a shattered right eye socket which required surgical repair including the replacement of part of the eye socket with titanium mesh.

3. [27]

   Mr Tozer was arrested at home and his premises were searched. During that search a document entitled “Large Scale Methamphetamine Manufacture” was located in his premises. His fingerprints were found on a number of pages throughout the document.

4. [28]

   In her Sentencing Remarks, the learned District Court Judge found, on the basis of a report from the Probation and Parole Services:

5. [29]

   Her Honour formed this conclusion with respect to Mr Tozer:

6. [30]

   Her Honour regarded the offence as a particularly serious example of its kind. She described the attack as one which was unprovoked upon a helpless victim who had already been struck by Mr Tozer’s co-offender. She said this:

7. [31]

   Her Honour concluded that Mr Tozer was “… someone with a significant propensity to violence”, who had an unenviable record which disentitled him to leniency.

8. [32]

   The total term imposed was one of 5 years and 6 months imprisonment commencing on 31 May 2011 and expiring on 30 November 2016. The non‑parole period component of that sentence was 4 years 1 month and 15 days, which expired on 15 July 2015.

9. [33]

   In imposing that sentence, the sentencing Judge took into account on a Form 1, the offence of possessing instructions for the manufacture of prohibited drugs contrary to the provisions of s 11C of the Drug Misuse and Trafficking Act 1985.

Previous Criminal History

1. [34]

   During the course of serving the sentence to which reference has been made above with respect to the index offence, Mr Tozer pleaded guilty to and was sentenced in the Penrith Local Court to a term of imprisonment of 12 months with respect to an offence of damaging property by fire or explosion, in circumstances where the property was valued at between $5,000 and $15,000.

2. [35]

   I do not think that this conviction is of any real weight in the issues which involve violence to individuals to be considered in this application and, accordingly, will not explore the details of it any further.

3. [36]

   On 3 January 2003, Mr Tozer was charged with two offences of violence. Prior to this time, Mr Tozer had not been charged with, or convicted of, any criminal offence. The first of the two offences was a charge of common assault, and the second a charge of murder. Ultimately, he pleaded guilty to an offence of common assault and to the offence of manslaughter. He was convicted and sentenced as follows:

4. [37]

   The Crown appealed against the inadequacy of that sentence. The Court of Criminal Appeal dismissed the Crown appeal.

5. [38]

   The sentencing Judge, who imposed sentence on 12 April 2005 in this Court, made the following remarks with respect to Mr Tozer’s behaviour. He was at that time a juvenile. The sentencing Judge described the events in the following terms:

6. [39]

   His Honour was satisfied that the conduct of each of the offenders, including Mr Tozer, was that they engaged in an unlawful and dangerous assault, in the course of which the victim was propelled or pushed head-on into a light pole, sustaining severe cerebral injuries and falling to the ground. At the time that occurred, Mr Tozer kicked the victim in the head. His Honour was satisfied that the kick was of sufficient violence to contribute substantially to the death of the victim. It was an intentional kick. His Honour was not persuaded that when inflicting the kick and the blows that Mr Tozer had any realisation that any real harm was likely to be caused to the deceased.

7. [40]

   The Crown appealed against each of the sentences imposed on Mr Tozer and his three co-offenders. The Court of Criminal Appeal delivered its judgment on 30 September 2005: R v MD, BM, NA, JT [2005] NSWCCA 342. With respect to Mr Tozer, the Court concluded this:

8. [41]

   The Court dismissed the appeal based on its residual discretion. In large part, that exercise of the residual discretion depended upon the fact that the non‑parole component of Mr Tozer’s sentence expired on 3 October 2005, just a few days after the Court delivered its judgment. In that respect, the Court said:

9. [42]

   In the consideration of the matters raised in this case, it is important to note these comments of the Court of Criminal Appeal because in light of them, it would be unwise to measure the seriousness of Mr Tozer’s conduct by reference only to the sentence which was originally imposed.

10. [43]

    On 21 July 2006, Mr Tozer was released on parole shortly after completing the Young Offenders program.

11. [44]

    Just under nine months later, on 7 March 2007, he was arrested and charged with an offence contrary to s 99(2) of the Crimes Act 1900, of demanding property with menaces with intent to steal. It was said that this offence occurred whilst he was in company.

12. [45]

    It appears that Mr Tozer and his victim had been friends for several years and were regular associates. Mr Tozer seems to have been in possession of information suggesting that the victim had been the perpetrator of a robbery during which an amount of Mr Tozer’s sister’s property was stolen including jewellery, a computer and sound equipment. The police investigation into the robbery did not proceed, in circumstances where Mr Tozer’s sister declined to give a statement to the police in relation to the matter when she learned that the victim was identified as a suspect.

13. [46]

    On 2 March 2007, Mr Tozer and a co-offender attended at the home address of the victim. The victim approached the front door. Mr Tozer took hold of the victim by the arm and led him into the front yard of the premises. There he produced a silver-coloured revolver from the back of his pants and, having showed it to the victim, threatened him with it. The two offenders and the victim then moved to a park across the road from the victim’s house. There, Mr Tozer pointed the revolver at the victim’s temple and again threatened him. The co-offender demanded that the victim arrange for his (the victim’s) mother to hand over the registration of her Subaru motor vehicle to them. That vehicle had a value of between $15,000 and $16,000. Mr Tozer and his co-offender then took the victim to their car, provided him with an RTA Notice of Transfer, and demanded that the victim take the Notice of Transfer to his mother and get her to sign it. Such demand was accompanied by a further threat.

14. [47]

    As the victim started to walk back towards the house, Mr Tozer called out to him and threatening that if he messed around “… we will come back and kill your whole family”. Upon returning to the house, the victim telephoned the police. Whilst that was occurring, the victim’s mobile phone rang. It was clear from material later obtained that the phone call was made by the accused.

15. [48]

    When interviewed by the police, the accused claimed that he was elsewhere at the time, namely at the Rebels Motorcycle gang clubhouse, and that he did not leave the premises at any time relevant to the commission of this offence. In light of what later occurred, that explanation was clearly, and knowingly, false.

16. [49]

    Mr Tozer was found guilty of this offence in the Central Local Court on 23 October 2007, and was sentenced to a period of imprisonment of 15 months commencing on 2 April 2007 and expiring on 1 April 2008 with a non-parole period of 9 months expiring on 1 January 2008.

17. [50]

    Mr Tozer was released on parole on 1 January 2008. He completed his parole uneventfully. He remained in the community until commission of the index offence. During that time he was not charged with the commission of any further criminal offence.

Other Relevant Material

1. [51]

   On 13 April 2015, a pre-release report was prepared by Corrective Services NSW. It gave a background of the family and social issues, previous community supervision and factors relating to offending. With respect to Mr Tozer’s past conduct whilst serving his sentence of imprisonment for the index offence, the pre-release report noted that on four occasions Mr Tozer had failed a prescribed urine test showing that he consumed a range of illegal drugs, that on three occasions he had refused to provide a urine sample for testing and that he had one charge on 10 December 2013 of intimidation. There were two other relatively minor institutional offences. The report said the following of Mr Tozer:

2. [52]

   The author went on to conclude her report with the following summary and recommendation:

3. [53]

   The unit leader of Wellington Community Corrections where the report was prepared, added these comments:

4. [54]

   On 15 May 2015, the State Parole Authority refused to grant Mr Tozer parole. It appears from the reasons given by the State Parole Authority that they adopted the recommendations and views of the Community Corrections staff.

5. [55]

   The decision to refuse parole was continued on 17 August 2015.

6. [56]

   The Court has been provided with the case-note reports of the NSW Department of Corrective Services commencing on 24 December 2015 and continuing through until Mr Tozer was released from prison and subjected to an ISO.

7. [57]

   Broadly speaking, it appears that during this period Mr Tozer did not commit any institutional offences, and has been relatively well behaved.

8. [58]

   These case-note reports disclose that in March 2016 Mr Tozer commenced participation in the Violent Offender Therapeutic Program (‘VOTP’). Participation in that program is voluntary.

9. [59]

   It appears that on 12 April 2016 he completed the VOTP. A report of his participation in that program was prepared by Ms Grant, a psychologist dated 26 April 2016. She concluded that Mr Tozer appeared motivated to complete the program and that he participated in a cooperative and effortful manner. He apparently completed all assigned tasks demonstrating “… a sound understanding of treatment concepts”. Ms Grant noted that his punctuality at the group sessions was satisfactory.

10. [60]

    Ms Grant noted urinalysis testing conducted on 13 September 2015 and 13 February 2016 returned negative results for illicit substances or non‑prescribed medication.

11. [61]

    She went on to describe assessments undertaken of Mr Tozer, saying this:

12. [62]

    It should be observed that the offences included in the VRS cohort recidivism rate include offences which would be less serious than those relevant to the HRO Act definition.

13. [63]

    The author of the report noted that the estimates provided by VRS testing did not directly correspond to the recidivism risk of an individual offender and said:

14. [64]

    In that part of the report headed “Conclusion and Recommendations”, Ms Grant said:

15. [65]

    The report made a series of recommendations to enable Mr Tozer to consolidate and maintain his treatment gains.

16. [66]

    On 11 May 2016, Community Corrections officers recommended Mr Tozer’s release to parole subject to various conditions. The supervisor of Community Corrections wrote this about Mr Tozer on 11 May 2016:

17. [67]

    On 31 May 2016, the case note reports recorded that Mr Tozer participated in the VOTP Maintenance and Outreach Program. The notes record that Mr Tozer was “accepting and realistic about his release and conditions” and that he actively participated in the group discussions.

18. [68]

    About three weeks later, Mr Tozer again attended at a VOTP maintenance and outreach group meeting. It was reported that he was “highly engaged in the group discussions”. It was reported that he behaved appropriately in the discussion and provided support to another group member who had received adverse news. The following comment was made:

19. [69]

    On 15 July 2016, Mr Tozer was released to parole. At the time of his release he was issued with a formal direction to refrain from associating with members of any outlawed motorcycle gangs and associated organised crime networks. He was also issued with a Weapons Prohibition Order under s 33(1) of the Weapons Prohibition Act 1998.

20. [70]

    After his release, Mr Tozer made contact, appropriately, with Community Corrections and also the ESO team at Blacktown.

21. [71]

    Whilst on parole, Mr Tozer attended the VOTP Maintenance and Outreach Program. Of significance is a case note report dated 16 September 2016, which is about two months after his release. It reads:

22. [72]

    About three weeks later, on 17 October 2016, there was a further interview with Community Corrections staff. This was reported in the following terms:

23. [73]

    On 22 October 2016, a home visit was conducted by staff of the Community Corrections Service to the address where the offender resided with his partner. No issues of any kind which could cause any concern to Community Corrections staff seemed to arise.

24. [74]

    Mr Tozer’s sentence expired on 30 November 2016, and as previously indicated, has continued under an ISO since that time.

25. [75]

    A number of expert reports have been put in evidence before the Court. It is appropriate to review them.

Mr Richard Parker

1. [76]

   Mr Parker, an expert psychologist, assessed Mr Tozer on 24 March 2016, and prepared a risk assessment report dated 29 April 2016. He was cross-examined on 2 February 2017.

2. [77]

   Mr Parker reviewed the various risk assessment instruments that had been administered to Mr Tozer over time, including by himself. I note that Mr Parker’s report was completed prior to Mr Tozer’s completion of the VOTP program in April 2016. Mr Parker noted that Mr Tozer had completed the Getting Smart program in 2013. He described that program as a short substance abuse program. He noted that Mr Tozer demonstrated insight and participated appropriately. He went on to express this view:

3. [78]

   Mr Parker expressed this prediction:

Ms Jeffress

1. [79]

   On 10 June 2016, Ms Jeffress, a very experienced officer of the Community Corrections Service ESO team, prepared a Risk Management Report.

2. [80]

   Ms Jeffress assessed Mr Tozer by means of the Level of Service Inventory – Revised (“LSI-R”) tool, which is aimed at measuring an offender’s general risk of reoffending when they are in the community. The LSI-R test administered on 28 August 2016 resulted in a medium rating. Of particular note was that since the previous assessment which was undertaken on 8 August 2012, and which resulted in a determination of a Medium-High risk level of general offending, there had been a positive change in the Protective factor score, to a significant extent. It was that change which was the most influential factor in the reduction of the rating.

3. [81]

   Ms Jeffress identified the following risks which she opined needed to be “managed/monitored” and which formed the basis of a suggested risk management plan of a kind which would form the basis of conditions which would be imposed by an ESO:

Dr John Albert Roberts

1. [82]

   Dr Roberts, a specialist psychiatrist, was appointed by the Court on the application of the State to prepare an expert report. Dr Roberts has provided a lengthy report making reference to a range of material with which he has been provided. He assessed Mr Tozer on 22 December 2016.

2. [83]

   In his review of literature dealing with difficulties inherent in the assessment process which he undertook, Dr Roberts noted that one of the described limitations is:

3. [84]

   I have not received a great deal of assistance from Dr Roberts’ report. His summary and opinion is to the following effect:

4. [85]

   Earlier in his report, Dr Roberts had referred to a “genetic predisposition” as being one related to the development of a psychiatric illness. The identified psychiatric illness was paranoid schizophrenia – with which Mr Tozer’s brother had been diagnosed. I do not read the use of the phrase “genetic predisposition” in the summary set out above, as referring to any other behavioural trait. I am unable from the contents of Dr Robert’s report to be satisfied that such genetic predisposition is relevant to an assessment of the likelihood of the commission of a serious violence offence.

Chelsea Dewson

1. [86]

   Ms Dewson, a qualified forensic psychologist, assessed Mr Tozer on 5 December 2016 and 8 December 2016. Ms Dewson administered a number of tests to Mr Tozer and also assessed his risk by reference to the Violence Risk Scale (“VRS”).

2. [87]

   Mr Tozer gave a more detailed history about his involvement with the Rebels Outlaw Motorcycle Gang than appears in any other documents provided to the Court. He told Ms Dewson the following:

3. [88]

   Further history provided by Mr Tozer is also of importance. He was asked about his present adjustment to living in the community. He told Ms Dewson this:

4. [89]

   Ms Dewson, having administered the relevant test, determined that Mr Tozer’s intellectual functioning was in the average range. As well, his verbal reasoning skills and general knowledge placed him in the average range, however he scored in the borderline range with respect to his non-verbal reasoning and visuo-construction.

5. [90]

   Ms Dewson went on to assess, by a number of mechanisms, the risk which Mr Tozer presents. She said this:

6. [91]

   I will be bear these reservations in mind.

7. [92]

   Ms Dewson considered the VRS with respect to Mr Tozer’s risk. The VRS is an actuarial risk measure which is utilised to identify static and dynamic risk as well as to highlight treatment targets based on criminogenic needs related to violence and to assess changes to levels of risk after participation in treatment.

8. [93]

   Ms Dewson formed the view, based on Mr Tozer’s VOTP summary report, along with his presentation at the interviews with her, that he presented a medium risk of violent reoffending based on his post-treatment assessment. She said that she noted that Mr Tozer’s risk of reoffending is similar to a group of offenders that had a violent recidivism rate of 34.5% after five years in the community.

9. [94]

   Ms Dewson then addressed particular questions which she had been asked by the State. With respect to diagnosable psychological conditions, Ms Dewson concluded that Mr Tozer met the diagnostic criteria for opioid use disorder which was seemingly in remission, in circumstances where Mr Tozer continued to be treated with Suboxone, an opioid substitute. She went on to express the view that Mr Tozer appears to have met the criteria for ADHD in his adolescence, but that he no longer experienced any related symptoms.

10. [95]

    She assessed Mr Tozer clinically as being at medium risk of violent reoffending. She identified the factors relating to that risk as being:

11. [96]

    She expressed the view that given Mr Tozer’s history of violent offending, it was her estimate that Mr Tozer was most likely to pose a risk of reoffending within the next one to two years whilst his new support network was still being formed.

12. [97]

    In terms of prognostication, she said this:

13. [98]

    Ms Dewson went on to opine that the dynamic risks of Mr Tozer reoffending could be managed in the community under an ESO. She said:

14. [99]

    Ms Dewson expressed the view that a period of two years would be a sufficient period to allow for further monitoring and containment pursuant to an ESO.

Threshold Question Supervised Violent Offender

1. [100]

   The first question which must be determined is whether, within the meaning s 5J of the Act, Mr Tozer is a supervised violent offender.

2. [101]

   It is conceded by Mr Tozer in his submissions that he falls within the definition of a violent offender.

3. [102]

   The proceedings were commenced on 27 September 2016, at which time Mr Tozer was on parole and under supervision for the offence of causing grievous bodily harm. That offence, which is contrary to s 33(1)(b) of the Crimes Act, falls within the definition of a serious violence offence in accordance with s 5A of the HRO Act.

4. [103]

   Accordingly, Mr Tozer was, at the time when the Summons was filed, a supervised violent offender, and the State was entitled to seek orders of the kind set out in the Summons with respect to him.

Gateway Question High Risk Violent Offender

1. [104]

   It is a second threshold or “gateway” matter for the State to establish that Mr Tozer is a high risk violent offender.

2. [105]

   Section 5E, referred to above, notes that an ESO with respect to a high risk violent offender can only be made by the Court “if and only if the offender is a high risk violent offender”. Given those words, in particular “if and only if …”, care must be taken by the Court in approaching this issue: Gallagher at [34].

3. [106]

   Mr Tozer conceded that the evidence before the Court established that there was a risk of his committing a further offence if he is not supervised. However, the defendant does not concede, and argues against a finding, that the State has demonstrated that he poses an unacceptable risk of committing a serious violence offence, let alone that this has been established to a high degree of probability.

4. [107]

   Mr Tozer’s criminal history shows that he committed the offence of manslaughter on 31 December 2002, which was a few months before his 18th birthday. This was a serious violence offence. He committed the Index offence of causing grievous bodily harm with intent to cause grievous bodily harm in March 2011, when he was almost 26 years old. The period of time between these two serious violence offences was about nine years. The offence which he committed during that time, of demanding money in company with menaces, whilst relevant in considering the various issues on this application, does not constitute a serious violence offence as that term is defined in the Act.

5. [108]

   Whilst in custody for the most recent serious violence offence, Mr Tozer faced a number of institutional charges which essentially related to drug usage and failing to undergo urinalysis. There is one charge of intimidation - the details of that charge are not before the Court. However, from what can be gleaned from the evidence, the conduct giving rise to the charge of intimidation would not constitute a serious violence within the meaning of the legislation.

6. [109]

   Actuarial tests administered prior to Mr Tozer’s undertaking the VOTP concluded that he was at high risk of reoffending. However, to simply rely upon this test result would place undue emphasis on the plaintiff’s past history and would not take adequate account of Mr Tozer’s present state. It is that state, at the time of hearing of these proceedings, to which the Court must have regard. There are a series of matters which are favourable to Mr Tozer which need to be considered in determining whether he is now a high risk violent offender.

7. [110]

   The first of these is that he undertook the VOTP, and successfully completed it in 2016. The purpose of that program is to assist participants in understanding the causes of their past conduct and provide them with mechanisms upon which they can rely to avoid engaging in violent conduct.

8. [111]

   Secondly, is that from the time, when Mr Tozer was transferred to the HRMCC in January 2014, his attitude and behaviour had changed significantly so that throughout his remaining time in custody and whilst on supervision, he has not been charged with any institutional or criminal offence. That a period of three years, Mr Tozer has not committed any institutional or criminal offences demonstrates a radical change for the better in his attitude and behaviour.

9. [112]

   Thirdly, Mr Tozer was released and successfully completed his parole. As well, he has successfully completed a period of being subject to an ISO. He has not breached the conditions of either his parole or the ISO in any way which has resulted in any action against him. On the contrary, the reports from those who have supervised him during that period indicate that he has generally been compliant with reporting and other conditions on the parole order and the ISO, and he has had good and open communications with the ISO team.

10. [113]

    Fourthly, after completing the VOTP, Mr Tozer’s risk of reoffending has been re-tested and it has been reduced. On the most recent VRS testing, he is regarded as falling in the medium range for violent reoffending.

11. [114]

    It is necessary to say something about this result. As indicated above, the VRS measures the risk of reoffending by reference to a cohort of offenders. By reference to that cohort, which it is said is sufficiently representative of Mr Tozer, statistics show that, putting it generally, two thirds of that group will not reoffend within five years of release, and about one third will. The test result does not enable this Court to draw a conclusion that Mr Tozer will fall into one or other of those majority or minority groups.

12. [115]

    Importantly, the offences which are recorded for that cohort of violent offences include offences which are not of sufficient seriousness to be classified as a serious violence offence in accordance with the HRO legislation. It necessarily follows that the risk of Mr Tozer committing an offence of serious violence is lower than the figure provided by the VRS test score of 34.5%, although it is not possible to say by how much that specific number may be reduced.

13. [116]

    Fifthly, there is evidence before the Court which it ought to accept, that Mr Tozer has ceased his association with members of the Rebel Outlaw Motorcycle Gang. His senior counsel tendered, without objection, a statutory declaration which he made in July 2015, which attested to the fact that he had “handed in his colours on 27 June 2015”. Mr Tozer gave as one of the reasons for this, “… my personal future plans”. Case note reports corroborate the fact that he had returned his colours and further, that he had not been observed associating with any OMCG member whilst in custody after that time. Compliance with conditions imposed on his parole order and under his ISO also confirm that he is no longer associating with any members of the Rebel OMCG.

14. [117]

    Sixthly, Mr Tozer has, to a significant extent, addressed his substance abuse which was identified, particularly in the report of Dr Parker, as an ongoing risk factor.

15. [118]

    The evidence demonstrates that at the time of the commission of the index offence, and the earlier offence of manslaughter, Mr Tozer was abusing alcohol and illegal substances. They were relevant to, and influential in, the commission of those offences, and in the surrounding circumstances.

16. [119]

    Whilst in custody for the index offence, and on parole for the first offence, when tested, it was clearly demonstrated that Mr Tozer was continuing to use illicit substances on a regular basis. However, since the start of 2014, testing has not produced any positive result for illicit substance use.

17. [120]

    There are two recent occasions when notes record that Mr Tozer has made admissions which raised concerns about his ongoing illicit substance use.

18. [121]

    On 28 November 2016, Mr Tozer admitted to his supervising officer that he had had a “joint”. That admission occurred in circumstances where, when Mr Tozer attended at the Blacktown Corrections Centre and was informed that the corrections officer was planning to drug test him (Mr Tozer), he volunteered that he had had a joint a couple of days ago. As well, Mr Tozer mentioned that he had had two alcoholic drinks some time back “… but did not like it and hasn’t had anything since”. Mr Tozer was directed by the community service officer to engage with alcohol and other drug (‘AOD’) counselling in the community and provided with a referral for him to do so.

19. [122]

    This admission was not regarded as sufficiently serious to be dealt with as a breach of Mr Tozer’s conditions of supervision.

20. [123]

    Pursuant to the direction which he was given, Mr Tozer obtained a referral for AOD counselling. On 9 November 2016, Mr Tozer reported to his supervisor that he had attended for AOD counselling but that there had been some difficulties with it.

21. [124]

    On 10 November 2016, Mr Tozer informed his supervisor that, he had also had “a couple of oxyies” – this is a reference to Oxycontin. The other contextual matter to which it is appropriate to refer with respect to this disclosure was that it occurred at a time when a court hearing was due regarding the imposition of a further ISO.

22. [125]

    Regular checks in November, December and early January did not reveal any further illicit substance abuse. It is important to note that there is no suggestion in any of the notes, or in any of the material put before the Court, that Mr Tozer has been imbibing alcohol on any occasion other than the two drinks to which he admitted. Given that in the past, his intake of some illicit drugs was associated with his alcohol intake, this ought be regarded as a positive factor in his favour.

23. [126]

    In weighing up this abstinence, although incomplete, from illicit substance use, it is appropriate to keep in mind that it has occurred during a period of supervision where Mr Tozer has been able to discuss with his supervisor the circumstances leading up to his substance use, and has had the ability to be counselled with respect to it. That is a relevant factor to keep in mind because the risk which the Court is obliged to assess is one of Mr Tozer committing a serious violence offence if he is not kept under supervision.

24. [127]

    The seventh factor which is relied upon by Mr Tozer is that he is in a relationship which can properly be described as a committed and caring one with a partner from whom he receives a good deal of support. Moreover, Mr Tozer points to the fact that he receives a good deal of support and encouragement from his partner’s family, and also from his mother.

25. [128]

    There is no suggestion that Mr Tozer’s current partner, nor her family, were known to Mr Tozer or formed part of any circle of friends and acquaintances at the time he committed the index offence, or at any earlier point in time.

26. [129]

    There is no doubt that a stable and committed relationship is a factor which bodes well for the future. It appears that Mr Tozer’s partner is well informed about his background, and his attempts to comply with various ISO conditions. She has attended a number of sessions between Mr Tozer and his supervisor. However, the Court had no evidence at all from Mr Tozer, or from his partner, which enabled it to assess directly, and in a confident fashion, the real strength of the relationship, and therefore its likely effect on Mr Tozer’s future. Whilst it is a matter which points positively for the future, it is not a matter upon which the Court can, in the absence of such evidence, place any great reliance.

27. [130]

    Ensuring the safety and protection of the community is the primary object of the HRO Act. In considering whether the State has satisfied the Court that the defendant Mr Tozer is a high risk violent offender, it is of the essence that the Court has regard to the objects of the HRO Act, because what it is doing is determining whether Mr Tozer poses an unacceptable risk of committing a serious violence offence if an ESO is not made.

28. [131]

    The material which has been canvassed certainly indicates, and it is accepted by Mr Tozer, that he is at risk of committing a further offence. But the objective of ensuring the protection of the community does not require the Court to make a decision which means that where any such risk occurs, an ESO must be made. On the contrary, it is only if the risk of committing a serious violence offence is unacceptable.

29. [132]

    Nevertheless, in coming to a conclusion, the safety and protection of the community remains the most important matter for consideration.

30. [133]

    The Court has taken into account, and relied upon, the material contained in the expert reports obtained by order of the Court and obtained as a consequence of other assessments. Each of these has been given weight. The report of Dr Roberts is not particularly helpful in the Court’s evaluation. However, the overall picture with which the Court has been presented is that when assessed at an early stage, Mr Tozer was considered by experts and by reference to actuarial or statistical assessments, as being at high risk of reoffending. More recently, prior to the completion of his custodial sentence, and by reason of courses which he has undertaken, Mr Tozer has been consistently assessed across a variety of statistical tests, and by the experts consulted, to be at a medium risk of reoffending for violent offences.

31. [134]

    This material has informed the Court’s assessment of whether or not it ought find Mr Tozer to be a high risk offender.

32. [135]

    There is no doubt that Mr Tozer can be managed reasonably and practicably in the community. What has been occurring in the last few months demonstrates this beyond argument. He has attempted to participate in AOD counselling, and has participated in courses of medication prescribed for him as a consequence of AOD counselling. As has earlier been noted, Mr Tozer has been generally compliant with the obligations imposed on him whilst on parole for the index offence, and whilst subject to interim ISOs.

33. [136]

    There is a dispute between the State and Mr Tozer’s counsel as to whether what is observed in his criminal history constitutes a pattern of offending behaviour. The extent of his criminal history has been earlier recounted. The difference in the nature of the offences, the lack of repetition of any one offence, or of any offences over time, and the sporadic nature of the offending leaves me to conclude that it is not correct to describe Mr Tozer’s past offending as a “pattern”. Nevertheless, full weight has to be given to his criminal history and each offence within it.

34. [137]

    Furthermore, I have had regard to the more dynamic factors which have been addressed above.

Discernment

1. [138]

   The task of deciding whether Mr Tozer is a high risk violent offender is an evaluative one which requires the Court to take account of all the material that has been placed before it. Then the Court asks whether it is satisfied to a high degree of probability that Mr Tozer poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

2. [139]

   As I have said earlier in State of NSW v Sancar [2016] NSWSC 867 at [75], the evaluative task, and a finding of unacceptability of risk, includes two necessarily predictive elements. The first is the likelihood that the risk will eventuate, and the second is the gravity of the risk. Harrison J said in State of NSW v Pacey [2015] NSWSC 1983 at [43], this:

3. [140]

   It is also necessary to observe that the task in which this Court is engaged , being an evaluative one about prediction of future risk, is a task upon which minds may differ. The Court can never be certain that an identified risk will come to fruition in the future, nor can it ever be certain that an identified risk will not come to fruition in the future. It has to make an evaluative decision based upon materials presently available about Mr Tozer’s future behaviour.

4. [141]

   Having regard to the past criminal history of Mr Tozer, the length of time he has spent in custody, his behaviour in custody and his recent significant changes in that behaviour, I can only conclude that his reintegration into the community will not be risk free.

5. [142]

   In that context, the HRO Act is not addressed to every possible act of violence which may be committed by an offender who is released into the community without supervision. It is concerned only with the commission of one or more serious violence offences. The statistical categorisation of Mr Tozer into a medium risk of reoffending, with respect to violent offences, does not without more, and of itself, support a conclusion that Mr Tozer poses an unacceptable risk of committing a serious violence offence.

6. [143]

   The words “unacceptable risk” carry their ordinary meaning in the context of the objects of the legislation, namely ensuring the safety and protection of the community.

7. [144]

   The statistically assessed level of risk, the opinions of the expert psychologists, and the opinions of other expert reports do not persuade me that Mr Tozer presents an unacceptable risk of committing a serious violence offence. When combined with the other positive factors to which reference has been made, I am not satisfied that such risk as exists of Mr Tozer committing a serious violence offence, ought be categorised as unacceptable. That evaluation depends upon the ordinary civil onus. When considering my conclusion by reference to the terms of the HRO Act, namely, that before finding Mr Tozer to be a high risk violent offender, I must be satisfied that Mr Tozer poses an unacceptable risk of committing a serious violence offence to a high degree of probability, I am wholly unpersuaded that the case put forward by the State meets such criteria.

8. [145]

   Accordingly, I conclude that the State has failed to satisfy me of the gateway requirement, namely, that Mr Tozer is a high risk violent offender. It follows that I am obliged to dismiss the application.

9. [146]

   In those circumstances, it is inappropriate to consider the other contested issues in the proceedings which relate to the conditions of the ESO, and the length of time it ought to be in place. Since any ESO is designed to address the risks of an individual, and to ameliorate those risks, where the gateway question is not answered favourably to the State, there is no adequate baseline to consider these issues.

Conclusion

1. [147]

   The State has failed to persuade the Court that Mr Tozer ought be found to be a high risk violent offender.

2. [148]

   It follows that the application for an ESO must be dismissed.

Orders

1. [149]

   I make the following orders:

   1. (1)

      Further Amended Summons filed 2 February 2017 is dismissed.

   2. (2)

      Order the plaintiff to pay the defendant’s costs.