State of New South Wales v SLD (Preliminary)

1. [1]

   By a summons filed on 28 February 2023, the State of New South Wales (the plaintiff) sought interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   Orders are sought for the appointment of two psychiatrists and/or psychologists to examine SLD (the defendant) and furnish their reports to the Court and directing the defendant to attend their examinations (ss 7(4) or 15(4)). The plaintiff sought an interim detention order (an IDO) for a period of 28 days from 22 April 2023 (ss 18A, 18C and 20(1)), which is the date of expiration of a continuing detention order (a CDO) to which he is presently subject. In the alternative, the plaintiff sought the imposition of an interim supervision order (an ISO) for the same period (ss 10A, 10C(1) and 11). Orders are also sought forbidding access to the court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. [3]

   The plaintiff seeks final orders that the defendant be the subject of a CDO for a period of 1 year (ss 5C and 17(1)(b)), followed by an extended supervision order (an ESO) for a period of 5 years (ss 5B and 9(1)(a)). As is usual when an ESO is sought, a schedule to the summons set out the proposed conditions of that order. In the alternative to the CDO, the plaintiff maintains the application for an ESO for a period of 5 years.

4. [4]

   The plaintiff amended its prayers at the hearing to seek only an ISO as an interim constraint upon the defendant. I was advised that a place is available for the defendant at a suitable location in the community from 17 April 2023.

The relevant statutory provisions and principles

1. [5]

   Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application pursuant to s 7(5) of the Act.

2. [6]

   Accordingly, although this is a preliminary hearing, it is necessary to evaluate whether the supporting material is sufficient to justify the making of an ESO, pursuant to the relevant statutory tests.

3. [7]

   Three prerequisites for the making of an ESO are required by s 5B of the Act. Section 5B, subs (a), (b) and (c), concern aspects of the defendant’s status as an inmate or supervised offender in the community. Those subsections are not contested, and I am independently satisfied that they have been met.

4. [8]

   This leaves the key provisions of ss 5B(d) and 10A(b) for consideration, namely, whether it appears to the Court that the matters alleged in the supporting documentation would, if proved, satisfy the Court:

5. [9]

   Section 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is “more likely than not” in order to determine that there is an “unacceptable risk” of the person committing such an offence.

6. [10]

   Section 9(3) of the Act sets out the matters the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that these matters are also relevant to an application for an ISO.

7. [11]

   Section 9(2) of the Act provides that, in determining whether to make an ESO “the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

8. [12]

   In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119, at [98], in relation to comparable provisions in an earlier version of the Act.

9. [13]

   As mentioned, the defendant accepts that the statutory preconditions for the making of an ESO (s 5B(a)-(c)) are satisfied. The defendant also accepts that the Court could be satisfied that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an ESO (ss 5B(d)).

The defendant’s background

1. [14]

   On 29 January 2001, when the defendant was aged 13 years and ten months, he crept out of the home of his adoptive parents in the early hours and broke into another residence nearby. He abducted a three-year-old child from her bed after removing her nappy and left her nightdress outside her home. He carried her to a concrete driveway where he stabbed her through the heart with a steak knife, covering her mouth as he did so to stifle her screams. He disposed of her body by concealing it in long grass nearby and arrived back home at 2:45am, when he was confronted by his parents. He told them he had been out walking. Later that day, his parents learned that a child in the area had gone missing during that night and notified police that the defendant had been in the area at the time. Police interviewed the defendant, who initially gave elaborate exculpatory accounts of his movements, including that he had seen the girl while he was out but did not know what had happened to her, before finally admitting the offence.

2. [15]

   The defendant pleaded guilty to the murder and was sentenced by Wood CJ at CL on 30 August 2002 to a term of imprisonment of 20 years with a non-parole period of ten years: R v SLD [2002] NSWSC 758. In the course of his judgment, his Honour noted the defendant’s attempts to mislead investigating police, his explanation for removing the victim’s clothing (to find a good place to stab her), his denial that he intended to sexually assault her and that he had given different explanations as to why he committed the offence. Wood CJ at CL noted that in the course of being interviewed by police:

3. [16]

   His Honour examined evidence of the defendant’s “bleak” background and upbringing, involving foster placements from the age of one, state wardship from the age of three and adoption when aged about six. He was allegedly sexually assaulted when aged ten by a person to whom he had felt an attachment. The defendant has an XYY chromosomal abnormality and a facial abnormality, which was diagnosed as Trigonocephaly, which exposed him to teasing.

4. [17]

   His Honour considered reports and evidence from two forensic psychiatrists (Dr Bruce Westmore and Dr Brent Waters) and two clinical psychologists (Peter Champion and Timothy Hannan), as well as other psychologists. The defendant’s level of intellectual functioning was determined by the psychologists to be in the borderline (Champion) and low average range (Hannan). The defendant had a history of disturbing behaviours involving fire-lighting and cruelty to animals.

5. [18]

   The psychiatrists were unable to come to definitive diagnoses of the defendant, because he was still in the developmental period of maturation. Wood CJ at CL noted:

6. [19]

   Similarly, his Honour noted, at [73], that Dr Westmore:

7. [20]

   Later, his Honour noted:

8. [21]

   His Honour concluded:

9. [22]

   The defendant was also charged with two offences that were alleged to have been committed the week before the index offence; namely, detain for advantage and cause injury to the victim (Crimes Act 1900 (NSW), s 90A, (since repealed), and aggravated indecent assault of a person under the age of 10 years (Crimes Act, s 61M, since repealed). It appears that those charges were dismissed in view of the proceedings for the offence of murder. The allegations were to the effect that, while staying at a holiday resort with his family, the defendant broke into a nearby holiday unit at night and woke and abducted a six-year-old girl using the ruse that her mother wanted to speak with her and was waiting outside. In a recorded interview, the girl said that the defendant pulled her away from the house. She cried and he tightly covered her mouth, saying she would die if she did not keep quiet. At one point, he “changed his face”. He agreed to take her home if she would “show my private”. She pulled down her pants and “he touched it” and then took her home.

10. [23]

    The defendant was asked about the incident immediately following his arrest for the index offence, while he was being conveyed to the police station in a police vehicle. In a statement that was tendered without objection in these proceedings, a detective said that when he asked the defendant about the incident, he replied: “it was a trial run”. He told the defendant that he understood that the girl said that during the incident he “changed his face”. The detective stated that the defendant lowered his head towards his lap, lifted it and turned towards the detective, who stated: “His eyebrows were raised and he was glaring at me. His face was strained. He had deliberately distorted his face”.

11. [24]

    In September 2003, the defendant was convicted of assault occasioning actual bodily harm, which he committed in Reiby Juvenile Justice Centre earlier that year when aged 16. The circumstances were that while he was alone with a female nurse in her office, receiving treatment, he suddenly put her in a tight headlock which caused her to hit a filing cabinet thus receiving an injury. Her screams alerted a person outside who, on entry, observed the defendant holding a metal instrument which was later found to be filed down so that it was sharper at one end. He was not charged separately in relation to that allegation. He received a control order for a period of 12 months.

12. [25]

    In October 2004, when aged 17, the defendant stabbed a Juvenile Justice worker in the neck and on his ear lobe with a pen while being restrained, following a threat by him to “stab the first boy that comes out of his room”. In 2006, he was sentenced to imprisonment for a period of 27 months with a non-parole period of 18 months, to be served concurrently with his murder sentence.

13. [26]

    In June 2011, when he was aged 24, while detained in Goulburn Correctional Centre, the defendant gave a lengthy letter to his then-treating psychologist in which he threatened to torture and kill him. He claimed to investigating police that it was written by an alter-ego named “Thorn”. He was charged with an offence of delivering a document with a threat, contrary to s 31(1) of the Crimes Act, to which he pleaded guilty. As a result of the incident, he was transferred into a segregation area of the prison.

14. [27]

    About seven weeks after that incident, when a prison officer slid a meal through a food hole at the bottom of his cell door, the defendant grabbed the officer’s wrist and slashed it, and his hand, with a razor that he had obtained by dismantling a disposable razor. The defendant threw it through the food hole and denied the offence, claiming that the officer may have cut himself on the door. The defendant was charged with recklessly wounding a law enforcement officer, other than a police officer, when in the execution of his duty, contrary to s 60A(3) of the Crimes Act. He was convicted following a trial by judge alone.

15. [28]

    For both offences the defendant received an overall sentence of 4 years and 5 months with an overall non-parole period of 2 years and 11 months, to commence on 28 October 2011. The sentencing judge found that the motive for the threatening document offence was unclear, but that it likely included a concern that matters the defendant had disclosed in confidence could embarrass him and jeopardise his prospects for parole. His motive for the reckless wound offence was directed to officers in the unit generally and his intention was to slash the hand of whichever officer happened to pass him food.

16. [29]

    In June 2019, the defendant was reclassified from A2 to a B classification, coinciding with his involvement in a program that provided a pathway to his participation in group programs. In October 2019, he commenced the Violent Offender Therapeutic Program (VOTP). His participation in the program was suspended in February 2020, due to intimidating behaviour by him towards a female staff member, and at his own request. In May 2020 there was another incident of intimidation of a female staff member and in June 2020 he refused a drug test. Consequently, he was reclassified back to A2.

17. [30]

    The defendant did not qualify for parole. The full term of his sentence expired on 28 January 2021. On 14 December 2020, Campbell J acceded to an application by the plaintiff for an IDO, which was subsequently extended: State of NSW v SLD (Preliminary) [2020] NSWSC 1803. On 22 April 2021, his Honour made a CDO for a period of two years which, as noted, expires on 22 April 2023: State of NSW v SLD (Final) [2021] NSWSC 409. Accordingly, the defendant has been in continuous custody for 22 years, since he was aged 13.

18. [31]

    In his preliminary and final judgments, Campbell J thoroughly considered the departmental and forensic material pertaining to the applicant’s pre-offence childhood and criminal behaviour; the circumstances of the index offence and the remarks on sentence of Wood CJ at CL; the defendant’s post-offence history in juvenile detention and in the adult prison system, including subsequent criminal offending; and more recent forensic psychological and psychiatric assessments of the defendant, particularly as to the level of risk that he posed of committing another serious offence if released into the community.

19. [32]

    His Honour noted that one of the court-appointed forensic experts, Dr Richard Furst, forensic psychiatrist, in a report dated 20 February 2021, assessed the defendant as having a Severe Personality Disorder with a combination of antisocial, borderline narcissistic features. In Dr Furst’s opinion, the defendant posed a high risk of committing a further serious offence of a violent and/or sexual nature, consequent to his Antisocial Personality Disorder with a contribution from the XYY syndrome. He did not believe that the defendant could be safely managed in the community.

20. [33]

    The other court-appointed expert, Dr Susan Pulman, a neuropsychologist and forensic psychologist, in a report dated 22 February 2021, concluded that the defendant had a Severe Personality Disorder of the antisocial type with psychopathic traits, including a lack of empathy. She assessed the defendant as being at a high risk of committing a further violent offence.

21. [34]

    Mr Samuel Ardasinski, a psychologist with Corrective Services, found that the defendant satisfied the criteria for a Psychopathic Personality Disorder and Anti-Social Personality Disorder, although he was reluctant to diagnose the defendant as having a personality disorder because of his youth when he came into custody and the effect of “his prison experience” on the development of his personality. Mr Ardasinski accepted that he was something of “an outlier” from the other forensic experts in that respect.

22. [35]

    Campbell J accepted the recommendation of Mr Ardasinski, Dr Furst and Dr Pulman that the defendant should resume the VOTP in spite of his resistance to it, although Dr Furst had reservations about its capacity to modify criminal behaviour. Mr Ardasinski was of the view that the program needed to take account of the defendant’s “unique characteristics” by being more flexible, which could be achieved by complementary sessions with an experienced clinician. Dr Pulman suggested that the defendant may require a one-on-one therapy program, although there were also benefits in group therapy. Campbell J stated, at [128]:

23. [36]

    In his final judgment, his Honour concluded that a CDO was necessary. His Honour explained:

24. [37]

    In a supplementary Risk Assessment Report dated 31 October 2022, Mr Ardasinski reported that the defendant had completed the VOTP, albeit with mixed success. He returned to the program on a one-on-one basis and engaged well with his VOTP therapist, although he reported finding it “useless”, saying he learned “absolutely nothing”. Mr Ardasinski concluded:

25. [38]

    Nevertheless, Mr Ardasinski advised:

26. [39]

    Mr Ardasinski referred to previous assessments of the defendant’s level of risk and did not undertake further assessments for his report, noting that it was unlikely to have changed significantly from his pre-CDO scores, so that in his opinion, the defendant remains in the highest category of risk for violence. He stated, extracting a quote from VOTP treatment notes:

27. [40]

    Mr Ardasinski recited a new set of possible risk scenarios that have been provided by the defendant’s treating VOTP therapist, with which he concurred:

28. [41]

    Mr Ardasinski considered the options of a CDO and ESO. He thought there would be “little therapeutic benefit” in another CDO. He said:

29. [42]

    And later:

Determination

1. [43]

   As noted, the defendant does not contest that it would be open to the Court to conclude, pursuant to s 7(4) and having regard to the test in s 5B(d) of the Act, that it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. I am so satisfied. It would be open to the Court at a final hearing to conclude that the defendant’s progress in the VOTP has not significantly reduced his level of risk of recommitting a serious offence, although no doubt that determination will be assisted by reports to be furnished by forensic experts.

2. [44]

   I note that The applicant has continued to give different explanations as to his motive for committing the index offence and deny that he sexually assaulted the girl or that he abducted her for that purpose. However, the various explanations he has provided over the years for having removed her clothing are, in my view, unconvincing.

3. [45]

   I turn then to consider the proposed conditions of an ISO.

4. [46]

   I am satisfied that the proposed conditions of an ISO are necessary. The defendant’s obsessive determination to seek sexual experience when he is returned to the community, although expressed to be in a lawful manner, is concerning. Perhaps unsurprisingly, since he has been in custody since he was aged 13, the defendant’s understanding of interpersonal relationships generally and sexual relationships in particular is naïve. There is a risk that he will become impatient with the necessarily limited degree of freedom that he will initially have and in due course frustrated by rejection by women he might seek to engage at a personal intimate level.

5. [47]

   The plaintiff has tendered recent Offender Integrated Management System (OIMS) reports that suggest that the defendant’s naivety also extends to other aspects of his expectations of what conditional release may bring. These include courses of education and pass-times that are quite unrealistic, at least in the initial stages of release. The process of reintegration into the community will be challenging for both the defendant, those who bear the responsibility of preparing him for engagement with others in the community and those charged with ensuring that he abides by conditions of the ISO. The defendant is unlikely to have the benefit of family support in the community. His mother resides interstate and he has no contact with his father, foster family or surviving siblings.

6. [48]

   The recent OIMS notes disclose that a degree of preparation of the defendant for release to the preferred place of accommodation in the community, in anticipation of this Court making an ISO, is under way. The nature of that preparation appears, in my view, to be appropriate and necessary.

7. [49]

   I am of the view that, in addition to the proposed conditions, the defendant should also be subject to “line of sight” supervision by at least one Corrective Services officer while outside the perimeter of his place of residence: see condition 10 of the conditions that are annexed to this judgment. While at first blush this condition may perhaps be thought to be unduly restrictive, it must be recalled that due to his prison classification, the defendant has not had the benefit of day-release, which would have familiarised him with the world outside the prison context. There is consequently a need to compensate for the absence of a gradual reintroduction of the defendant back into the community that would have occurred with a C classification. The condition is also appropriate in light of the significant risk posed by the defendant, and his history of sometimes resorting to selecting a random victim upon whom to take out his frustration against a class of persons using violence. The DSO may determine if, and when, the “line of sight” condition is relaxed and will have the authority to reimpose it, if required. The plaintiff has informed the Court that the restricted availability of departmental resources will likely limit the applicant to being in the broader community for a maximum of three hours per day and only on weekdays while line of sight supervision is required.

8. [50]

   I note that in the event the defendant is released into the community, Corrective Services has approved ongoing psychology sessions with Dr Parker and possibly other clinicians. I also note that his conditional release into the community will aid efforts being made on his behalf to obtain services through the National Disability Insurance Scheme (the NDIS).

Orders

1. [51]

   I make the following orders: