State of New South Wales v Grant Michaels (Final)

1. [1]

   The defendant, Grant Michaels (a pseudonym [1] ), is a 30-year-old First Nations man with a history of committing both violence and property offences. He is currently subject to an Interim Supervision Order (“ISO”) imposed by Walton J which commenced on 28 February 2025 [2] . It was subsequently extended and is set to expire on 25 April 2025.

2. [2]

   The plaintiff, the State of New South Wales, has brought proceedings against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) by way of summons filed on 12 September 2024. The plaintiff seeks final relief in the nature of a two-year Extended Supervision Order (“ESO”) subject to certain conditions. The conditions of the ESO proposed by the plaintiff are those that were sought before Walton J following the preliminary hearing, with the exception of conditions 6, 11 and 24. The making of the order is opposed by the defendant. Should the order be made, the defendant opposes the imposition of some of the conditions.

3. [3]

   On 18 February 2025, Walton J ordered the appointment of two experts to assess the defendant’s risk of reoffending and that they furnish their reports to the Court. In accordance with those orders, the following persons provided reports to the Court:

   1. (1)

      Professor Emeritus Susan Hayes, Forensic Psychologist, dated 23 March 2025; and

   2. (2)

      Dr Chelsey Dewson, Forensic Psychologist, dated 26 March 2025.

4. [4]

   The final hearing of the plaintiff’s application came before me on 17 April 2025. Ms Curry appeared for the plaintiff and Mr Bickford appeared for the defendant. I am grateful for their assistance.

5. [5]

   The following documentary material was read without objection:

   1. (1)

      On behalf of the plaintiff:

   2. (2)

      On behalf of the defendant:

6. [6]

   A Joint Statement of Agreed Facts, dated 14 April 2025, was also provided to the Court and Professor Hayes gave short additional evidence at the hearing and was briefly cross-examined.

7. [7]

   For the reasons that follow, I am satisfied that an ESO of two years should be made, subject to conditions. The conditions are set out in an annexure at the conclusion of these reasons.

Principal issues for determination

1. [8]

   The principal issues for determination by the Court are as follows:

   1. (1)

      whether an ESO should be made; and

   2. (2)

      if an ESO is made, the conditions which the Court considers appropriate as part of the ESO.

The statutory scheme

1. [9]

   As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of (relevantly) high risk violent offenders so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk violent offenders to undertake rehabilitation.

2. [10]

   The objects of the Act are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147].

3. [11]

   Section 5B of the Act specifies the circumstances in which the Court may make an ESO (often referred to as the “threshold requirements”):

4. [12]

   “Serious offence” is defined in s 4 of the Act as a serious sex offence or a serious violence offence. In this matter, the relevant type of serious offence is a serious violence offence. A “serious violence offence” is defined in s 5A of the Act, and relevantly includes a serious indictable offence that is constituted by a person engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person (s 5A(1)(a)).

5. [13]

   Section 5D of the Act provides that the Supreme 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. [14]

   The meaning of “unacceptable risk” is not defined in the Act and its meaning was considered by Beazley P of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51]:

7. [15]

   The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

8. [16]

   An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).

9. [17]

   The impact an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That factor, however, may be relevant to the exercise of the Court’s discretion pursuant to s 9 of the Act: Lynn at [44], [56]–[58] (Beazley P), [126]–[128] (Basten JA), [148] (Gleeson JA).

10. [18]

    In determining whether or not to make an ESO, s 9(2) of the Act provides that the safety of the community must be the paramount consideration of the Court.

11. [19]

    Section 9(3) of the Act sets out a list of factors which the Court “must also have regard to […] in addition to any other matter it considers relevant” in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d), and also to the exercise of the discretion in s 9 of the Act.

Threshold requirements

1. [20]

   It is conceded, and I find, that all statutory preconditions to the making of the ESO sought have been satisfied, other than the “unacceptable risk” precondition in s 5B(d) of the Act. That is:

Background

1. [21]

   The defendant experienced an unsettled and traumatic childhood, being an alleged victim of sexual and non-sexual abuse. As a juvenile, he witnessed the suicide of his girlfriend and the murder of his stepfather.

2. [22]

   The defendant has a history of substance abuse. He began using cannabis daily from the age of 14 and smoking ice daily from the age of 16, which escalated after his stepfather's murder.

3. [23]

   The defendant began offending from the age of 16, including property theft, affray, resist officer in execution of duty, common assault (DV), destroy or damage property, aggravated enter dwelling, aggravated break and enter and reckless grievous bodily harm in company.

4. [24]

   In 2011, when the defendant was 16, he was sentenced for affray, resist or hinder police officer in the execution of duty and use of offensive language. The defendant punched a payphone at a railway station, proceeded to have an argument with a male who he also punched, and was eventually apprehended by police. Following a plea of guilty, he was sentenced to a bond pursuant to s 33(1)(a)(ii) of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCP”).

5. [25]

   That same year, he pleaded guilty to and was sentenced for a common assault where he punched a female. He was sentenced to a bond pursuant to s 33(1)(e) of the CCP.

6. [26]

   In 2012, when the defendant was 17, the defendant pleaded guilty to, and was sentenced for, common assault and destroy property in relation to a dispute with his mother. During an argument, the defendant pushed his mother against a garage door and later smashed her phone. He was sentenced to a bond pursuant to s 33(1)(e) of the CCP.

7. [27]

   In 2012, the defendant pleaded guilty to, and was convicted of, resist officer in execution of duty and assault officer. The defendant refused to pay for chocolate at a store. Later, when he was told to move on from a carpark, the defendant was verbally abusive to police, shoved an officer in the chest and punched another in the forehead. He was sentenced to a combination of s 9 bonds under the Crimes (Sentencing Procedure) Act 1999 (NSW) and convictions without further penalty.

8. [28]

   In 2017, the defendant pleaded guilty to and was convicted of a number of offences, including recklessly causing grievous bodily harm in company (a “serious violence offence” according to the Act). He was sentenced in 2018. The offences were all committed as part of a break and enter where the defendant and two other offenders entered a house and assaulted two males, resulting in one of the victims sustaining extensive facial fractures (“the Claymore offence”). Judge O'Rourke found the objective seriousness of this offence to be in the mid-range. The defendant was sentenced to an aggregate sentence of five years’ imprisonment, expiring on 11 October 2021.

9. [29]

   In 2019, the defendant was convicted of another “serious violence offence”: causing grievous bodily harm with intent ("the index offence"). It occurred on 24 February 2017 while the defendant was in custody at Parklea Correctional Centre. On 30 August 2019, the defendant was sentenced for this offence to six years and six months’ imprisonment. The defendant pleaded guilty to the offence and the facts, as agreed, were as follows:

10. [30]

    The victim suffered severe traumatic brain injuries, including a seizure, skull and facial fractures, brain bleeding and ongoing seizures until at least November 2017 with anticonvulsant medication prescribed. The victim also had a skull cranioplasty operation performed in August 2017. When asked by another inmate why he assaulted the victim, the defendant replied: “just to fit in”. The sentencing judge, Buscombe DCJ, assessed the objective seriousness of the offence as falling within the mid-range of objective seriousness.

11. [31]

    The defendant was released into the community on 29 August 2024, initially residing in his mother’s home in Airds until around 5 November 2024. Between 5 November 2024 and 22 January 2025, the defendant resided in supported accommodation at Dignity Housing Leumeah, funded by Homes NSW. This accommodation was terminated due to late payment of rent.

12. [32]

    The defendant acquired a dog (first noted in the DSO records on 24 January 2025 and described as “a tiny puppy”). He was booked into the Banksia Motel from 28 February to 4 March 2025, but did not arrive until 1 March 2025, advising his Departmental Supervising Officer (“DSO”), Ms McCarthy, that he had “errands to do” prior to taking up the accommodation. On 4 March 2025, he declined an extension of accommodation at the Banksia Motel as he did not find the location convenient. Between 22 January and 28 February 2025, the defendant had reportedly been staying with friends or camping, including in a park behind Campbelltown Hospital and living out of a shopping trolley. On occasion, he was unable to use public transport because of the trolley.

13. [33]

    On 6 March 2025, during an interview at the Campbelltown Department of Communities and Justice (“DCJ”) Housing Office, the defendant became verbally abusive towards Homes NSW staff. He was asked to leave the premises and advised he would receive no further assistance from Homes NSW.

14. [34]

    Since being subject to the ISO from 28 February 2025, the DSO states that the ESO team has undertaken extensive efforts to assist the defendant with obtaining accommodation, including liaising extensively with Homes NSW to petition for accommodation for the defendant. The DSO states that Homes NSW report that their staff have fears for their safety due to the defendant being verbally abusive to them and have also referred to a conflict of interest between the defendant and a staff member in the Campbelltown Office. Efforts have continued, but Homes NSW indicated on 24 March 2025 that although the defendant’s details were with a team, and they were reviewing suitable properties, they had no stock.

15. [35]

    Various temporary emergency arrangements involving hotel or motel-type accommodation have been made, funded through the Communities and Justice Emergency Accommodation Fund. Efforts to assist him have been hampered by a number of factors including the defendant’s refusal of a referral to the National Disability Insurance Scheme by Homes NSW on 4 March 2025, by him having a dog, and his indication that he would not accept accommodation outside the Campbelltown area.

16. [36]

    The DSO has identified a number of problems with his supervision posed by the defendant’s current circumstances (as at 31 March 2025):

17. [37]

    The most recent notes provided by the ESO team indicate that the defendant was not living in the approved accommodation and was engaging with officers in an abusive and combative manner. As at 11 April 2025, there were problems with the defendant traveling to the approved accommodation as bus drivers would not let him get on a bus with his shopping trolley which contained all his belongings, and other transport options were difficult because of problems including expense, the trolley, the dog not being a registered support dog, and it not being transported in a secure carrier.

18. [38]

    As at 13 April 2025, the defendant was insisting that he was allowed to return to the Campbelltown Housing Office and that the DSO’s indication that he would be breaching his order if he went into the office was unreasonable. The DSO indicated to him that they would make enquiries of Homes NSW and advise the defendant of the outcome. At the hearing, it was confirmed that Homes NSW was still refusing to assist the defendant.

First matter for determination: Should an ESO be made?

1. [39]

   As noted above, this is an evaluative task. My satisfaction under s 5B(d) is a precondition to the exercise of the power in s 9 of the Act.

2. [40]

   Section 9(1) provides that I may determine the application either by making an ESO or dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO, the paramount consideration must be the safety of the community. The exercise under s 9 requires the exercise of a discretionary judgment, both as to whether such an order is to be made and to the nature of the supervision. A non-exhaustive list of matters I must consider is found in s 9(3). I may also have regard to “any other matter [I] consider relevant”.

3. [41]

   To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the tendered material. I now turn to those matters.

4. [42]

   After recounting the defendant’s criminal history, Professor Hayes referred to the Sealed Case Statement, dated 11 September 2024, which states that the defendant responded poorly to being in custody and has been involved in numerous violent altercations, with the most recent violent offence committed in February 2024. He had been segregated for assaulting fellow inmates and most recently for exposing his genitals to a female Corrective Services NSW (“CSNSW”) officer.

5. [43]

   Professor Hayes then helpfully undertook a review of the documentation provided to her (which has also been provided to the Court). Included in the material upon which she commented was the following:

6. [44]

   Professor Hayes also summarised the Serious Offenders Review Council Report of 17 May 2022, and the Pre-Release Anniversary Report, by Jenna Cosgrove, Community Corrections Officer of 25 May 2022. Both reports recommended parole was not appropriate. Reference was then made to the Pre-Release Anniversary report by Scott Abbott, Community Corrections Officer of 14 June 2023, which stated that the defendant said he did not wish to be considered for parole and refused five interview attempts. A parole order was not recommended. A further Pre-Release Anniversary Report by Bruce Pearce, Community Corrections Officer, of 15 May 2024, stated that the defendant expressed an intention to reside with his mother and act as her carer because of her ill-health. He noted that the defendant’s behaviour in custody continued to be poor. He noted there had been a slight shift in attitude with the defendant expressing a desire to have his parole granted, although still not addressing his violent offending behaviours.

7. [45]

   Professor Hayes had an appointment to interview the defendant on 6 March 2025, but it was rescheduled and took place on 10 March 2025. Professor Hayes described the defendant as uncooperative, surly and uncommunicative. He gave very little information about his family and life history details, answering many questions by saying “personal” and refusing to give any details. He was described as restless, making no eye contact and looking away from the desk, gazing at a wall clock most of the time. When asked if he wished to terminate the interview, he said he could not otherwise he would go to prison. Because of the lack of engagement, the interview ended after about 45 minutes.

8. [46]

   Professor Hayes then set out in her report the defendant’s background gleaned from other documents.

9. [47]

   As to his attitude to an ESO, the defendant stated he had “paid for the past”, wanted to be left alone and wanted to go back to his life. He stated he was not using alcohol or drugs and had not offended since his release. The defendant said he could not say that he would not reoffend, but he was planning not to.

10. [48]

    The defendant maintained that he was independent in activities of daily living. He had his own friends but did not like strangers or crowds. He said that he “hardly ever” lost his temper, although would get upset over some forms of criticism. He was not intending to get employment.

11. [49]

    Professor Hayes noted that the defendant was receiving a Disability Support Pension for the conditions of Attention Deficit Disorder, Oppositional Defiance Disorder and high-functioning Autism Spectrum Disorder (formerly borderline Asperger’s). He was noted to be suffering with complex PTSD, severe depression, anxiety and paranoia, and was medicated with Avanza. Professor Hayes stated that he “demonstrated lack of insight into his psychological functioning and the consequences of his actions.”

12. [50]

    The defendant told Professor Hayes that he was not consuming alcohol or drugs currently. In evidence before this Court, Professor Hayes was asked to assume that the defendant had admitted to two relapses. Professor Hayes said that went to the defendant’s honesty and showed he could relapse.

13. [51]

    Professor Hayes found that the defendant expressed no remorse or victim empathy stating, “it’s over, done”; “it was over a decade ago; I’ve paid my time”.

14. [52]

    Professor Hayes concluded that the defendant’s psychiatric and psychological conditions contribute to his risk of committing a serious violence offence. His risk is increased if he returns to substance abuse or is unmedicated for his other psychiatric conditions. She opined that the conditions of borderline personality disorder and paranoia contribute to his risk of committing a serious violence offence, because BPD is characterised by explosive outbursts, difficulty controlling anger, impulsive, risky behaviour, periods of stress-related paranoia, mood swings, and low self-esteem.

15. [53]

    Professor Hayes acknowledged the limitations of risk appraisal. She noted the defendant’s risk factors, based upon her reviewing all the material as well as her interview with him, including his psychiatric diagnoses, treatment resistance, lack of empathy, lack of cooperation with supervision and programs, lack of personal insight into his psychological functioning, history of violence, and superficial engagement with professional staff. She noted that his violent attitudes, lack of victim empathy, lack of insight into his own risk factors and psychological instability needed to be addressed if his risk was to be reduced. Professor Hayes was of the view that in order to reduce the defendant’s risk of committing a further serious violence offence, a comprehensive treatment plan needed to be developed and adhered to by all professionals engaged in supporting him. His transient living situation needed to be addressed and through psychological/psychiatric counselling, his stress and coping mechanisms needed to be addressed and reinforced.

16. [54]

    Professor Hayes administered the Historical Clinical Risk Management-20 Version 3 (HCR-20V3) which contained 10 static and 10 dynamic risk factors. She stated a recent review of research conducted indicated the reliability to be satisfactory, concurrent validity was good, and there was good predictive validity. The defendant scored highly (close to the maximum scores) on historical items related to violence, clinical scales (assessing recent problems) and risk management, indicative of future problems, such as non-compliance with treatment or supervision, stress or coping mechanisms, living situation, and non-compliance with professional services and plans, potentially involving immediate and comprehensive actions. Professor Hayes concluded that on the basis of these results and other risk assessments conducted previously, assessment of the defendant’s risk of committing a further serious violence offence is high.

17. [55]

    Although (apart from two relapses) he had been abstinent from drugs and alcohol for two years, and he had not committed a serious violence offence since his release from custody, she opined that his change would be slow and incremental. Professor Hayes stated that the defendant’s risk [of committing a further “serious violence offence”] could not be managed without an ESO being imposed. Professor Hayes also opined that an ESO of two years, with the conditions sought by the plaintiff, was appropriate.

18. [56]

    Dr Dewson conducted two virtual interviews with the defendant on 12 and 21 March 2025, during which she conducted a semi-structured interview and psychometric testing. Dr Dewson noted that in the first interview, the defendant was difficult to interview. He had his dog with him, which at times distracted him. He acknowledged he was highly anxious and declined to participate in psychometric testing on the first occasion, although he participated (at least, superficially) on the second occasion.

19. [57]

    Dr Dewson stated that the testing suggested the defendant may lack insight into areas of difficulty in his life; that he was motivated to highlight his psychological distress, while being careful not to endorse items associated with violence or aggression. She detected some validity issues. They were not sufficient to invalidate his profiles, but she interpreted the test results with caution.

20. [58]

    Dr Dewson concluded that the defendant likely meets the diagnostic criteria for PTSD, Substance Use Disorder (in early remission, on maintenance therapy) and Major Depressive Disorder – with anxiety. Whilst Dr Dewson was not aware of the defendant’s “admission” that he used “ice” approximately two weeks before, the defendant stated at interview that he “use[s] every now and then, as long as it’s not an addiction”.

21. [59]

    The defendant scored “extremely severe” for anxiety and depression on the Depression, Anxiety and Stress Scale (“DASS”), and in the normal range for stress.

22. [60]

    On the Personality Assessment Inventory (“PAI”), the defendant’s results indicated a broad range of clinical features, including but not limited to, significant tension, unhappiness and pessimism; as well as anxiety and, in particular, anxiety associated with a trauma history.

23. [61]

    As to the defendant’s risk profile, the defendant was assessed as posing a very high risk of general offending. There was no indication, according to the Spousal Assault Risk Assessment Guide, that he was at acute risk of perpetrating domestic violence. On the Violence Risk Scale, the defendant was assessed as Level V – Well Above Average risk and is considered untreated, needing both high-level intervention and supervision.

24. [62]

    Dr Dewson noted protective factors including completion of EQUIPS aggression and addictions, the support of his mother, his positive rapport with his private psychologist, taking responsibility for some of his offending, and that he had remained in the community since being released on parole.

25. [63]

    Dr Dewson considered the defendant’s responses about recent and future drug use to be ambiguous. She opined that any illicit drug use or abuse of prescription medication would be highly problematic given the defendant’s past substance abuse has been associated with his offending.

26. [64]

    Dr Dewson considered the defendant’s insight into his offending as low. She described the defendant’s overall conduct in custody as “disrespectful, antisocial, dysregulated and violent”.

27. [65]

    Dr Dewson noted the defendant’s more promising response to supervision since being released from custody under the supervision of Community Corrections but also noted his unwillingness to be made subject to an ESO. His inability to perceive any need or benefit of an ESO was indicative of insight deficits.

28. [66]

    Dr Dewson opined that the most likely risk scenario would involve an unplanned offence in the absence of a weapon. Makeshift weapons found around him could be used, in the context of him feeling overpowered, but this is less likely. She noted the defendant has demonstrated a capacity to inflict serious violence in the absence of a weapon. She was of the view that violent offending will likely occur in the context of substance abuse and/or emotional dysregulation.

29. [67]

    Whilst noting both the limits of risk assessment, and also her legal expertise, Dr Dewson opined that future violent offending by the defendant could meet the threshold for a serious violent offence, as defined by the Act.

30. [68]

    Dr Dewson was also of the view that an ESO of two years was appropriate.

31. [69]

    Dr Richard Parker prepared the Risk Assessment Report, dated 27 February 2024, as helpfully summarised by Professor Hayes above at [43(c)] above. Dr Parker observed that the most likely route to future violence would be a relapse into chronic substance abuse. He would be motivated to acquire money to purchase drugs (increasing the chances of instrumental violence) but would also be more likely to associate with people who will elicit feelings of anger, leading to expressive violence.

32. [70]

    As noted above, Krishna Iyer from the Metropolitan Extended Supervision Team completed a Risk Management Report in April 2024. The report noted that the defendant had maintained regular contact with family but had no other social supports in the community.

33. [71]

    The ESO risk management plan included at least once per week face-to-face contact with NSWCC, at least monthly home visits, with face-to-face contact to include motivational interviewing and behavioural change exercises, including managing high risk situations. Announced and unannounced field visits were proposed, including in community settings. Third party contact would be made on a weekly basis to monitor attendance and engagement in interventions.

34. [72]

    Recommended conditions of supervision were set out.

35. [73]

    The defendant had variously agreed to participate and then rejected offers to participate in the VOTP, between September 2019 and October 2023, and notably had ultimately refused all offers despite sometimes expressing a willingness to take part. In late 2021 he completed the EQUIPS Aggression and Addiction programs. These are of lesser intensity and duration than the VOTP and, as noted above, Dr Dewson described the defendant as an “untreated violent offender”. She observed that the programs completed thus far are not commensurate with his assessed level of risk and need and were an insufficient level of intervention.

36. [74]

    The defendant had refused to engage with CSNSW psychological services as recorded in the 2019 Pre-release Report. This attitude appears to be persisted through to April 2024.

37. [75]

    In 2019, the defendant claimed to have gone “cold turkey” in relation to drug use and was unwilling to undertake any drug and alcohol treatment. In 2022, a Pre-release Report noted that while the defendant had insight into aggression, he struggled to implement strategies for high-risk situations. In February 2024, the defendant claimed to understand the causes of his offending and stated that no programs were necessary as the reasons for his offending behaviour had been addressed. He expressed a similar view in September 2024, denying that aggression was a risk factor.

38. [76]

    The plaintiff submits this shows little insight into the risk that the defendant poses of future aggression, including a serious violence offence.

39. [77]

    In April 2024, the defendant informed a drug and alcohol worker in custody that the prescribed Buvidal 96mg was “only holding” for two weeks and that he had started injecting 1mg of a “strip” after two weeks. He reported “feeling stressed out that he is craving and getting irritable”. He stated that the drug held off cravings for three months then the cravings started.

40. [78]

    As noted, the defendant has been seeing Mr Hudd, psychologist, including whilst subject to parole. He started a buprenorphine program in the second half of 2024. On 27 February 2025, the defendant advised his DSO that he was addressing his substance use and childhood trauma with Mr Hudd, but not his anger/aggression as Mr Hudd did not believe he was an aggressive person. This focus on childhood trauma has been confirmed by a letter from Mr Hudd, dated 15 April 2025. Mr Hudd stated in part: “Since his release, our focus has been largely on leaving prison, returning to society, his mental health in general and childhood trauma”. Mr Hudd also confirmed he would be prepared to continue to treat the defendant on a fortnightly basis as he has done since July 2014.

41. [79]

    It is clear that each expert who opined on the issue was of the view that the defendant would require further treatment in relation to aggression and substance abuse to mitigate his risk of further serious violent offending. That treatment would be by way of psychological and/or psychiatric treatment, and medication. Regular interventions may mean ultimately that the defendant’s risk of committing a further serious violence offence would ultimately decrease, and conversely a lack of cooperation on the part of the defendant would increase risk.

42. [80]

    Prior to his incarceration in 2016, the defendant was subject to community supervision on two occasions. A 2019 Pre-Release Report observed that “whilst [the defendant] appeared to be compliant with reporting obligations, he was subject to breach action due to re-offence”.

43. [81]

    In order to determine the likelihood of the defendant complying with an ESO, the whole of the defendant’s circumstances must be considered, including his progress after release on parole, his compliance with the conditions of the ISO, and his stated intentions. In March 2024, the defendant expressed a preparedness to be subject to an ESO but stated a reluctance to engage in programs. On 11 September 2024, he stated he considered an ESO to be an “injustice”. On 20 September 2024, the defendant repeated an earlier view that he had learned everything he needed to deal with aggression. On 31 January 2025, the defendant said that if any ESO was imposed he would refuse additional community supervision “and tell them he would rather return to gaol”, as he had “done his time”, has not reoffended in the community and such an imposition would be “unjust”. A similar sentiment was expressed on 24 February 2025, and he stated his concerns about the ESO team invading his privacy. On 27 February 2025, the defendant told his DSO that he would not engage in any programs as he was not violent and had engaged in programs in custody and would not do any more. He also stated though he was “prepared to do what he could” to work with his DSO but would not agree for his DSO to have contact with his community psychologist or attend any programs. On 6 March 2025 (the same day he was banned from Homes NSW at Campbelltown), he stated that if an ESO was imposed he would “do a runner and fight it in the High Court”. He told both the court appointed experts that he would not comply with an ESO and would appeal the decision.

44. [82]

    I note, however, that despite his stated intention in relation to the imposition of an ESO, he has continued to engage with his DSO under the ISO. The DSO has afforded him flexibility and leniency in relation to his adherence to the conditions of the ISO and has continued to help him with obtaining housing. The defendant has also attended appointments with the experts. This continued engagement, albeit not enthusiastic, gives some indication that he is prepared to engage, to an extent, with his supervision.

45. [83]

    The defendant’s criminal history and pattern of offending behaviour has been canvassed above.

46. [84]

    Judge Buscombe noted at the time of sentencing for the index offence in 2019, the defendant had spent a great part of his adult life in custody. Judge Buscombe was satisfied that the defendant had a socially deprived and in part a traumatic upbringing, and his Honour considered it likely he was on the verge of institutionalisation. His Honour stated the defendant would clearly “need close supervision when ultimately released to the community.”

47. [85]

    The plaintiff pointed to eight factors as to why the Court should be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision.

    1. (1)

       The defendant’s history of violent offending which has escalated in severity and frequency. The two most recent and serious types of offending occurred both in the community and in custody.

    2. (2)

       He continued to be violent in custody, with over 60 entries for institutional misconduct. Some of the most recent violent incidents took place in November 2023 and February 2024.

    3. (3)

       Although the defendant claims to understand his triggers for violence, he displays little insight into the paucity of his mechanisms for mitigating risk. Dr Parker stated that his “restraints against escalation to serious offending are fairly weak”.

    4. (4)

       The defendant has consistently refused to complete VOTP treatment for violent offending and maintains that no rehabilitation or treatment is needed for longstanding and chronic substance abuse, with Dr Dewson describing the defendant as “untreated”. Although he has returned negative drug test results, he has disclosed cannabis and ice use to his Community Corrections Officer on 20 December 2024 and ice use to his DSO on 6 March 2025.

    5. (5)

       The defendant has been assessed as being at a high risk of further violent offending and substance abuse has been identified as heightening the risk. Risk factors of both substance use and housing instability appear to be current issues for the defendant.

    6. (6)

       Both court appointed experts opine that the defendant poses a risk of committing a further serious violence offence, and if the defendant returned to alcohol or illicit substance use, the risk would be high.

    7. (7)

       The defendant has been described as almost institutionalised. Given the minimal time he has spent in the community, the Court could not draw a conclusion that he is able to appropriately manage and reduce the relevant risk factors below a level acceptable to the Court.

    8. (8)

       The defendant has a long history of antisocial behaviour and associations. Some of his offences have been committed in company, and he has shown a preparedness to possess weapons. Outside his family, the defendant has no pro-social connections.

48. [86]

    In short, it is submitted that the Court would have no confidence that the defendant has sufficiently turned his life around such that the relevant risk has been ameliorated.

49. [87]

    The defendant argues that the index offence, whilst indisputably serious, was committed many years ago, when the defendant was 22, and he is now 30. The environment in which it was committed is notable, being in custody, and done “just to fit in”. He stated to Dr Dewson that fights happen in goal. He said, “I just walk away in the community; I can’t do that here”.

50. [88]

    Whilst there are many institutional infractions, none have risen to the level of a serious violence offence, and there are no further convictions for violence since the index offence.

51. [89]

    The defendant contends that during his time on parole and on the ISO, he has not breached any of those orders.

52. [90]

    It is conceded that the defendant has expressed problematic attitudes regarding the prospect of an ESO but that does not mean it should nevertheless be imposed. That would subvert the test and the onus.

53. [91]

    As to the eight factors relied upon by the plaintiff, the defendant notes the following:

    1. (1)

       The violent offending occurred when the defendant was in his early twenties, and the index offence occurred in the peculiar circumstances of custody. Despite remaining in custody, no further serious violence offences occurred.

    2. (2)

       The defendant’s misconduct in custody has not continued beyond his release.

    3. (3)

       Although the defendant has limited insight into his psychological profile, he nonetheless remains connected to treatment with his long-term psychologist.

    4. (4)

       His failure to complete VOTP does not elevate his risk and he has returned numerous negative tests for substances.

    5. (5)

       The defendant was last in the community when he was aged just 21 years old. The substantial effluxion of time since then is significant.

    6. (6)

       The defendant contends that Dr Dewson’s opinion was more qualified than that of Professor Hayes as to the risk posed by the defendant, and the Court should determine the matter for itself.

    7. (7)

       Even if the defendant is almost institutionalised, that does not elevate the risk of a further serious offence to an unacceptable level.

    8. (8)

       The defendant does not have to establish that he has sufficiently turned his life around in order to avoid the imposition of an ESO.

54. [92]

    In short, the defendant submits that while he has experienced periods of homelessness and has expressed some reluctance about his obligations under the ISO, he remains compliant. The defendant argues that there have been no further violence offences or any other offences that might suggest a tendency to resort to violence.

The ESO should be made

1. [93]

   I have already found that the matters in s 5B(a)–(c) of the Act are satisfied.

2. [94]

   As to s 5B(d), I acknowledge that the issue is not whether there is a risk that the defendant will commit a further offence or offences. The Act is not concerned with general reoffending, or even violent offending that is not within the definition of a serious violence offence. I also acknowledge, as did the court appointed experts, that there are limitations with the risk assessments.

3. [95]

   Taking into account all the evidence and the arguments from both parties, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision.

4. [96]

   The evidence shows that the defendant has minimal insight into his past offending, or the associated risk factors. He has very limited plans to manage his risk factors in the community and his already compromised ability to cope with stressors is negatively impacted by his temporary accommodation arrangements. He has very limited social connections and has engaged in recent drug use. Although he continues to undertake psychological treatment with Mr Hudd as he has done since 2013, that alone would appear to be of little protective value given his two serious violence offences occurred during the course of receiving that therapy. Even though there are some signs of improvement in the defendant’s behaviour since his release from custody, there are also indications that his maladaptive and sometime volatile behaviours continue to undermine his ability to successfully negotiate life in the community. Homes NSW’s refusal to assist him, which has come about through his behaviour towards their staff, not only shows his antisocial behaviour under stress, but also contributes to his ongoing housing difficulties which in turn contributes to his risk of relevant offending.

5. [97]

   The defendant has also been in the community for a limited amount of time. Even though the defendant pointed to the lack of any breach action taken against him since being in the community, this is not necessarily because he has not breached his ISO conditions, but rather more likely because of the flexibility and forbearance shown by the ESO team.

6. [98]

   In summary, in my view, the day-to-day stress of the defendant’s current living arrangements, his lack of insight and remorse leading him to resist appropriate therapy, and his past resort to substance abuse and violence, together with his recent drug use, satisfy me to a high degree of probability that unless supervised, the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision.

7. [99]

   The s 5B threshold provision is therefore satisfied. Further, on the basis of the matters identified above, I am of the view that pursuant to s 9 of the Act, I should make an ESO, subject to conditions.

8. [100]

   Both experts opined that two years was appropriate, and the defendant does not contend to the contrary. I am of the view that a period of two years is an appropriate length for the ESO.

Second matter for determination: Appropriate conditions

1. [101]

   Section 11(1) of the Act provides that an ESO may direct an offender to comply with such conditions as the Court considers appropriate and sets out a non-exhaustive list of potential conditions. Section 11(2) mandates the inclusion of a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

2. [102]

   In determining what is “appropriate”, it is accepted that the discretion is broad but must be exercised having regard to the scope and purpose of the Act and its objects: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [47] (per the Court). At [53], the Court further stated:

3. [103]

   The determination of appropriate conditions is a balancing exercise “in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective”: Lynn at [129]. It is accepted that this step engages a balancing exercise involving possible intrusions on the offender’s liberty and privacy: Lynn at [130]. It must also be borne in mind that a failure by a person to comply with the requirements of an ESO is an offence pursuant to s 12 of the Act and is punishable by a fine, imprisonment, or both.

4. [104]

   The conditions contended by the plaintiff as appropriate for the ESO are the same as those sought before Walton J (other than conditions 6, 11 and 24). Noting the primary position of the defendant was that the ESO should not be imposed, the defendant does not oppose the making of many of the proposed conditions, in particular conditions 1, 2, 3, 4, 5, 10, 12, 13, 17, 18, 19, 20, 22, 23, 25, 26, 30, 31, 33, 34, 39, 40, 41, 42, 43, 44 and 45.

5. [105]

   I note that a number of conditions not pressed before me accorded with some of those deleted by Walton J, namely 7, 8, 9, 28, 29, 32, 35, 36.

6. [106]

   In addition, the defendant does not oppose the making of conditions 37 and 46 in the revised form proposed by the plaintiff, and condition 21 is not pressed if the electronic monitoring condition is made.

7. [107]

   Based on the material I have considered, and in accordance with the principles set out above, I am satisfied that those uncontested conditions are appropriate.

8. [108]

   Some of the remaining proposed conditions are opposed entirely, some in part, or alternative wording is suggested. I am grateful for the sensible approach taken by the defendant to confine the argument to those conditions or parts of conditions which are in contention.

9. [109]

   The plaintiff contends that electronic monitoring allows regular audits to be conducted to identify any concerning patterns in the defendant’s behaviour that may be relevant to risk factors or scenarios. Further, given the defendant’s recent housing instability, and its link with an increase in high-risk behaviour, electronic monitoring is essential to know the defendant’s movements or whereabouts at any given time.

10. [110]

    The defendant contends that there is no evidence that the defendant has frequented high risk locations whilst subject to the ISO. Further, it is submitted that the defendant continues to maintain a line of contact with his DSO and has attended upon appointments when called upon to do so. The defendant submits that electronic monitoring is not justified on the evidence.

11. [111]

    In response, the plaintiff draws attention to the wording “as directed” and that the condition would be applied in accordance with the four stages of electronic monitoring. Issues in supervision have arisen, and when the defendant is homeless, the ESO team often do not know where he is, with whom he is associating or what he is doing. He maintains a guarded and evasive response when asked about these issues by his DSO. The DSO has no ability to conduct unannounced visits to observe what the plaintiff is doing, or with whom he is associating, and this must be seen in light of the defendant’s admissions to associating with negative peers and drug use.

12. [112]

    In my view, this condition should be imposed for the reasons set out by the plaintiff. With the defendant’s unstable living arrangements and the established difficulty of the ESO team in monitoring the defendant under the ISO, it is clearly an appropriate condition.

13. [113]

    As I will impose this condition, as noted, proposed condition 21 is not pressed.

14. [114]

    I note that there has been a genuine attempt by the plaintiff to craft a workable curfew condition. The plaintiff contends that a curfew condition contributes to providing structure and stability for the defendant and works in conjunction with the use of electronic monitoring.

15. [115]

    The defendant submits that in the absence of serious offending for over eight years and no offending during the eight months in the community, there is little evidence the defendant presents an increased risk of committing a serious offence between the hours of 9pm and 6am.

16. [116]

    In response, the plaintiff notes the inbuilt flexibility of the condition, and although no offence was committed between the proposed curfew times, the Claymore offence was committed at 8pm.

17. [117]

    I am of the view that the defendant’s current housing instability, which is likely to continue for some time, renders the purported structure provided by a curfew condition nugatory. I am also of the view that the past pattern of offending, together with his recent conduct, does not justify the imposition of a curfew. I decline to impose this condition.

18. [118]

    The plaintiff presses for this condition because it facilitates monitoring of the defendant’s intended visitors so that risk assessments can be conducted prior to their arrival.

19. [119]

    The defendant notes the terms of condition 13 (which he originally opposed but ultimately did not dispute) reads “You must not spend the night anywhere other than your approved address or any alternative approved addresses unless you notify the DSO of your stay at a different location, including the address and who you stayed with, within 48 hours afterwards.” Further, it is submitted that the condition is broad and difficult to manage and that it would be difficult to identify people who may be around the places in which he is able to stay.

20. [120]

    I am of the view that given his current unstable living arrangements, which include hotels, motels, caravan parks, camping sites, and potentially boarding houses, often obtained at very short notice, it would be very difficult for the defendant to comply with condition 14, and to impose it would be setting him up to fail. I am satisfied that condition 13, along with the condition that provides for drug testing, and the electronic monitoring condition, provides a DSO with a sufficient ability to monitor the defendant’s associates and provides some oversight in a realistic fashion. I decline to impose proposed condition 14.

21. [121]

    I decline to impose proposed condition 15 essentially for the same reasons I declined to impose proposed condition 14.

22. [122]

    Given this is relevant to proposed conditions 14 and 15 which I have declined to impose, it follows that I decline to impose proposed condition 16.

23. [123]

    The revised version of the proposed condition was still opposed by the defendant (the previous version of the condition involving the need for prior approval).

24. [124]

    The plaintiff contended the condition would mitigate the risk of reoffending in light of the history of poly-substance abuse and also pointed to the use of alcohol and illicit substances in relation to the Claymore offending. This was appropriate especially given the defendant is not subject to a schedule of movements. The close monitoring of the defendant at such a venue might prompt a discussion with the DSO the following morning or perhaps a reminder at the time that he should not drink or ingest illicit substances.

25. [125]

    The defendant objected to this condition on the basis that the defendant had already demonstrated an ability to attend licensed premises without resorting to excessive or problematic alcohol use. Alcohol misuse was not identified by the experts as a risk factor, and nor was it involved in the index offence.

26. [126]

    In my view, given the lack of any proven current problem with alcohol, rather than prior approval being required, the monitoring of the defendant could be adequately managed by the defendant reporting to his DSO within 48 hours of attending such a location. This would allow a discussion to occur, if required. Again, this condition be viewed in the context of the drug and alcohol testing available to the DSO, together with the electronic monitoring. Accordingly, I will impose condition 24 in the following terms:

27. [127]

    The defendant only opposes the imposition of paragraph (a) of proposed condition 27.

28. [128]

    The plaintiff contends that the condition prohibits the defendant’s association with specific individuals that may increase his risk of reoffending.

29. [129]

    The defendant contends that this part of the condition is impractical to monitor and/or enforce and could unnecessarily lead to a criminal penalty.

30. [130]

    In response, the plaintiff points to the practical guidance in relation to the identical condition under the ISO which has already been provided to the defendant by the DSO in the following terms (recorded by Ms McCarthy in notes dated 27 February 2025):

31. [131]

    Given the defendant’s drug abuse issues and the risk which flows, I am satisfied that this condition is appropriate, and that the defendant will be provided with adequate practical guidance to comply with it. Accordingly, I will impose Condition 27 in the terms sought by the plaintiff.

32. [132]

    This is pressed by the plaintiff as facilitating general monitoring of the defendant and the capacity to easily identify the defendant in the community. The presence of multiple supervising officers is pointed to as a reason for a need to easily identify the defendant, as is an ability to monitor financial affairs.

33. [133]

    I agree with the defendant’s submissions opposing the imposition of this condition, especially in light of condition 37 being imposed (which relates to allowing a DSO to photograph the defendant if he significantly changes his appearance). There is no suggestion that the defendant has ever been involved in fraudulent activities whereby he may access false identification or open bank accounts in false names, and there is otherwise sufficient material for day-to-day identification. I decline to impose this condition.

Orders

1. [134]

   The orders I make are as follows:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of two years commencing on 25 April 2025.

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant comply with the conditions set out in the Schedule annexed to this judgment for the period of the extended supervision order.