State of New South Wales v Mackney (Final)

1. [1]

   HIS HONOUR: By an amended summons filed on 30 August 2024, the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) for a period of three years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of the defendant. An interim supervision order (ISO) and certain other preliminary orders were made by Harrison CJ at CL on 18 June 2024 pursuant to the original summons: State of New South Wales v Mackney [2024] NSWSC 719.

2. [2]

   The defendant accepts that the statutory preconditions for the making of an ESO are established and does not oppose the application (indeed he supports the application), thus accepting that it is open to the Court to be independently satisfied that he poses an unacceptable risk of committing a serious offence, if not kept under supervision. The defendant takes issue with the proposed length of the ESO, submitting that the appropriate length is no more than two years, and with two of the proposed conditions. His current status is that he is bail refused on assault and hinder police charges that are set down for hearing in the Local Court on 10 February 2025.

The joint memorandum of facts and issues

1. [3]

   Pursuant to Practice Note SC CL 12, the application is accompanied by a joint memorandum of facts and issues, which includes the following relevant background to the application, to which I have added some observations and further evidence summaries.

2. [4]

   The defendant, who is a First Nations man, has an extensive record of matters in the Children’s Court, the earliest entries being when he was aged 16. Most were property-related, such as goods in custody, break and enter, possessing housebreaking implements, take and drive conveyance. From about the age of 17, entries were recorded for contravening an ADVO and assault in a domestic violence context.

3. [5]

   The defendant pleaded guilty to nine offences over three incidents that occurred on 14 and 15 February 2014 when he was aged 17, which were charged under the same sequence. Those offences, and the relevant statutory provisions, are:

4. [6]

   The defendant also pleaded guilty to a separate count of assault with intent to rob whilst in company and wounding (s 98 of the Crimes Act) arising from a fourth incident on 15 February 2014.

5. [7]

   The agreed facts in respect of those four incidents were to the following effect. On 14 February 2014, the defendant, in the company of Jacob Lupton and an unknown male, approached the victims, who were a male and female couple, shortly after they alighted from a cab near their home. The defendant demanded the female’s wallet and bag. The victims were able to enter their secure unit complex, but the three males continued to harass them and demanded their mobile phones. The defendant was able to gain entry to the complex by damaging property and then followed the victims as they ran to their unit. The defendant threatened to “knife” them with a switchblade knife that he was holding. The victims escaped. They thought that all three males appeared to be drug-affected.

6. [8]

   Later that day, the defendant and Mr Lupton approached a male and female couple who were walking home. The defendant kicked the male to the leg and held a knife, which appeared to be a folding razor blade or switchblade, in an aggressive manner to the male’s face. The defendant threatened the victims with the knife for some seconds and left.

7. [9]

   Moments later, the defendant approached another male and female couple who were nearby and punched the male to his face with a clenched fist, in a hook style punch. The male victim tried to walk away and the defendant pulled a knife on him and demanded his valuables, stealing his wallet. He stole the victim’s iPhone and a sum of cash.

8. [10]

   In the early hours of 15 February 2014, Mr Lupton assaulted a male passenger at Central Railway Station and the defendant produced a knife to the victim.

9. [11]

   Around 2am on the same morning, the defendant and Mr Lupton followed another male while he was walking by Rockdale Railway Station after exiting a bus. As he tried to enter his home, the man was assaulted by Mr Lupton, who had a piece of fence. The defendant had “a similar weapon” but with “metal pieces”. Mr Lupton demanded the victim’s wallet and struck him to the back of the head. The defendant did likewise, with sufficient force to “split open” the victim’s head. The victim fell to the ground, Mr Lupton tried to steal the victim’s wallet from a pocket and the victim resisted. The defendant struck the victim twice to his back. The victim escaped, ran home and called the police. The victim’s version of events was corroborated by several witnesses, and CCTV images allowed for the defendant to be identified.

10. [12]

    The agreed facts continued:

11. [13]

    The defendant admitted to police that he engaged in the offences to buy more “ice” (methylamphetamine). On 5 November 2014, several control orders were imposed on the defendant in the Children’s Court for the offences concerning the first three incidents, for a period totalling 22 months, commencing on 23 October 2014 and expiring on 22 August 2016. The defendant was eligible for release on 21 August 2015.

12. [14]

    On 24 March 2016, by which time the defendant was aged 19, Judge Townsden sentenced him to imprisonment for 3 years and 9 months with a non-parole period (NPP) of 2 years for the offence arising from the fourth incident (of assault with intent to rob whilst in company and wound). The total sentence commenced on 23 February 2015 and expired on 22 November 2018. This was the defendant’s first term of imprisonment as an adult.

13. [15]

    The defendant was not released to parole until 18 June 2023 because of the sentences imposed for the offences below.

14. [16]

    On 9 November 2016, the defendant assaulted a fellow prison inmate three times with a “shiv”, causing two wounds to his right shoulder, one to his abdomen which penetrated the right lobe of his liver, and one in the left lateral chest wall.

15. [17]

    The defendant was charged with wounding with intent to cause grievous bodily harm (GBH), contrary to s 33(1)(a) of the Crimes Act, which is a “serious violence offence” as defined in s 5A of the Act. On 12 October 2018, Judge Herbert sentenced the defendant to 6 years and 4 months imprisonment (NPP of 4 years). The sentence commenced on 19 June 2016 and expired on 18 October 2022.

16. [18]

    On 20 March 2018, the defendant struck another inmate in the face, forearm, neck and torso, with a “shiv”. The defendant and the inmate had known each other from juvenile detention, and the inmate had been transferred to the defendant’s correctional facility earlier that day. The defendant pleaded guilty in the Local Court to one charge of wounding with intent to cause GBH, that being his second “serious violence offence” as defined in s 5A of the Act. On 30 May 2019, Judge Hanley sentenced the defendant to 5 years’ imprisonment (with a NPP of 3 years), commencing on June 2018 and expiring on 18 June 2023.

17. [19]

    On 9 November 2019, the defendant committed the offence of reckless wounding, contrary to s 35(2) of the Crimes Act, against another inmate. According to the agreed facts, the defendant tipped a bucket of hot water on the inmate’s upper body while he was wearing a jumper, causing burns to 10 per cent of his body, including second degree burns to 1 per cent of his body. On 25 September 2020, Judge Ellis sentenced the defendant to 3 years imprisonment commencing on 18 June 2021 and expiring on 17 June 2024, with a NPP of 3 months.

18. [20]

    On 26 November 2021, the defendant assaulted a corrections officer. The agreed facts state that the officer tried to confiscate kittens from the defendant’s possession. The defendant punched the officer who retaliated by grabbing the defendant. The defendant again threw a punch at the officer but missed. Other officers intervened to subdue the defendant. The officer suffered bruising to his eye. The defendant was charged with assaulting a law enforcement officer (not police), contrary to s 60A(2) of the Crimes Act. He was sentenced in the Local Court to 9 months’ imprisonment commencing on 16 February 2022 and expiring on 15 November 2022.

19. [21]

    Consequent to the above offending and sentences, the defendant was in continuous custody from 22 August 2014 until he was released to parole on 18 June 2023. On 12 December 2023, while on the platform at a railway station, the defendant allegedly incited a male stranger to “throw a punch”. When the male ignored the defendant and walked on, the defendant allegedly repeatedly punched him to the head, causing him to fall to the ground. The defendant continued to assault the victim to his head and face on the ground, causing red marks and swelling. Another male intervened and the defendant allegedly assaulted that man, causing a bruise and a small cut above one of his eyes. Eventually, four other bystanders pinned the defendant to the ground until police arrived.

20. [22]

    The defendant told arresting police that he ‘felt like running on train tracks’ and allegedly banged his head against the door of the caged vehicle, causing his nose to bleed and other self-inflicted injuries that resulted in undisplaced fractures of two of his ribs and a nasal fracture. He was conveyed to Nepean Hospital by police pursuant to s 22 of the Mental Health Act 2007 (NSW). After he allegedly refused to follow an instruction to get out of the police caged vehicle, he was allegedly forcefully removed from it, placed in a hospital bed by police and held down until he was fully restrained. The defendant allegedly assaulted two police officers who were restraining him.

21. [23]

    A mental health assessment resulted in the defendant being admitted to Nepean Hospital as an involuntary patient. On 11 January 2024, he became a voluntary patient. On 24 January 2024, he was discharged from Nepean Hospital, arrested by police and charged with one count of assault police officer in execution of their duty without actual bodily harm; one count of hinder or resist police officer in the execution of their duty; and two counts of assault occasioning actual bodily harm (the 12 December 2023 charges). On the same date, he was bail refused by Mount Druitt Local Court with respect to the above charges and has remained in custody since that date. On 2 May 2024, the criminal proceedings relating to those charges were adjourned to 10 February 2025 for hearing at Penrith Local Court.

22. [24]

    On 24 April 2024, the defendant pleaded guilty at Mount Druitt Local Court to minor driving offences, being not displaying “L” plates as prescribed and not being accompanied by driver/police officer/tester, for which he received fines and a disqualification from driving for 3 months from 24 April 2024.

23. [25]

    On 8 May 2024, the State Parole Authority revoked the defendant’s parole on the basis that he had breached a condition of his parole which required him to be of good behaviour. His total sentence expired on 17 June 2024, but he remains in custody, bail refused, on the 12 December 2023 charges.

24. [26]

    As noted, the defendant was released to parole on 18 June 2023. A profile of the defendant’s progress on parole emerges from the Offender Integrated Management System (OIMS) notes concerning him. The OIMS notes, at least initially, were quite positive. On release, the defendant commenced residing with his mother. In July 2023, he was looking for employment. On a positive note, on 13 July 2023, he completed an intake assessment for a drug and alcohol program (Dianella Cottage) and on 25 July 2023, he commenced an Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Foundations program. By 28 August 2023, he was attending fortnightly sessions with a Dianella Cottage staff person. The defendant was also apparently candid with slip-ups along the way, admitting, on 11 September 2023, to having a cone of cannabis and being stopped by police for riding a bicycle without a helmet, and on 10 October 2023, that he had spent $1,200 on “pokies and drugs”. He said that he hoped to recommence taking medication for his Attention Deficit Hyperactivity Disorder (ADHD).

25. [27]

    On 19 October 2023, Community Corrections received information that the defendant had moved in with another family member and that he had relapsed into drug use. The following day the defendant was contacted and denied drug use, other than what he had already admitted. An inquiry with his EQUIPS program facilitator yielded a positive response as to the defendant’s participation. On 23 October 2023, the defendant admitted that:

26. [28]

    Further counselling and program attendance was arranged but difficulties were encountered in gaining admission to a suitable program, by no fault of the defendant. On 8 December 2023, the defendant was approved for admission to the Violent Offender Therapeutic Program (VOTP) maintenance program, to commence in January 2024.

27. [29]

    From about that date, the defendant’s situation deteriorated rapidly, apparently due to him using methylamphetamine and experiencing episodes of mental health issues. As noted, he was arrested and hospitalised on 12 December 2023.

28. [30]

    With respect to the defendant’s recent institutional conduct, the statement of agreed facts states the following:

29. [31]

    The defendant continues to have ADHD and suffer from a complex Post-traumatic Stress Disorder (PTSD) and impulsivity issues. In July 2024, he suffered from anxiety-related chest pains. On 19 August 2024, he expressed a reluctance to being restrained for an escort to the hospital, stating: “I don’t want to go ... [I am] scared of the shackles, handcuffs and belt. It makes [me] claustrophobic”.

The relevant statutory provisions and principles

1. [32]

   Section 5B of the Act relevantly provides as follows:

2. [33]

   The term “serious offence”, which appears in s 5B(d), is relevantly defined in ss 4 and 5A of the Act, as follows:

3. [34]

   As noted, the defendant does not contest that the preconditions for an application for an ESO, which are set out at ss 5B(a)–(c) of the Act, are made out. I am independently satisfied that is so, by virtue of the defendant having committed two serious violence offences (in November 2016 and March 2018), as defined in ss 4 and 5A(1) of the Act.

4. [35]

   The reference in s 5B(d) of the Act to “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act, which provides as follows:

5. [36]

   I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the prerequisites in that section are satisfied.

6. [37]

   Sections 3 and 9 of the Act stipulate its objects and the paramount consideration to be taken into account when determining an application for an ESO, respectively. They are as follows:

7. [38]

   Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act (s 6(3)(a) of the Act); and includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence (s 6(3)(b) of the Act). The reports by Mr Sheehan and Dr Seidler are in compliance with s 6(3)(b) of the Act.

Section 9(3) of the Act: forensic reports and evidence

1. [39]

   Pursuant to s 7(4) of the Act, reports were obtained from forensic psychologists Patrick Sheehan and Dr Katie Seidler. At the time that they were retained, the period of the ESO sought was two years. Following receipt of their reports, the plaintiff amended its summons to seek an ESO for a period of three years.

2. [40]

   The plaintiff has also tendered a risk assessment report (RAR) prepared by psychologist Richard Parker (s 9(3)(c)) of the Act); a risk management report (RMR), prepared by Jamie Burton and, effectively, an updated RMR in the form of an affidavit, by Jessie Slattery-McDonald (s 9(3)(d1) of the Act).

3. [41]

   Patrick Sheehan is, as noted, a forensic psychologist. His report is dated 23 August 2024. Mr Sheehan took the following early childhood history from the defendant:

4. [42]

   The defendant said his parents separated permanently in his pre-pubescent years, and his mother did not re-partner. She suffered from a bipolar disorder and the ongoing effects of trauma, and the children were troubled, difficult to control and prone to drug use. The defendant would run away frequently, from a young age. Mr Sheehan continued:

5. [43]

   The defendant said he was diagnosed with ADHD prior to commencing school, although Mr Sheehan noted reports suggesting the diagnosis was made when the defendant was in late primary school. He was expelled at the beginning of year 9 for bringing cannabis to school. He has a “negligible” employment history and has been in continuous custody since the age of 17. I note that he is now aged 28. Mr Sheehan continued:

6. [44]

   Mr Sheehan noted that the defendant has never completed a residential drug rehabilitation program and that the programs he attended while on parole “had little impact on his substance use. The defendant expressed an ongoing interest in participating in a residential rehabilitation program should he be accepted”.

7. [45]

   Mr Sheehan noted that the defendant:

8. [46]

   Mr Sheehan thought it likely that the defendant’s mental health episodes in 2023 were likely due to drug-induced psychoses rather than a schizophrenic illness. As to the defendant’s past diagnosis of ADHD, he referred to the defendant’s descriptions of episodes of impulsivity, hyperactivity and inattention, and concluded:

9. [47]

   Mr Sheehan also found that the defendant met the diagnostic criteria for a Polysubstance Use Disorder (Moderate-severe, in early remission, in a controlled environment).

10. [48]

    Mr Sheehan assessed the defendant’s dynamic risk factors for committing a violent offence utilising the Violence Risk Scale (VRS). He found that violence had been a way of life for the defendant, both in the community and in custody. He could not conclude that the defendant presented as “prototypically psychopathic”. He found that the defendant rationalised antisocial behaviour (including violence); that he sought to live by the spur of the moment in the community; and that he was high on criminal attitudes. While the defendant was found to express a work ethic, there was little evidence of this either in custody or the community, although he expressed a desire to seek employment on release. Although the defendant identified as “a loner”, negative associations were an ongoing problem and found to be directly related to his expression of violence over the years, encouraging substance abuse and committing violence offences in company.

11. [49]

    The defendant had poor emotional control which had been a central feature of a number of episodes of expressive interpersonal violence. He had impaired tolerance to frustration or distress, thus, acting out impulsively. He had a long history of carrying weapons, making weapons and using weapons in the course of violent action. Mostly this involved bladed weapons but he had also used pieces of wood and boiling water as weapons in the past. His misconduct charge earlier this year for possession of a gaol-made weapon indicated to Mr Sheehan the persistence of this behaviour. He found that the defendant had shown some insight into his violent behaviour, appreciating the role of substance use, reducing distorted justifications and challenging antisocial beliefs, although he qualified that observation:

12. [50]

    Mr Sheehan found there to be a strong association between the defendant’s PTSD and his violent behaviours, “with hyperarousal, agitation and displaced aggression towards the person whose words or behaviour remind him of his abusive father”. According to Mr Sheehan, there was also a link between the defendant’s substance use and violent behaviour, which is particularly evident with his use of stimulants, although he had also been capable of violence when not substance affected.

13. [51]

    Mr Sheehan considered that the defendant’s engagement with his family and other community supports was superficial, and that he did not allow them to influence him positively: “For [the defendant], it is not the presence of supports that is the issue but his use of those supports”.

14. [52]

    As to the defendant’s compliance with supervision, Mr Sheehan said:

15. [53]

    As to risk scenarios, Mr Sheehan considered that:

16. [54]

    Mr Sheehan concluded that the defendant’s overall level of risk of violent recidivism was “within the high risk category”.

17. [55]

    The report of Dr Katie Seidler, who is a clinical and forensic psychologist, is dated 23 August 2024. Dr Seidler formed a generally positive impression of the defendant’s presentation in her audio video link assessment of him on 9 August 2024, saying:

18. [56]

    Nevertheless, Dr Seidler cut short her interview to accommodate a growing anxiety by the defendant that, in view of an impending lockdown, he may miss out on showering, cleaning and accessing his “buy up”. Dr Seidler accepted that such anxiety was understandable in the context of the compulsive symptoms that long term inmates often have when there is a change in routine.

19. [57]

    Dr Seidler extensively reviewed earlier reports concerning the defendant’s personal and mental health history, his criminal antecedents, his progress in rehabilitative programs, his behaviour on parole and the opinions of other forensic professionals as to the defendant’s criminogenic factors and his risk of violent recidivism. I will not canvass all of that material in this judgment, although I do note the following.

20. [58]

    The discharge summary at Nepean Hospital, dated 24 January 2024, reported that, on admission, drug testing of the defendant was positive for amphetamines, “benzoamphetamines” and ecstasy. It further noted:

21. [59]

    A report of a clinical nurse consultant (Mental Health) at Liverpool Local Court, dated 24 April 2024, reported that the defendant attended a school for children with behavioural concerns and that he was expelled for drug use in Year 8. I note that this history of expulsion from school roughly accords with the account given to Mr Sheehan by the defendant.

22. [60]

    Dr Seidler extensively reviewed the RAR that was prepared by Richard Parker, which is separately considered below.

23. [61]

    The VOTP treatment report noted that the defendant was born with likely neonatal abstinence syndrome on the basis of his mother’s heroin abuse, and provided a different reason for the defendant being expelled from school, which was that in year 8 he assaulted the school principal. The same report noted protective factors operating in the defendant’s life:

24. [62]

    Dr Seidler’s opinion included the following, which I consider appropriate to quote:

25. [63]

    Dr Seidler approached the issue of determining the defendant’s level of risk of violent recidivism by adopting “a multifaceted approach”, using “various instruments to conceptualise [his] risk”. These were the Level of Service/Case Management Inventory (LS/CMI), the Violence Risk Scale – second edition (VRS-2), the Historical Clinical and Risk Management – 20 Version 3 (HCR-20 V3) and the Structured Assessment of Protective Factors for violence risk (SAFROF). Dr Seidler summarised her findings as to risk assessment as follows.

26. [64]

    At a later point on this issue, Dr Seidler said:

27. [65]

    Dr Seidler succinctly stated her diagnoses as follows:

28. [66]

    Dr Seidler was of the opinion that the evidence was “overwhelmingly” in favour of an opinion that the defendant’s risk of future violence, including future serious violence, cannot be managed without “a high level of structure, support and supervision.”

29. [67]

    Richard Parker is a senior psychologist with the Serious Offenders Assessment Unit at Corrective Services. His RAR is dated 24 November 2023.

30. [68]

    Mr Parker gave the following assessment:

31. [69]

    As to risk scenarios, Mr Parker stated:

32. [70]

    As noted, Mr Burton is a Community Corrections Officer with the ESO team. His report is dated 5 December 2023. At the time of the report, the defendant was living in the community with his family. The author noted the difficulties that the defendant encountered in locating a residential drug rehabilitation program that would accept him with his criminal record.

33. [71]

    Ms Slattery-McDonald is the High Risk Offender Applications and Operational Governance Officer in the ESO Team of Corrective Services. Her report is in the form of an affidavit, dated 29 August 2024. She stated that she did not know the defendant, but had familiarised herself with his case and outlined the manner in which he would be managed on an ESO.

Finding as to s 5B(d) of the Act

1. [72]

   In the terms of s 5B(d) of the Act, I am satisfied to a high degree of probability by the forensic assessments of the defendant and opinions concerning his level of risk of violent recidivism that he poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. I decline to exercise the discretion made available by ss 5B and 9(1) of the Act to not make an ESO; in so determining, I note that the defendant did not submit that such a finding should be made.

The length of an ESO

1. [73]

   In his formative years, the defendant was exposed to serious abuse which lay the foundation for lasting psychological damage and serious criminogenic behaviours that have deprived him of more than a decade of his liberty; effectively, his young adulthood. His first attempt at community reintegration, in spite of the best efforts of his supportive family, was a failure.

2. [74]

   The defendant is realistic about the challenges he faces. My impression of him is that he is committed to getting his life in order. He demonstrated that by his acceptance of the need for him to gain admission to a residential rehabilitation program before his arrest in December 2023, his instructions to his legal representatives that he needs an ESO regime and its attendant rehabilitative resources, and his wholly cooperative attitude towards Mr Sheehan and Dr Seidler.

3. [75]

   I am conscious that Mr Sheehan is of the opinion (excerpted at [46] above) that, although antisocial personality disorder generally runs a chronic course, it can be targeted for change by psychotherapy. Both forensic experts have highlighted the need for professional support and intervention.

4. [76]

   Mr Sheehan regarded two years as the minimum period required to achieve a significant amelioration of the defendant’s level of risk of violent recidivism. Dr Seidler was of the opinion that a two-year ESO was appropriate at minimum, and that a “three year order may serve [the defendant] better to encourage his stability in the community and allow him to access, engage in and profit from rehabilitation programming”. The defendant is burdened by a relatively high degree of institutionalisation through the impact of the extended period of his incarceration on his young adulthood; he lost those formative years in the community when young adults work out how to socially, economically and psychologically survive on their own. That being so, I am of the view that the ESO should be for a period of three years.

Proposed conditions of the ESO

1. [77]

   As noted, the defendant challenges the necessity of two of the proposed conditions.

2. [78]

   The plaintiff proposes the following condition:

3. [79]

   The defendant submits that condition 28(b) be deleted because it is unnecessarily restrictive, since virtually all messaging apps (for example, WhatsApp, Facebook Messenger, Apple Messages) are now encrypted.

4. [80]

   Alternatively, the defendant proposes this wording for condition 28(b):

5. [81]

   I will accede to the defendant’s alternative submission. In view of the defendant’s long-standing issues with prohibited drugs, it is appropriate for there to be oversight of the defendant’s electronic communications, which are a well-known method for drug supply runners to deliver purchases of prohibited drugs.

6. [82]

   As to electronic monitoring and scheduling, the plaintiff proposes the following: [2]

7. [83]

   The defendant proposed modifications of the triggers of homelessness and drugs and alcohol, which were not opposed by the plaintiff; a sunset period of three months for the electronic monitoring; and an option for the DSO to impose electronic monitoring for up to one month if they have “immediate concerns about [the defendant’s] risk of committing a serious offence”.

8. [84]

   The plaintiff maintained its preference for electronic monitoring in the terms proposed originally, but also proposed an alternative if the Court is minded to impose a sunset clause. This alternative would allow a maximum continuous period of electronic monitoring for three to six months, subject to an additional month, in accordance with a new clause (5A), which would read as follows:

9. [85]

   I understand the benefit of a sunset clause as an encouragement to the defendant to quicky remedy the underlying problem that triggers electronic monitoring. However, realistically, a breach of condition 5 in the terms of paragraphs (a) or (b) will likely result in his arrest and at least his short-term incarceration pending a possible grant of bail, so that the ESO would be suspended in any event. Electronic monitoring triggered by homelessness should only last, in my opinion, for so long as the defendant is homeless. The focus, then, is condition 5, paragraph (d): the use of drugs and/or alcohol, which I note, is a major risk factor for the defendant to commit a serious violence offence.

10. [86]

    Condition 16 forbids the defendant from consuming alcohol, without prior approval of a DSO; or, prohibited drugs. It would be unsurprising for the defendant to falter on the path to abstention. Proposed condition 5 mandates electronic monitoring and scheduling if he is found to have breached condition 16. In my view, that is unnecessarily strict. Rather, electronic monitoring and scheduling should be one option to be considered if the defendant consumes alcohol or drugs.

11. [87]

    Three months is unrealistically short for the defendant to overcome succumbing to those temptations, but six months is unnecessarily long. The mechanics of the conditions must foreshadow slips along the way, and also the defendant rebounding with further interventions. That is best achieved, in my view, with periods of electronic monitoring and scheduling for up to four months, with no restriction on it being reintroduced when necessary.

12. [88]

    I do not see any point in adding a power for the DSO to impose electronic monitoring and scheduling for a month if they anticipate a “serious offence” being committed by the defendant. It is too broad and vague. The focus should be on ensuring the defendant keeps away from criminogenic triggers, such as drugs and alcohol.

13. [89]

    Accordingly, I will redraft condition 5 as follows.

14. [90]

    The need for an additional change, which is not opposed by the parties, came to light during oral submissions. It would be inappropriate for the defendant to download a self-deleting messaging app. Arguably, that is already covered by proposed condition 28, but to ensure clarity and certainty, it is preferable to add the following words to condition 32 (as italicised):

Orders

1. [91]

   I make the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of this order.

   2. (2)

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

   3. (3)

      The interim supervision order made by Harrison CJ at CL on 18 June 2024 is revoked from the date of this order.

   4. (4)

      Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.