State of New South Wales v Helmhout

1. [1]

   The State seeks an extended supervision order for 5 years against Mr Helmhout under s 5F of the Crimes (High Risk Offenders) Act 2006 (NSW). There is no issue between the parties that Mr Helmhout is a person against whom such an order may be made, falling as he does within the definition of a “supervised violent offender” under s 5 of the Act, because he is currently under supervision on parole for the offence of murder.

2. [2]

   There is also no issue that the application complies with the requirements of s 6 of the Act, given the risk assessment of 29 July 2015 undertaken by Dr Parker.

3. [3]

   This judgment deals with the State’s application for interim orders. Under s 10B orders may be made on satisfaction:

4. [4]

   Extended supervision orders may be made “if and only if the offender is a high risk violent offender” (s 5E(1)). In issue is whether Mr Helmhout is a “high risk violent offender” as defined in s 5E.

5. [5]

   The non-parole period imposed by Bell J in June 2000 for Mr Helmhout’s murder offence expired on 19 December 2011 (see R v Pieter Egbert Helmhout & Anor [2000] NSWSC 651). He was then released on parole, but it was revoked on 8 January 2013 for breach and he was returned to custody. He was again released on parole on 19 September 2014, but parole was again revoked on 6 February 2015. He was then again released on parole on 27 May 2015. His sentence expires on 19 June 2016.

6. [6]

   It is common ground, however, that since May 2015 Mr Helmhout has completed a residential drug rehabilitation course and has since then been living in the community, without further offending, while under strict supervision, including electronic monitoring. Mr Helmhout relies on this, as well as his record in custody, to contend that it cannot be concluded that he is a high risk violent offender.

7. [7]

   Despite Mr Helmhout’s recently found ability to not abuse drugs and his compliance with the stringent supervision which he is presently the subject of on parole, I have been persuaded on all of the evidence which I will discuss, that it must be concluded that Mr Helmhout is a high risk violent offender and that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order against him.

The statutory scheme

1. [8]

   There is no issue that Mr Helmhout is a “violent offender”, that term being defined in s 4 to mean “a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a serious violence offence”.

2. [9]

   A “high risk violent offender” is defined in s 5E(2) to mean an offender who is “a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.” A “serious violence offence” is defined in s 5A(1) to be:

3. [10]

   A “serious indictable offence” is defined in s 5A(3) to be:

4. [11]

   In determining whether an offender poses an unacceptable risk of committing a serious violence offence the Court “is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence” (s 5E(3)).

5. [12]

   There is also no issue that Mr Helmhout presents a risk of violent re-offending. Whether that risk is an unacceptable one is in issue. The term “unacceptable risk” is not defined. Its meaning must be approached in light of the objects of the Act, which are specified in s 3 to be:

6. [13]

   Determination of the risk which Mr Helmhout poses involves an evaluative judgment, which must be undertaken in light of the evidence. As discussed in Lynn v State of New South Wales [2016] NSWCA 57 at [50] - [51] and [55]:

7. [14]

   The term “a high degree of probability” is also not defined. In Cornwall v. Attorney General for New South Wales [2007] NSWCA 374 its meaning (in predecessor legislation) was said (at [21]) to be:

8. [15]

   In resolving what lies in issue attention must also be paid to the requirements of s 9(3), which provides that in determining whether or not to make an extended supervision order the Court must:

The evidence

1. [16]

   The State relies on the affidavit of Ms Sato, annexed to which were various relevant documents including reports prepared by Ms Thomson, a Senior Community Corrections Officer and Dr Parker, a psychiatrist. They were both called for cross-examination.

2. [17]

   Mr Helmhout relies on his record, including in custody, as well as a letter provided by the Oolong Aboriginal Corporation which attests to him having graduated from its 16 week program on 16 September 2015. He is there said to have been an exemplary client who led by example; that he had been asked to volunteer at the organisation and since January 2016 has assisted staff and residents on an unpaid voluntary basis two days a week, to transport clients to appointments in the local community; to supervise group activities. He was also described to be instrumental in the Alcohol Anonymous and Narcotics Anonymous programs offered to residents at the Centre. He also attends agenda meetings and staff meetings.

3. [18]

   On 25 September 2015, while on parole, Mr Helmhout moved from a residential rehabilitation centre to a two bedroom house leased from the Department of Housing, where he has lived independently for some 8 months. He has been under electronic monitoring as well as field visits. There have been no adverse reports regarding his movements or interactions with the community since then.

Why the evidence establishes to a high degree of probability that Mr Helmhout poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision

1. [19]

   While there is no question that Mr Helmhout poses a risk of committing a serious violence offence, it is not possible to accurately predict whether, in the future, he will commit such an offence.

2. [20]

   His case was that most of the offences of violence he has committed in the past were not “serious violence offences”. That was not in issue. As well as a conviction for murder, Mr Helmhout has a long record of other offending involving violence, commencing with an offence of assault, committed in 1978, when he was aged 17. He also has a long record of other offending, including drug offences.

3. [21]

   He also relied heavily on his record of not having offended or breached his parole in the past 12 months, to submit that it would be concluded that there is not a high degree of probability that he now poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision, after the term of his sentence expires.

4. [22]

   That Mr Helmhout has not been assessed to be at high risk of further violent offending was also submitted to be relevant to that conclusion and a matter which was argued, should be given considerable weight in the Court’s assessment. It was, however, accepted that an assessment that he posed a medium risk did not preclude the conclusion that he posed an unacceptable risk of committing a serious violence offence.

5. [23]

   It was also submitted to be relevant that the reports relied on by the State were out of date and thus, it was argued, could not pay necessary regard to his last 12 months on parole, which demonstrated his capacity to adapt to the law abiding lifestyle which Dr Parker had identified to be necessary, if he was to remain in the community unsupervised. Mr Helmhout also relied on the letter of support from Oolong House, which, in his evidence, Dr Parker agreed was one of a number of positive factors which had to be taken into account on this assessment.

6. [24]

   In the result, it was argued, consistently with the conclusions reached in State of New South Wales v Pacey [2015] NSWSC 1983, it would here also be concluded that while Mr Helmhout is at some risk of reoffending, that does not set him apart from a very large number of those with whom he has been incarcerated and that there is not an identifiable risk of violent offending of sufficient probability to indicate that he is a high risk violent offender (see at [54]).

7. [25]

   Each case must be determined on its own facts. In this case it is relevant in resolving the question of whether the risk which Mr Helmhout poses, if not kept under supervision, is an unacceptable one, that the evidence establishes firstly, that there is a considerable connection between Mr Helmhout’s past violent offending and his alcohol and drug abuse, when unsupervised in the community. Secondly, that in the past, when he has engaged in violence when drug and alcohol affected, his violence has been extreme, to the point of causing the death of another person. Thirdly, that since he completed the parole period imposed for his murder offence, despite not having used illicit drugs in custody, he has twice been granted parole, which was revoked following aggressive behaviour and resumption of drug use. Fourthly, it was only when subjected to electronic monitoring that he has been able to successfully complete a residential rehabilitation course and to abstain from drug abuse, while in the community.

8. [26]

   Mr Helmhout’s conviction for murder followed evidence that on 28 June 1998, he and his victim had consumed a considerable amount of alcohol and marijuana. They had attended Mr Helmhout’s elder brother’s funeral. Mr Helmhout’s other brother became offended by the victim repeatedly referring to their brother by name, contrary to Aboriginal custom. He began punching the victim in the head. As Mr Helmhout left the room, he also punched the victim. When he returned, he found his brother strangling the victim with a belt. Mr Helmhout then placed an electrical cord around the victim's neck and pulled it in the opposite direction. Death quickly ensued. Mr Helmhout and his brother then kicked, stamped on and subjected the victim’s body to acts of degradation.

9. [27]

   In her sentencing judgment, Bell J, as she then was, discussed the evidence of what Mr Helmhout had told police about his conduct. She there explained why she had come to the view that such remorse as he had then exhibited, no longer existed at the time of his interview with the psychiatrist Dr Nielssen.

10. [28]

    Dr Nielssen then considered that Mr Helmhout had a substance dependence syndrome and probable mild alcohol related brain damage, but he did not consider him to be markedly antisocial, having had a good work history and behaving appropriately, when not under the influence of alcohol.

11. [29]

    Mr Helmhout’s appeal against his conviction was dismissed (see Helmhout v R [2001] NSWCCA 372; (2001) 125 A Crim R 257).

12. [30]

    That was the last time that Mr Helmhout has been involved in causing a death. In custody since then he has not had a history of drug abuse or violent offending.

13. [31]

    Beforehand the position was very different. Mr Helmhout was also convicted of an aggravated dangerous act causing death in August 1995, when he and another victim were drinking alcohol. After an unwanted sexual advance, Mr Helmhout bashed that victim with a bag of books, kicked him, tied up his legs and left the victim groaning. He was found comatose, with his legs still tied, later that day. He died the next day from blunt head trauma caused by being hit with the bag. Other blows had been struck to his neck, arms, legs, front and back trunk, resulting in 23 separate injuries. It was accepted that on this occasion, Mr Helmhout had not intended to inflict serious harm and that he had been provoked and affected by alcohol.

14. [32]

    Mr Helmhout was also convicted of being an accessory after the fact to manslaughter in April 1991, when his brother shot the victim, who Mr Helmhout had approached about buying cannabis. When woken and told about the shooting, he and a friend helped his brother dispose of the body. On sentence, Angel J observed that he had been living an alcoholic, itinerant lifestyle in Darwin for many years; that his long criminal record all appeared to be drug and alcohol related; and that he was in the depths of alcohol abuse at the time of this offence. It was also noted that when woken, his first reaction was to drink more alcohol and smoke more marijuana. It was accepted that at that time he was incapable of making any rational decision.

15. [33]

    Mr Helmhout’s record otherwise includes offences of assault and assault occasioning actual bodily harm, dating back to the age of 17 years. In the 1980s he had been the sergeant at arms of The Vagrants motorcycle gang.

16. [34]

    Since Dr Nielssen’s report, Mr Helmhout has been examined by Professor Greenberg in December 1999, Dr Read in June 2000, Dr Thomson in 2000, Dr McGrath in 2005 and Dr Greenberg in November 2007. He has also had various diagnoses and received various treatments.

17. [35]

    In 2007, he gave Dr Greenberg a history of persistent alcohol abuse from age 18 and substance abuse from age 20. He began with cannabis and progressed to speed and heroin at age 25. Drug and alcohol rehabilitation programs which he attended in the early 1990s in Townsville had not resulted in abstention, although he claimed that he had abstained from alcohol since 1995. That was inconsistent with the evidence at his 1998 murder trial.

18. [36]

    Dr Greenberg’s diagnosis was poly substance abuse/dependence, in remission, but he noted treatment with methadone medication and recommended further drug and alcohol counselling, as well as reduction in methadone and other medication.

19. [37]

    At the request of the Serious Offender’s Review Council, the psychologist Mr Pestonji prepared a report in November 2007, in which it was noted that Mr Helmhout was still maintaining that he was not involved in the murder of which he had been convicted. It was also noted that he did not consider that he had a problem with alcohol and drugs.

20. [38]

    In July 2010, however, Mr Helmhout completed a substance abuse program, the Getting Smart Program, in custody. He was not referred to the Violent Offender Therapeutic Program, because he was not assessed as posing a high enough risk, although it appears that all of his relevant history was not considered on that assessment.

21. [39]

    After 14 years in custody, in December 2011 Mr Helmhout was released on parole on the Cooma Community Offender Support Program and permitted to live with his partner at Cooma. In February and March 2012 he tested positive for cannabis and admitted its use on a number of occasions. More intensive case management followed, with regular contact with the Alcohol and Other Drugs counsellor, but after two formal warnings about his attitude, his parole was revoked in January 2013.

22. [40]

    A psychological assessment undertaken by the psychologist Mr Ardasinski in September 2014, identified Mr Helmhout to fall into the medium risk of reoffending.

23. [41]

    In September 2014, Mr Helmhout was again released for residential rehabilitation in Wagga Wagga. There were initially positive responses, but over the Christmas period he stopped attending the program he was then participating in by way of a day program, and admitted cannabis use. In January 2015 he was terminated from the program after further marijuana use and in February parole was again revoked.

24. [42]

    When released again in May 2015 it was on stringent conditions including electronic monitoring and residence at another residential rehabilitation program, which he completed successfully. He has since abided by his conditions, while living in the community.

25. [43]

    Dr Parker saw Mr Helmhout in July 2015. In his report, for reasons which he explained by reference to his history, risk assessments undertaken using a number of identified actuarial tools explained both in the report and his oral evidence, as well as his interview with Mr Helmhout, Dr Parker concluded that Mr Helmhout, then a 54 year old man, presented a moderate risk of further violent offending. In oral evidence, Dr Parker explained, however, that his willingness to engage in extreme violence, with little provocation, remained a concern.

26. [44]

    Dr Parker considered that if left in the community without supervision, Mr Helmhout was likely to return to live with his partner in Cooma, where his behaviour had deteriorated during his first release on parole. He considered it to be unlikely that Mr Helmhout would abstain from marijuana without supervision and that its resumption was likely to lead to a decline in his lifestyle, increased risk of problematic alcohol consumption and associated risk of further serious violence, observing that it was of concern that when he was violent, Mr Helmhout is capable of extreme violence.

27. [45]

    In his cross-examination, Dr Parker agreed that there had been positive developments since Mr Helmhout’s latest release on parole, including completion of his drug program, compliance with other conditions of parole and not offending further. Also to be considered, however, are two unusual matters identified in the report which Dr Parker discussed in his oral report.

28. [46]

    The first was that while Mr Helmhout was at an age when typically criminogenic behaviour and thinking ought to have abated, when initially twice released to parole his behaviour was inconsistent with his age. The second that his behaviour then was typical of offenders at high risk of re-offending, rather than of the medium risk he had been assessed to present. Nevertheless, Dr Parker accepted that there had also been some positive developments since release on his current stringent conditions, which was relevant to the assessment of the risk which he posed.

29. [47]

    These observations, when considered with Mr Helmhout’s limited drug abuse and offending while in custody, suggests that he has benefited from the supervision which he received in custody and more recently, while on parole, subject to stringent conditions including electronic monitoring. It is that supervision which has helped him abstain from the drugs which are so closely associated with his extraordinarily violent offending. There is also a suggestion in the evidence that part of his problems during his earlier two releases on parole were the result of association with others involved in drug use in the community, including his partner.

30. [48]

    In Ms Thomson’s report, reference is made to a progress report in March 2012 to the State Parole Authority as to Mr Helmhout’s then problems with adapting to a law abiding lifestyle in the community, given his positive urinalysis test and aggressive attitudes towards Correctional staff. There reference was made to Mr Ardasinski's assessment, which accorded with that of Dr Parker, that Mr Helmhout fell into the medium risk category of violent offending.

31. [49]

    The proposed risk management plan proposed for Mr Helmhout was there explained by reference to his current conditions of supervision on parole, as well as matters raised by his history and views expressed by Dr Parker. It is proposed that once imposed, the plan proposed for his supervision would be scheduled for review every 2 months, with updates as necessary, to reflect any significant changes in his circumstances.

32. [50]

    In an annexure to the report, an explanation is given of the operation of the Community Corrections division of Corrective Services (NSW), which supervises interim and extended supervision orders made by the Court. Specified minimum frequencies of supervision, which may be exceeded, were there explained. In her oral evidence Ms Thomson explained that such supervision would be provided by the same officers who currently supervise Mr Helmhout on parole.

33. [51]

    In relation to electronic monitoring there is a four stage expected monitoring program proposed, which envisages that after three two-monthly reviews, such monitoring may be relaxed to the extent that electronic monitoring is no longer required at all. It must be inferred from the evidence that such relaxation was not possible while Mr Helmhout was on parole. Had it been, it is conceivable that he would no longer be subject to any electronic monitoring, given his adherence to his conditions and no further lapse in relation to drug use.

34. [52]

    One puzzling aspect of the report was, however, that it proposed a higher level of supervision than that which has led to Mr Helmhout’s current positive response to the strict conditions imposed upon him by the Parole Authority. This was explored in cross-examination. The only explanation advanced by Ms Thomson for what was proposed was that it accorded with the policy which applies to all offenders.

35. [53]

    That, it must be observed, appears to be potentially counterproductive in a statutory scheme designed not only to be of benefit to the community, but also of assistance to offenders. There seems no obvious reason to impose a supervision order on an offender who has served the sentence imposed upon him, partly in the community, while abiding by strict conditions of parole, which imposes even more stringent conditions than those found to be necessary during parole.

36. [54]

    Such an approach appears to pay no regard to the limitation on the Court’s power to impose only those conditions which are established to be appropriate for the offender. That requires more than imposition of a policy designed for all offenders, although there is obvious good common sense in an appropriate overall policy being devised to be used as a tool when particular conditions of supervision are being crafted for a particular offender. Still, each order sought requires that proper consideration be given to the particular circumstances of each individual in respect of whom an order is sought.

37. [55]

    Any other approach also fails to adhere to the requirements imposed by s 56(3) of the Civil Procedure Act 2005 (NSW), which imposes a duty on the parties to assist the Court to further the overriding purpose specified in the section “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Disputes about appropriate conditions ought not first to be grappled with at a hearing, as they were in this case when, finally, a curfew condition was not pressed, for example, that not being required any longer on parole.

Terms of the Order

1. [56]

   The order sought specifies, by way of a schedule, the conditions sought to be imposed on Mr Helmhout. They reflected relevant policies, as I have explained, unaltered by any consideration of Mr Helmhout’s relevant circumstances. They include his 12 months’ successful compliance with stringent conditions imposed by the Parole Board. They were:

2. [57]

   The conditions sought by way of an interim supervision order were even more stringent, than those presently required by the team which supervises his parole. Given that those who would supervise Mr Helmhout’s compliance with the conditions of the interim order are the same officers who supervise his compliance with the Parole Board conditions which he did not breach and that the proposed conditions also include relevant discretions, that approach is difficult to understand.

3. [58]

   Mr Helmhout’s case was that no electric monitoring should be required, given his record of compliance with his parole conditions and that his conditions otherwise should be no more stringent than those currently imposed upon him. That was partly accepted, the curfew condition not being pressed and as to electronic monitoring, it being submitted that condition 5 “should be varied to provide for a review of his level of electronic monitoring by his departmental supervising officer by 6 July 2016.”

4. [59]

   That there is any necessity for any more stringent conditions than those which currently apply to Mr Helmhout has simply not been established. That requires an amendment to condition 2 which provides:

5. [60]

   The appropriate amendment appears to be:

6. [61]

   Thereby it must be understood that while the initial reporting requirements imposed on Mr Helmhout should be no more onerous than those required pursuant to the Parole Board’s order when his parole comes to a conclusion, in the event of relevant change in Mr Helmhout’s circumstances, there is a discretion to alter those requirements, which may be exercised.

7. [62]

   If the parties wish to be heard on the wording of that condition, they should approach.

8. [63]

   Otherwise, those who supervise Mr Helmhout should review his electronic monitoring condition when the order takes effect, to determine whether, given his compliance with his conditions of parole over the last 12 months, his monitoring requirement should be removed, given the circumstances which then prevail.

9. [64]

   For these reasons, I order that:

   1. (1)

      Under section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"):

   2. (2)

      a. two qualified psychiatrists be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations;

   3. (3)

      b. direct the defendant to attend those examinations.

   4. (4)

      Pursuant to s 10B of the Act, that the defendant be subject to an interim supervision order from 22 June 2016 ("the interim supervision order");

   5. (5)

      Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and

   6. (6)

      Pursuant to s 11 of the Act, direct that the defendant comply with the conditions set out in the Schedule to this Order for the period of the interim supervision order.