State of New South Wales v McGrath

1. [1]

   JOHNSON J: By Summons filed on 30 September 2016, the Plaintiff, State of New South Wales, sought orders under the Crimes (High Risk Offenders) Act 2006 (“the Act”) with respect to the Defendant, Andrew Mark McGrath.

Preliminary Hearing and Orders

1. [2]

   On 3 November 2016, following a preliminary hearing, RA Hulme J made orders under s.7(4) of the Act appointing two qualified psychiatrists or psychologists to conduct separate examinations of the Defendant and to furnish reports to the Court, together with an interim supervision order (“ISO”) pursuant to ss.10B, 10C(1) and 11 of that Act, with the ISO to commence on 17 December 2016: State of New South Wales v McGrath [2016] NSWSC 1560.

2. [3]

   The Defendant had been sentenced by Grove J for the offence of murder to a term of imprisonment for 18 years commencing on 18 December 1998 with a non-parole period of 13 years and six months: R v McGrath [2000] NSWSC 419. An appeal against sentence was dismissed by the Court of Criminal Appeal: R v McGrath [2002] NSWCCA 207.

3. [4]

   The Defendant has been on parole since 27 May 2016. His entire sentence will expire by effluxion of time on 17 December 2016. It was for this reason that RA Hulme J directed that the ISO commence to operate from that date.

Final Hearing of the Application

1. [5]

   The final hearing of the Plaintiff’s application came before me on 7 December 2016.

2. [6]

   By that time, the Court-appointed psychiatrist (Dr Gerald Chew) and psychologist (Mr Patrick Sheehan) had examined the Defendant and provided reports to the Court.

3. [7]

   Mr Aitken of counsel appeared for the Plaintiff and Mr O’Neil of counsel appeared for the Defendant at the final hearing.

4. [8]

   The following documentary material was tendered or read on behalf of the Plaintiff at the hearing:

5. [9]

   Mr Sheehan, Dr Chew, Ms Cieplucha and Mr Dayal each gave oral evidence and was cross-examined at the final hearing.

6. [10]

   No evidence was tendered in the Defendant’s case.

7. [11]

   Helpful written submissions were made by Mr Aitken and Mr O’Neil and counsel spoke to those written submissions at the conclusion of the hearing.

Principal Issues for Determination

1. [12]

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

The Statutory Scheme

1. [13]

   Section 3 of the Act provides:

2. [14]

   Courts have emphasised that the legislative purpose of the Act is protective and not punitive, with the protective purpose being fundamental: State of New South Wales v Colebrook [2016] NSWSC 1702 at [9]. Proceedings under the Act are civil proceedings: s.21.

3. [15]

   Section 5E is of particular importance in this case. Section 5E provides:

4. [16]

   It will be noted that s.5E(2) refers to a “serious violence offence”. That term is defined in s.5A as follows:

5. [17]

   The Plaintiff seeks an order that the Defendant be made subject to an ESO. In that respect, s.5F provides:

6. [18]

   Section 9 provides for determination of an application for an ESO and the factors to be taken into account in that respect. Section 9 states:

7. [19]

   If the Court determines that an ESO should be made, s.10 provides with respect to the term of such an order. Section 10 states:

8. [20]

   Finally, the Act provides in s.11 for conditions that may be imposed as part of an ESO. Section 11 states:

Some Preliminary Issues

1. [21]

   The Plaintiff may only apply for an ESO where, at the time of filing the application, the Defendant was a “supervised violent offender” under s.5J(1) of the Act. The Defendant had been sentenced to a term of imprisonment for murder and, as at the time the application was filed on 30 September 2016, he was on parole for that offence. Accordingly, the Defendant fell within this statutory formula at the time the present proceedings were commenced: s.5J(2)(a)(i) and (iii).

2. [22]

   A “violent offender” means a person over 18 years sentenced to imprisonment for a “serious violence offence”: s.4. The offence of murder falls within the definition of “serious violence offence” in s.5A(1)(a) set out at [16] above.

3. [23]

   Accordingly, these preliminary aspects are satisfied in the circumstances of this case.

Construction of s.5E of the Act

1. [24]

   An important issue in these proceedings is whether the Plaintiff has demonstrated that the Defendant is a “high risk violent offender” as defined in s.5E(2) of the Act (see [15] above).

2. [25]

   The proper construction of s.5E has been considered recently by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57. A number of propositions emerge from the judgment of Beazley P (Gleeson JA agreeing in a separate judgment).

3. [26]

   Firstly, a finding that a person poses an unacceptable risk within the meaning of s.5E(2) is the gateway to the power to make (relevantly) an ESO under s.5F: State of New South Wales v Donovan [2015] NSWCA 280; 90 NSWLR 389 at 396 [24]; Lynn v State of New South Wales at [55], [148].

4. [27]

   Secondly, the right of the Defendant to his personal liberty, at the expiration of the sentence of imprisonment being served, is not relevant to the determination whether he poses an unacceptable risk for the purpose of s.5E(2): Lynn v State of New South Wales at [44], [55]-[58], [128], [148].

5. [28]

   Thirdly, before the Court embarks upon a determination under s.9 of the Act, it must have been satisfied, to a high degree of probability, that the person is a “high risk violent offender” as provided for in s.5E(2): Lynn v State of New South Wales at [48].

6. [29]

   Fourthly, the meaning of the phrase “unacceptable risk” in s.5E raises, in the first instance, a question of statutory construction - what the Court must find to be unacceptable is the “risk” that the offender poses “of committing a serious violence offence if … not kept under supervision” - the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of s.5E - a determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made: Lynn v State of New South Wales at [51].

7. [30]

   Fifthly, the evaluation of whether an offender is a “high risk violent offender” has to be undertaken in the context of legislation with the primary object of ensuring “the safety and protection of the community”: Lynn v State of New South Wales at [55].

8. [31]

   Sixthly, to the extent that there are differing approaches in first-instance decisions concerning the determination as to whether a person is a “high risk violent offender” within the meaning of s.5E(2), the proper approach is to give the words of s.5E(2) their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act - it is not appropriate to have regard to the serious consequences for the Defendant arising from (in this case) conditional liberty by way of an ESO: Lynn v State of New South Wales at [57]-[58].

9. [32]

   Seventhly, the word “ensure” (in s.3(1)) has shades of meaning and, in the context of the Act, the evaluation to be made under s.5E(2) is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection - if it were otherwise, every risk would be unacceptable: Lynn v State of New South Wales at [61].

10. [33]

    Basten JA (in a separate judgment) identified four interlocking steps to be undertaken on an application for an ESO (Lynn v State of New South Wales at [124]ff) involving identification of:

Factors Under s.9(3) of the Act

1. [34]

   A substantial volume of documentary material is in evidence for the purpose of the final hearing. I will refer to that evidence under the different headings contained in s.9(3) of the Act.

2. [35]

   The Defendant was born on 15 March 1979. At the age of 19 years, he committed murder as described in the sentencing remarks of Grove J in R v McGrath at [2]-[3], [6]-[8]:

3. [36]

   Grove J continued at [12]-[15]:

4. [37]

   After noting that the Defendant had provided three versions concerning his motive to commit murder, Grove J continued at [22]:

5. [38]

   The sentencing Judge expressed his impression that the Defendant “has a very flexible concept of truth” (at [24]) and continued with the following additional findings at [25]-[26]:

6. [39]

   The Defendant had committed a number of criminal offences before the offence of murder committed in 1998 at the age of 19 years. He committed offences of break, enter and steal and larceny between 1989 and 1992. In November 1993, the Defendant was sentenced by way of a control order and whilst in juvenile detention, committed two separate assaults upon other children for which he was subsequently sentenced to the rising of the Court (Exhibit VC1, pages 41-42).

7. [40]

   Given the Defendant’s murder offence and issues pertinent to this application, reference ought be made to a psychological committal report of Hany Gayed, psychologist, dated 8 February 1994 where Ms Gayed said (Exhibit VC1, page 398):

8. [41]

   In 1994 and 1995, the Defendant committed offences of malicious damage, obtain benefit by deception, larceny and possession of a firearm (a non-functioning air rifle) for which custodial and non-custodial sentencing orders were made.

9. [42]

   Apart from the assaults committed whilst in juvenile detention, the Defendant does not have any recorded history of violence other than the murder conviction. He has, however, given differing accounts of other acts of violence in two Violent Offenders Therapeutic Program (“VOTP”) applications whilst in custody. In 2009, he admitted to assaults of different persons when he was aged 16 and 18 years. In 2016, he described other incidents of hitting persons when he was a child.

10. [43]

    I have referred earlier to the sentencing remarks of Grove J concerning the index offence of murder. It is to be noted that the Defendant provided differing accounts of the circumstances surrounding the murder. To his flatmate, Mr Tinker, he boasted that he had hit the victim and “I wouldn’t be surprised if I fractured his fuckin’ skull” and that he had been committing similar crimes against paedophiles before (an allegation as to which investigating police could find no evidence) (Exhibit VC1, pages 127-162, 229-231). The Defendant told Mr Tinker that he struck the victim to the back of the head and then wet a cloth before suffocating the victim and that there were two young men and two girls in the house when he arrived, but they had left shortly afterwards. The Defendant said that he had wiped down things for fingerprints and removed a wine glass from which he had been drinking.

11. [44]

    To investigating police, the Defendant claimed that it had been a mercy killing of a man given six weeks to live, who had repeatedly asked the Defendant to kill him. The Defendant told similar things to Justice Health nurses following his arrest and claimed to police that he did not believe that the victim was a paedophile.

12. [45]

    In a report of Dr Olav Nielssen, psychiatrist, dated 5 July 1999 prepared for the Defendant’s murder sentencing hearing, the Defendant said that he had travelled to Muswellbrook to try and persuade the victim, whom he suspected of having abused his friend’s child, not to move in with another family with a young child. He said “I didn’t see it as my job to punish people, but the law was about to fail”. He said that he did not intend to kill the victim in that he did not take a weapon to the house (Exhibit VC1, pages 390-393).

13. [46]

    In a report of Anna Robilliard, psychologist, dated 9 May 2000, the Defendant stated that he had known the victim for about 18 months, and that he knew the family in whose house the victim had lived had a three-year old child, whose screaming appeared to the Defendant to be a sign of abuse. He said that he lost control and snapped (Exhibit VC1, pages 373-382).

14. [47]

    In evidence on sentence, the Defendant claimed that his version to Ms Robilliard was the truth. He claimed that he found the victim in a state of sexual arousal when he arrived at the house, in the presence of the children who were visiting. The Defendant has maintained this claim since (Exhibit VC1, pages 364-365, 599-602).

15. [48]

    However, as mentioned earlier, Grove J concluded that the Defendant’s evidence was “embroidered” with the sentencing Judge finding that the Defendant had travelled to Muswellbrook with the intention of killing the victim (see [37] above).

16. [49]

    In his recent conversation with Mr Sheehan, the Defendant maintained the version he had given to Ms Robilliard, claiming that he felt the children were in imminent danger and that it was up to him “to solve the problem” (Exhibit A, paragraph 19).

17. [50]

    The Defendant’s non-parole period of 13 years and six months expired on 17 May 2012. It was not until October 2014 that the State Parole Authority (“SPA”) granted the Defendant parole release.

18. [51]

    The Defendant was released on parole on 17 November 2014. The Defendant was warned not to contact the then 15-year old niece of his victim. Despite this, he established Facebook contact with her (which he denied at the time) and claimed to have heard rumours that she was having a sexual relationship with an older male (Exhibit VC1, page 752). A week later, Kara Thomson, a psychologist with Community Corrections, observed that the Defendant’s “current behaviour is consistent with his offending behaving [sic], where he perceives to be the protector/rescuer for females whom he perceives can’t look after themselves” (Exhibit VC1, page 754).

19. [52]

    The SPA revoked the Defendant’s parole as of 13 February 2015 arising from his breach of conditions flowing from his contact with the niece of his murder victim.

20. [53]

    The Defendant appeared before the SPA on 24 March 2015 with respect to revocation of his parole. Given the significance of the SPA’s determination on that day to the present application, it is appropriate to set out the decision of the SPA as delivered by the Chairperson, the Hon James Wood AO QC (Exhibit VC1, pages 507-509) (the pseudonyms have been used to guard against identification of persons):

21. [54]

    The Defendant remained in custody until his further release on parole on 27 May 2016.

22. [55]

    In a report to the SPA dated 9 December 2015, it was noted that the Defendant had been reluctant to discuss what had caused the breach of parole and appeared evasive during an interview when discussing his involvement with social media (Exhibit VC1, page 516).

23. [56]

    The affidavit of Sarah Gilmour sworn 14 October 2016 notes positive progress for the Defendant in aspects of his current parole. The Defendant has been subject to electronic monitoring as a condition of his current parole.

24. [57]

    The psychological report of Mr Sheehan and the psychiatric report of Dr Chew are of particular significance to the determination of the present application.

25. [58]

    In his report dated 18 November 2016, Mr Sheehan provided the following helpful executive summary (Exhibit A, page 4):

26. [59]

    It is appropriate to refer in a little more detail to aspects of Mr Sheehan’s report. In particular, Mr Sheehan stated that:

27. [60]

    Mr Sheehan referred in his report to the Defendant’s offending Facebook posts whilst on parole in January 2015 and observed (Exhibit A, paragraph 28):

28. [61]

    Mr Sheehan considered that there was some evidence to suggest a personality disorder in that the Defendant would meet the criteria for Antisocial Personality Disorder and may also have traits of Narcissistic Personality Disorder (Exhibit A, paragraphs 38-39).

29. [62]

    In relation to the Defendant’s strong aversion to child sexual abuse and his belief that he was a protector, Mr Sheehan concluded that the Defendant appeared to have benefited from treatment with increased insight, although Mr Sheehan considered gains in psychological therapy concerning the Defendant’s underlying fears and vulnerability “may have great value in arresting the core features of his risk of violence” (Exhibit A, paragraph 49).

30. [63]

    In cross-examination, Mr Sheehan expanded upon his concerns about the Defendant seeing himself as a protector (T24.17-44, 7 December 2016):

31. [64]

    Mr Sheehan conducted risk assessments and concluded that on the Violence Risk Scale (“VRS”), the Defendant was within the medium range, but overall in the medium-to-high risk category of violent offending (Exhibit A, paragraph 83). Mr Sheehan concluded that the risk of a serious violence offence was not generated by contact with child sex offenders generally, but where the Defendant’s relationship with a seemingly vulnerable person intersected with the presence of an identifiable source of perceived threat - the risk is heightened “through the lens of his relationships” (Exhibit A, paragraph 81).

32. [65]

    Mr Sheehan expressed the opinion that an ESO for a period of three years would seem appropriate in the Defendant’s case.

33. [66]

    In his report dated 19 November 2016, Dr Chew noted that the Defendant maintained strong attitudes about child sex offenders, stating that he thought that such offenders were “less than human” (Exhibit B, paragraph 26). Dr Chew noted that the Defendant said that hurting and killing was wrong and that he would leave any matters to the authorities to address.

34. [67]

    Dr Chew noted that persistent violent attitudes, lack of insight and ongoing violent ideation are all empirically validated risk factors contributing to the risk of future violence and that the Defendant’s ongoing attitude did increase his risk somewhat (Exhibit B, paragraph 60).

35. [68]

    Dr Chew considered that the Defendant may fulfil the diagnostic criteria for Antisocial Personality Disorder, although he scored below the cut-off point for psychopathy (Exhibit B, paragraph 61).

36. [69]

    With respect to the Defendant’s risk of reoffending, Dr Chew said (Exhibit B, paragraph 62):

37. [70]

    Dr Chew felt that the Defendant’s insight into his attitudes towards child sex offenders could improve over time with engagement in an appropriate treatment program addressing some core beliefs, whilst ongoing demonstrated compliance with supervision would further reduce the risk of committing a violent offence (Exhibit B, paragraph 62(b)).

38. [71]

    Dr Chew noted that the Corrective Services’ assessment of the Defendant using LSI-R placed him in the medium-high range of risk/needs. The VRS assessment placed him in the medium risk range and Dr Chew scored the Defendant on the VRAG scale and placed him in the medium risk category. Using the OxRec tool, Dr Chew placed the Defendant in the medium risk category.

39. [72]

    Overall, Dr Chew considered that the Defendant appeared to be in the moderate/medium risk category of further violent offences, which included serious violent offences and less serious violent offences. He noted that it is difficult to be more precise about “serious violent offences” and that no empirically validated risk assessments are available to help with prediction of this specificity of type of offence (Exhibit B, paragraph 63).

40. [73]

    Although Dr Chew did not nominate a period for any ESO, he stated that engagement of that type ought be for the medium-to-long term (T39, 7 December 2016). Dr Chew recommended engagement with services and supervision in a gradually reducing regime (Exhibit B, page 32).

41. [74]

    A risk assessment report was prepared by Ms Cieplucha and Ms Danielle Matsuo, psychologist, on 9 March 2016 (affidavit of Vincenzo Camporeale, 30 September 2016, Annexure A). The report was prepared following an interview with the Defendant. It assessed the Defendant’s risk of reoffending as being in the medium-high range with highest treatment needs in the areas of interpersonal aggression, attitudes and cognition (Exhibit VC1, pages 300-301).

42. [75]

    The risk assessment report of 9 March 2016 expressed particular concern with respect to the conduct of the Defendant, referred to in the decision of the SPA with respect to his Facebook account and the characterisation of himself as “The Tea Towel Bandit”. In that report, the Defendant was described as having traits suggestive of a criminal personality, which included a lack of empathy, guilt and remorse, grandiosity and an unrealistic sense of self-worth, in addition to manipulation.

43. [76]

    Ms Cieplucha and Ms Matsuo said in the risk assessment report of 9 March 2016 (paragraphs 78-79):

44. [77]

    The risk assessment report of 9 March 2016 noted a number of tests previously administered to the Defendant. In 2009, he was assessed using the LSI-R test, an actuarial risk instrument that provides an indication of a level of risk of general and violent recidivism within 12 months of release. The Defendant’s score fell in the medium range of risks/needs, with the same result after retesting in 2010. Following the Defendant’s breach of parole in 2015, it was readministered with a medium-high range result.

45. [78]

    An HCR-20 test was administered, this being a structured professional judgment tool with a check list of risk factors specific to violence. The Defendant was found to be in a moderate risk category in 2012 on this test. Further assessments included the VRS, which was administered in 2016. This is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, particularly those being considered for release after a period of treatment. It assesses both static and dynamic risk factors to provide a probability of an individual’s risk for violence. Application of this test found the Defendant’s risk to be within the medium risk range.

46. [79]

    On 2 August 2016, a supplementary risk assessment report considered the psychological report of Ms Gayed in 1994, where the Defendant had been noted to have assaulted others whom he believed had sexually abused children (see [40] above). The risk assessment report noted that this behaviour was consistent with the index offence and was demonstrative of entrenched attitudes, but did not alter the previous assessment of medium-high risk (Exhibit VC1, pages 278-280).

47. [80]

    A risk management report was prepared by Clare McNaughton, Senior Community Corrections Officer, on 22 April 2016 (Exhibit VC1, pages 281-298). The report noted positive aspects of the Defendant’s response to supervision on parole following his release in late 2014, but noted the issues with contact in disobedience of directions and Facebook threats that led to parole revocation. The risk management plan sets out other features which were proposed with respect to the Defendant.

48. [81]

    The Defendant has completed a number of courses and treatment programs including CALM and Getting SMART in 2012.

49. [82]

    In September 2013, the Defendant was offered a place on the VOTP program, but reportedly declined as his classification had previously been reduced to C3 without having to do the program, and he was described as not having expressed interest in restorative justice programs to date (Exhibit VC1, pages 450-456).

50. [83]

    In February 2016, the Defendant was recorded as saying that he did not want to take part in the VOTP or EQUIPS programs in custody as Corrective Services had had a year to offer those programs and it was now too late (Exhibit VC1, page 778).

51. [84]

    The Defendant completed a number of trade courses and vocational certificates whilst in custody (Exhibit VC1, pages 324-334).

52. [85]

    Reference has been made earlier in this judgment to a number of findings made by Grove J in his remarks on sentence (see [35]-[38] above). It is not necessary to repeat them under this statutory heading.

53. [86]

    As counsel for the Plaintiff submitted, the Defendant has been in custody for nearly all of his adult life and significant parts of his adolescence. The age at which the Defendant committed the offence of murder may make it more difficult to predict future violence, however it is relevant to take into account his conduct whilst in custody, his continuing obsession and his conduct when first released to parole in late 2014 when considering this aspect.

54. [87]

    I accept the Plaintiff’s submission that other significant barriers to the Defendant’s progress appear to be his continuing attitude justifying the murder offence, and the need to develop insight into the interplay between his perception of himself as a protector and the danger that that poses for commission of future serious violence offences, in circumstances where he appears to continue to harbour a deep dislike of child sex offenders and to be easily persuaded that certain people may fall within that category.

55. [88]

    Although this statutory factor appears first within s.9(3), it is appropriate to refer to it at the end of consideration of other factors under s.9(3) of the Act. This is because all of those factors, in one way or another, bear upon the safety of the community. It is important to keep in mind that the primary object of the Act is to provide for the capacity to make certain orders so as to ensure the safety and protection of the community (see [13]-[14], [30], [32] above).

56. [89]

    It is appropriate to draw together a number of these factors under this important heading.

57. [90]

    I accept the submission for the Plaintiff that the Defendant’s theme of protector of the vulnerable has manifested itself at different points in his life.

58. [91]

    As early as 1994, the Defendant demonstrated a capacity to assault other persons because of a belief that they had a history of sexual offences against children (see [40] above). The Defendant confirmed to Dr Chew that he had assaulted two sex offenders whilst in juvenile detention (Exhibit B, paragraph 53).

59. [92]

    The Defendant committed murder in 1998 in circumstances where he perceived himself as acting as a protector implementing vigilante justice against the victim for his assumed involvement in child abuse. The Defendant acted upon this attitude, in the gravest way known to the law, thereby taking a human life.

60. [93]

    Whilst in custody in 2010, the Defendant placed a newspaper clipping (reporting his crime) up on display in his cell as a form of “paedophile deterrent” (Exhibit VC1, pages 616-617).

61. [94]

    Of critical importance is the conduct of the Defendant in late 2014 and early 2015 following his release to parole. Despite a warning not to contact the 15-year old niece of his victim, the Defendant established Facebook contact with her. Thereafter, the Defendant set up a Facebook page under the heading “The Tea Towel Bandit” and expressed other views relating to that topic, as outlined in the decision of the SPA on 24 March 2015 (see [52] above).

62. [95]

    A fair reading of the risk assessment report conducted by Corrective Service officers, and of the independent expert reports of Mr Sheehan and Dr Chew, provides a substantial objective foundation for concerns with respect to the conduct of the Defendant in the community without appropriate supervision.

Has the Plaintiff Established that the Defendant is a High Risk Violent Offender for the Purpose of s.5E(2) of the Act?

1. [96]

   It is necessary to address the specific question posed by s.5E(2), which has been described as the gateway through which the Plaintiff must pass before the Court is to consider the making of an ESO (see [26] above).

2. [97]

   At the outset, it is important to acknowledge that the question is not whether it would be desirable for the community and the Defendant that he be subject to supervision in the community following the expiration of his sentence. That is not the question to be considered by the Court. The ESO is not intended to be used as a substitute for parole: State of New South Wales v Sancar [2016] NSWSC 867 at [90].

3. [98]

   It is necessary for the Court to consider whether it is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. However, the Court is not required to determine that the relevant risk is more likely than not in order to make a finding of unacceptable risk: s.5B(3).

4. [99]

   The term “serious violence offence” is defined in s.5A of the Act so as to confine the class to graver forms of offences of violence (see [16] above). It is important to keep this aspect in mind. It is not sufficient to approach the statutory question in s.5E(2) upon the basis whether the Defendant constitutes an unacceptable risk of committing any offences of violence if not kept under supervision: State of New South Wales v Sancar at [86].

5. [100]

   A question arises as to whether the requirements of s.5E may be satisfied in this case where a single very serious crime of violence has occurred. Mr O’Neil sought to rely upon the decision in State of New South Wales v Sancar in this respect. As has been seen, however, the evidence in the present proceedings involves the unusual circumstances of the index offence of murder itself and more recent conduct on the part of the Defendant (in late 2014 or early 2015) which gives rise to concern as to his risk of serious violent reoffending. This case is significantly different from State of New South Wales v Sancar.

6. [101]

   It is important to note that the Applicant has in fact committed murder in the past. Further, the context in which he murdered the victim in 1998 was one involving thought processes and attitudes which have manifested themselves in the Defendant, both before the murder (his 1994 assaults of others in juvenile custody) and since then (his acts in boasting of his reputation, in particular by his Facebook posting and associated comments in late 2014 and early 2015).

7. [102]

   It is true, as counsel for the Defendant submitted, that the 2014-2015 activities did not translate into any acts of violence, let alone serious violence offences. However, the Defendant has committed murder in the past whilst motivated by similar thought processes. Some 16 years later, when the Defendant had emerged from custody and the need to control his conduct was manifest, he acted in a manner which confirmed the continuation of his deep-seated views which had shown themselves, and been acted upon, in a most serious fashion in the past.

8. [103]

   This is a most unusual case. It would be wrong to approach this matter upon the basis of concentration upon a single serious violence offence (murder) committed long ago in considering whether the requirements of s.5E(2) have been met.

9. [104]

   The Defendant has been and remains a complex individual with unusual thought processes with respect to protection of others whom he perceived to be vulnerable. The thought processes upon which he acted at the age of 15 years (in juvenile detention) and again at the age of 19 years (the murder offence) continue and remain current in the Defendant, now 37 years old.

10. [105]

    I have had regard to the various forms of evidence before the Court on this application which address static and dynamic risk factors in the Defendant. In approaching an assessment of the risk of the Defendant committing a serious violence offence in the future, I keep in mind the gravity of offences which constitute the threshold for this category. I have kept in mind, as well, Dr Chew’s evidence that a statistical assessment tool confined to serious crimes of violence does not really exist (see [72] above).

11. [106]

    A person who is minded to carry out acts of violence motivated by vigilante action, with the view to protecting a person whom he perceives as being vulnerable, is likely to use violence and, if necessary, significant intentional violence for this purpose. The Defendant has murdered in the past in this very scenario.

12. [107]

    It is important that an air of practical reality be maintained in approaching the predictive exercise contained in s.5E(2) of the Act. The potential catastrophic consequences of the repetition of the Defendant’s 1998 homicidal conduct should be kept in mind: State of New South Wales v McGrath at [52].

13. [108]

    I accept the Plaintiff’s submission that the Defendant, prior to the murder and immediately after it, exhibited a strong obsession with and an antipathy towards persons whom he believed to be child sex offenders who may place at risk a vulnerable person whom the Defendant protected. That obsession has continued to manifest itself throughout the period of his imprisonment with the Defendant seeing himself as a protector of the vulnerable.

14. [109]

    The Defendant’s obsession with paedophiles has been linked by Mr Sheehan and Dr Chew to risk scenarios where the Defendant has contact with an alleged child sex offender who has potentially offended against someone known to the Defendant. The Defendant’s risk is heightened “through the lens of his relationships”. There is a complex structure of persons and relationships involving the Defendant which has given rise to difficulties in the past. There is a real and tangible prospect of the Defendant adopting his protector role once again with respect to one or other of the persons who constitute the extended group of persons referred to in the evidence.

15. [110]

    My assessment may have been different with respect to s.5E(2) had the Defendant not demonstrated, soon after his release on parole in late 2014, the very attitudes which had set the scene for the murder in 1998.

16. [111]

    The various risk assessments which have been undertaken have involved different levels of risk depending upon the assessment tool utilised. In my view, the most important one in the assessment of medium-to-high level of risk identified in the risk assessment report identified by Ms Cieplucha and Ms Matsuo in March 2016 (see [74]-[76] above).

17. [112]

    The Defendant has been in custody for more than 17 of the last 18 years of his life. The steps which he is presently taking under parole supervision are tentative, although they are displaying some promising signs.

18. [113]

    In all the circumstances of this unusual case, having undertaken the evaluative process required (see [29] above), I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

19. [114]

    The Plaintiff has demonstrated, to the requisite standard, that the matter should proceed through the s.5E(2) gateway to an assessment as to whether an ESO should be set, and if so for what period and subject to what conditions.

20. [115]

    In reaching this conclusion, I have kept in mind that the degree of risk in this instance should be weighed against possible outcomes. Given the Defendant’s use of lethal force in the index offence, there is a realistic and tangible likelihood that any future violence could escalate to the level of a serious violence offence.

Should an ESO be Made in this Case?

1. [116]

   I have expressed my satisfaction that the Defendant is a high risk violent offender as defined in s.5E(2) of the Act. Accordingly, it is open to the Court to make an ESO with respect to the Defendant under s.5F of the Act.

2. [117]

   In determining whether to make an ESO with respect to the Defendant, the Court must have regard to the statutory factors identified in s.9(3) of the Act and to any other matters which it considers relevant. I have set out in some detail the evidence which bears, directly or indirectly, on the various statutory factors under s.9(3) of the Act. I have noted, as well, that these matters bear upon a critical statutory factor, being the safety of the community under s.9(3)(a) of the Act.

3. [118]

   I express my satisfaction that the Court should determine the Plaintiff’s application by making an ESO with respect to the Defendant under s.9(1)(a) of the Act.

Duration of ESO: s.10

1. [119]

   The Plaintiff submitted that an ESO should be made for a period of five years. Although it was acknowledged that Mr Sheehan had proposed a period of three years and Dr Chew had not specified a period other than a medium-to-long term period, Mr Aitken submitted that given the variety of factors in this case, a five-year term should be set.

2. [120]

   Mr O’Neil submitted that, if an ESO was to be made, it ought be of a very short duration. He submitted that an ESO for a period of 15 months would be appropriate in this case, which would constitute a total period of supervision for two years by way of parole or ESO.

3. [121]

   In considering an appropriate term for an ESO, the Court should keep in mind that the purpose of the legislation is protective and not punitive, and that different factors apply to those concerning the determination of a term of imprisonment: State of New South Wales v Tillman [2008] NSWSC 1293 at [57]-[59], [61]-[63]. At the same time, the Court should not be blind to the practical effect of such an order, which will place restrictions upon the liberty of the Defendant in a number of respects: State of New South Wales v Tillman at [60]. The restrictions on the liberty of an individual should be taken into account in determining the term and conditions of an ESO.

4. [122]

   In my view, the evidence of Mr Sheehan is of considerable value on this issue. A period of three years is a substantial one, which will allow the benefits of the ESO to apply to the Defendant as he continues his reintegration into the community. A period of three years is also consistent with the opinion of Dr Chew that a medium or longer term period of supervision is appropriate in this case.

5. [123]

   I am satisfied that the ESO with respect to the Defendant should operate for a period of three years.

Conditions of ESO: s.11

1. [124]

   With respect to conditions, it is necessary to keep in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached. A proper basis needs to be demonstrated for including the conditions: State of New South Wales v Ali [2010] NSWSC 1045 at [88]; Lynn v State of New South Wales at [141]. Although the discretion conferred by s.11 is a broad one, it has to be exercised in conformity with the legislative purpose: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 at 76 [50]. The Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales at 76-77 [53].

2. [125]

   In accordance with usual practice, a set of draft conditions was attached to the Summons initiating the present proceedings. Those conditions have been amended and refined prior to and in the course of the hearing, as a result of evidence given by witnesses and submissions made by counsel.

3. [126]

   I will refer to the various categories of proposed conditions and, where necessary, resolve any contest as between the parties with respect to the appropriateness of those conditions. I will use the paragraph numbers applicable to the settled set of conditions as sought by the Plaintiff at the conclusion of the hearing.

4. [127]

   I propose to impose Conditions 1, 2 and 3 which were not controversial at the hearing.

5. [128]

   Conditions 4, 5 and 6 relate to electronic monitoring. It was submitted for the Defendant that a shorter period ought be fixed for electronic monitoring, namely a period of about six months instead of 12 months under Condition 6.

6. [129]

   I am satisfied that the period of 12 months provided for in Condition 6 is appropriate in this case.

7. [130]

   Conditions 7-10 relate to the use of a schedule of movements. The proposed conditions do not provide for immediate activation of the requirement for a schedule of movements. Rather, what is proposed is that these conditions be put in place, as against the prospect that the conditions may need to be activated as time passes with the Defendant at liberty in the community. The evidence indicates that a schedule of movements may be needed if the Defendant has particular difficulties in reintegrating in the community.

8. [131]

   It was submitted for the Defendant that, if a schedule of movements was not required from the outset, then conditions should not be put in place for its possible use during the ESO.

9. [132]

   I am satisfied that Conditions 7-10 ought be set as part of the ESO. These conditions constitute a flexible aspect of the ESO, which will allow appropriate supervision and assistance to be provided in the event that the Defendant struggles with his ongoing period settling back into the community. In my view, the conditions are reasonable and ought be set.

10. [133]

    Conditions 11-13 relate to the Defendant’s accommodation and are not controversial.

11. [134]

    Conditions 14-16 relate to place and travel restrictions. They are not controversial and, in my view, are reasonable proposed conditions.

12. [135]

    Conditions 17 and 18 relate to the Defendant’s employment, finance and education.

13. [136]

    I note that the Defendant recently lost his employment, but he has demonstrated a strong desire to obtain employment and he will be assisted in this respect by the Departmental Supervising Officer (“DSO”), Mr Dayal. In my view, these conditions are reasonable.

14. [137]

    Conditions 19-21 provide for restrictions upon the Defendant’s possession or use of alcohol and prohibitions upon his possession or use of drugs.

15. [138]

    It was submitted for the Defendant that flexibility was appropriate, in particular with respect to restrictions on possession and use of alcohol. I note in this respect that the conditions are flexible in the sense that the DSO is entitled to permit the Defendant to use alcohol or to enter premises, if considered appropriate.

16. [139]

    I am satisfied that these conditions are reasonable and appropriate.

17. [140]

    Conditions 22-26 provide for non-association by the Defendant with certain specified persons (described by pseudonyms).

18. [141]

    Submissions were made at the final hearing concerning these proposed conditions. Mr O’Neil submitted that it was beneficial if the Defendant was permitted to make contact with one or more of these persons with whom he has had past family and other associations.

19. [142]

    Mr Aitken submitted that associations with one or more of these persons had given rise to difficulties in the past (when the Defendant had assumed his protector role) and that appropriate safeguards were necessary as part of the ESO.

20. [143]

    I have regard to the evidence of Mr Sheehan and Dr Chew on these aspects which, on balance, support the implementation of non-association conditions, but with a measure of flexibility whereby contact may be undertaken with the prior approval of the DSO.

21. [144]

    I am satisfied that these conditions are reasonable and appropriate in the circumstances of the case.

22. [145]

    Conditions 27 and 28 relate to weapons. They are not controversial and ought be fixed in the circumstances of this case.

23. [146]

    Conditions 29-34 are intended to place restrictions upon the Defendant’s access to the Internet and other electronic communication, including social media.

24. [147]

    Mr O’Neil submitted that, whilst scrutiny of social media was appropriate, a broader process of scrutiny of the Defendant’s email accounts may go too far.

25. [148]

    Mr Aitken submitted that the Defendant’s activities on Facebook in late 2014 and early 2015 provided a clear context for conditions of this type. It was submitted that a capacity to consider the Defendant’s email accounts was part and parcel of an appropriate degree of supervision of his social media activities.

26. [149]

    I am satisfied that Conditions 29-34 are both reasonable and appropriate in the circumstances of this case. The Defendant’s activities in late 2014 and early 2015 provide a clear foundation for regulation and supervision in this area. In my view, the proposed conditions constitute a reasonable balance as between the public interest in maintaining supervision of the Defendant and protection of his own privacy.

27. [150]

    Conditions 35-39 relate to search and seizure.

28. [151]

    Submissions were made as to the necessity of provision for a “pat-down search” in Condition 36. It was submitted for the Plaintiff that this condition was appropriate as a means of determining, for example, whether the Defendant had a second mobile phone which he was using for social media purposes.

29. [152]

    I am satisfied that these conditions are appropriate, based as they are upon the reasonable and proper exercise of discretion by the DSO as part of the supervision of the Defendant.

30. [153]

    Conditions 40-44 relate to the Defendant’s personal details and appearance. No submissions were made against these conditions which are not controversial.

31. [154]

    I regard these conditions as being reasonable and appropriate in the circumstances of the case.

32. [155]

    Conditions 45-48 relate to medical intervention and treatment.

33. [156]

    Once again, no submission was made in opposition to these conditions which provide for appropriate flexibility, in particular with respect to attendance by the Defendant at psychiatric and psychological assessments, therapy, support and treatment as indicated by the DSO.

34. [157]

    I regard these conditions as being appropriate and reasonable.

Conclusion and Orders

1. [158]

   The Plaintiff has established that the Defendant is a high risk violent offender for the purpose of s.5E(2) of the Act. I am satisfied that an ESO should be made in this case for a term of three years. The ESO will contain conditions in the final form of the draft conditions as they stood at the conclusion of the hearing on 7 December 2016.

2. [159]

   I make the following orders: