State of New South Wales v SLD (Preliminary)

1. [1]

   HIS HONOUR: By a summons filed on 4 November 2024, the State of New South Wales (the plaintiff) seeks interim and final orders against SLD (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   Preliminary orders are sought for the appointment of two psychiatrists and/or psychologists, or one psychiatrist and one psychologist, to examine the defendant, for the defendant to be directed to attend their examinations, and for their reports to be furnished to the Court pursuant to s 15(4) of the Act. The plaintiff also seeks an interim detention order (IDO) for a period of 28 days, pursuant to ss 18A, 18C and 20(1) of the Act. An order is sought, pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the defendant shall be identified in relation to these proceedings by the pseudonym "SLD". Orders are also sought forbidding access to the court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. [3]

   The plaintiff seeks final orders that the defendant be the subject of a continuing detention order (CDO) for a period of 1 year, pursuant to ss 5C and 17(1)(b) of the Act.

4. [4]

   The defendant is currently the subject of an extended supervision order (ESO) imposed under the Act, which is suspended due to the defendant being in custody. On 17 December 2024, following the hearing for the preliminary orders sought, I made orders which included an IDO. These are my reasons for making those orders.

The procedural history of this application

1. [5]

   There was a degree of urgency in hearing this application for an IDO, arising from the recent procedural history of the matter. The defendant was the subject of an ESO made by Campbell J on 18 August 2023 for a period of 5 years from that date: State of New South Wales v SLD (Final) [2023] NSWSC 978. At that time, the defendant was in custody, bail refused, for outstanding offences of breaching conditions of an interim supervision order (ISO) made by me, committed in June and July 2023 (the ISO breach offences). He was released back into the community on 20 September 2023.

2. [6]

   On 24 October 2023, the defendant was arrested and charged with three offences of breaching a condition of his ESO. Bail was refused. Following a judge alone trial in the District Court, on 16 October 2024, he was acquitted of two of the offences and convicted of one (the ESO breach offence): R v SLD (No 3) [2024] NSWDC 480.That matter was adjourned for a sentence hearing to 12 December 2024. On 16 December 2024, he was sentenced to imprisonment for 1 year and 6 months, backdated to commence on the date of his arrest on 24 October 2023 and thus expiring on 23 April 2025. A non-parole period of 1 year and 1 month was set, which expired on 23 November 2024: R v SLD (No 4) [2024] NSWDC 594.

3. [7]

   On 3 April 2024, the defendant was charged with a count of stalking, harassing or intimidating a law enforcement officer in the execution of the officer’s duty, contrary to s 60A(1) of the Crimes Act 1900 (NSW); and a count of stalking, harassing and intimidating a person with whom a law enforcement officer has a domestic relationship, contrary to s 60B(1) Crimes Act (the intimidation charges). Those matters were listed for hearing at the Wollongong Local Court on 17 October 2024. Judgment was reserved, to be delivered on 5 December 2024. On that date, the defendant was acquitted of those charges.

4. [8]

   On 3 December 2024, the hearing for preliminary orders came before Garling J. His Honour was cognisant that the sentence for the ESO breach offence and the judgment concerning the intimidation charges were outstanding and that both would be resolved within a week. Accordingly, since there was a prospect of the defendant being imminently subject to a further sentence of imprisonment, his Honour made an IDO for a period of a week commencing on 12 December 2024 and expiring on 18 December 2024. A further hearing of the summons was stood over to 17 December 2024: State of New South Wales v SLD [2024] NSWSC 1595, thus occasioning some urgency to a hearing of the plaintiff’s application for an IDO.

The relevant statutory provisions and principles

1. [9]

   Section 18A of the Act provides as follows:

2. [10]

   Section 18A(b) requires consideration of the legislative requirements for a CDO or an ESO. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of a CDO, pursuant to the relevant statutory test. Section 5C of the Act provides:

3. [11]

   I am satisfied that the statutory preconditions in s 5C(a)-(c) to the making of a CDO are satisfied. In relation to s 5C(a), a “serious offence” is defined to include “a serious violence offence” (s 4 of the Act) which, in turn, is defined to include an offence causing the death of a person (s 5A(1)(a) of the Act). The defendant has previously been convicted and served a sentence of imprisonment for the offence of murder. The plaintiff submits that s 5C(b) and (c) are satisfied by virtue of the defendant being a supervised offender, as defined in s 13B(4)(a)(i) or (b) of the Act. I note that the defendant does not contest the applicability of these provisions and I am satisfied that the application complies with them.

4. [12]

   The issue that remains for consideration is therefore whether, the matters alleged in the supporting documentation, if proved, would satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order. Section 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

5. [13]

   Section 17(2) provides that in determining whether to make a CDO, the safety of the community must be the paramount consideration, which is consistent with the “primary object” of the Act, outlined in s 3(1), being the “safety and protection of the community”. A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

6. [14]

   The defendant submits that, although it would be open to the Court on the material before it to conclude that if it were proved, it would justify the making of an ESO or CDO, the Court should exercise the discretion that arises from the terms of s 18A to not make an IDO.

The defendant’s background

1. [15]

   I have previously reviewed the material concerning the index offence at [14]-[23] in my judgment concerning the preliminary hearing of a summons seeking the ESO in 2023, in which, on 5 April 2023, I ordered an ISO: State of New South Wales v SLD (Preliminary) [2023] NSWSC 330:

2. [16]

   In the same judgment, I reviewed the material concerning the defendant’s subsequent offending and concerning behaviour while in custody until that time, at [24] to [29].

Subsequent offending behaviour by the defendant

1. [17]

   The defendant was released into the community on 17 April 2023, subject to the ISO. He resided at a Community Offender Support Program Centre (COSP) which is a type of supervised accommodation operated by Corrective Services NSW. On 30 May 2023, a routine search of his mobile phone and tablet revealed that he had breached a condition of the ISO to not use any coded or encrypted messaging application or service, by having downloaded a search engine that allowed users to search online in incognito mode. It was also noted that the Google and YouTube search history functions had been turned off and the auto delete action was turned on. The following day, he was issued with a formal warning in relation to the breaches.

2. [18]

   On 2 June 2023, another search disclosed that on 31 May 2023, the defendant had accessed and used two encrypted apps and received an email from a social networking application that indicated he was registered with them. He was arrested and charged with an offence of failing to comply with the ISO. He was also charged with a further failure to comply, for entering the room of a fellow inmate without permission, but that charge was later dropped. At the time of his arrest, he had been back in the community for about 6 weeks. He was released to bail on 28 June 2023.

3. [19]

   The defendant was arrested and charged with two further ISO breaches on 11 July 2023, for which he was bail refused. One was possessing a razor blade, and the other was threatening self-harm so as to impede his supervision. The allegations are described in a “Joint Statement of Agreed Facts” (the Agreed Facts), that was tendered at the hearing, as follows.

4. [20]

   As noted, on 18 August 2023, while the defendant was on remand for these charges, Campbell J ordered an ESO.

5. [21]

   On 20 September 2023, the defendant received concurrent 12-month CCOs in respect of the ISO breach offences, to commence on that date, and was thus released back into the community.

6. [22]

   The defendant was charged with further offences, arising from alleged breaches of his ESO conditions, on 24 October 2023. He was arrested and refused bail; he has been in custody since then. On that date, he attended Bulli Beach with his disability support worker. The defendant walked along a footpath area towards a public shower area at Bulli Beach. A woman had showered her 15-month-old son at an outdoor shower and was dressing him. The woman gave evidence that the defendant approached her and asked her if she knew how to turn the foot tap on. He then engaged in a conversation with her about her child, asking if he was speaking yet and, apparently noticing spots on his skin from mosquito bites, asking if he had chicken pox, and asking whether “his dad [was] around?” He then walked back toward his disability support worker and left that area.

7. [23]

   An off-duty Community Corrections Officer, who I will refer to as witness X, noticed the defendant, who was wearing an ankle bracelet, speaking to the woman, and apparently approaching other women. He contacted police who attended and arrested the defendant.

8. [24]

   The defendant was charged with two other offences arising from the same incident and opted for a trial by judge alone. He did not dispute the woman’s evidence but denied that he intended to “associate” with the child, as he understood that word within the relevant ESO condition, which was in the following terms:

9. [25]

   ‘Associate' was defined as including, but not limited to: –

10. [26]

    The trial judge, Fitzsimmons SC DCJ, found that the offence was not a strict liability offence and that the defendant was guilty. The defendant was acquitted of the other two charges.

11. [27]

    As noted, the defendant was sentenced on 16 December 2024 to a backdated prison sentence, so that he is presently on parole until 23 April 2025. When sentencing the defendant, his Honour remarked at [7]-[10]:

12. [28]

    As noted, on 3 April 2024, the defendant was charged with the intimidation offences. The Agreed Facts state the following:

13. [29]

    Following a hearing in the Local Court, the charges were dismissed on 5 December 2024. A transcript of the Magistrate’s findings was not available, but the defendant was represented at the hearing in the Local Court by the same counsel who appeared for him at the hearing of this application. It was accepted by the parties that the defence in the Local Court hearing had not disputed that the alleged words were said and written by the defendant. The charges were dismissed on the basis that the alleged intimidatory statements had not been made directly to the alleged victims, and thus the element of intent had not been satisfied to a criminal standard.

14. [30]

    For the purposes of this application, the plaintiff relies upon multiple instances of the defendant making intimidatory statements concerning the same alleged victims which were canvassed in the Agreed Facts, in excerpts reproduced from the defendant’s Offender Integrated Management System (OIMS) notes. According to these records, in the same conversation in which the threat noted at [28] above was made, the defendant maintained that he was not merely venting frustration, but rather was “very serious”, that he had been planning it and thinking about it daily. Prior expressions of a desire to harm witness X and/or his family were recorded in the OIMS notes on 6 December 2023 (“veiled threats to harm [witness X]”), 29 January 2024 (“feeling a lot of anger towards [witness X]”), 13 February 2024 (“he wanted to ‘retaliate and ‘get revenge’ on the people that placed him in jail’”) and 16 February 2024 (“He also vowed revenge against those who have falsely charged him”). Subsequent such expressions were recorded on multiple occasions. Some of these were on 5 March 2024 (“still holds revenge fantasies about [witness X] who got him arrested”) and 15 April 2024 (“mentioned that he would obtain the address or the general whereabouts of [witness X’s] residence once an AVO was granted”).

15. [31]

    The defendant’s obsessive focus on witness X appeared to relax from around March and April 2024. An OIMS note by his psychologist, dated 11 April 2024, states that “revenge focus seems to have faded somewhat/morphed into legal revenge through the court system, compared to earlier interviews.” However, the defendant continued to express a desire to physically harm others, defined by gender, age or occupation, or simply to engage in types of personal violence. There were equally disturbing admissions of threats and troubling ruminations by the defendant, a constant theme being the perpetration of extreme violence.

16. [32]

    Another troubling aspect of the defendant’s disclosures of his thinking is in an OIMS note dated 21 April 2023, which reports that he claimed to Dr Richard Parker, who is the acting chief psychologist of Risk Management Programs in Corrective Services NSW, that his motive for the murder was to exact revenge. I note there is no evidence of this claim having been investigated, so I allow for the possibility that it was a fanciful claim.

The risk assessment report

1. [33]

   The defendant relies upon a risk assessment report dated 12 September 2024 of Samuel Ardasinski, who is a senior psychologist with the High Risk Offenders section of Corrective Services NSW. The report is counter-signed by Dr Parker, who states that he supports the recommendations in the report.

2. [34]

   The report is accurately summarised in the Agreed Facts as follows.

Consideration

1. [35]

   As noted, the defendant submitted that the Court should exercise its discretion, that arises from the terms of s 18A of the Act, to not make an order for an IDO even though the statutory preconditions are established, because the defendant will be subject to his current ESO upon release, which, by its stringent suite of conditions, eliminates an unacceptable risk of the commission of a serious offence.

2. [36]

   I accept that the breach of the defendant’s ESO on 24 October 2023 at Bulli beach was towards the lower range of objective seriousness and may well have occurred as a result of the defendant’s lack of understanding about the fact that the ESO condition that he not “associate” with children operated to prohibit him from conversing with a child’s parent about the child in the child’s presence.

3. [37]

   The real concern, in my view, are the threats that the defendant has repeatedly made since then, to harm specific persons or categories of persons. It is concerning that Mr Ardasinski’s report did not canvass, or offer an opinion about, the defendant’s reported threats and ruminations on the use of violence. I am not critical of Mr Ardasinski for not doing so; at the time of his report, the District Court trial was on foot. From the perspective of these proceedings, however, the fact remains that the Court is left with only one recent forensic assessment of the defendant, which is supported by his treating psychologist, which does not canvass the single-most concerning aspect of the defendant’s recent behaviour, namely, his repeated threats against witness X, and other troubling admissions of thoughts of inflicting violence against others.

4. [38]

   It would have been helpful for the Court to have the benefit of a report from the defendant’s treating psychologist for many years, Dr Parker. However, there may be good reasons for there not being a report from him.

5. [39]

   On the basis of the disclosures made by the defendant which I have noted above, in the context of the defendant having previously carried out acts of extreme violence, I was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO. In so concluding, I note that the bar for making a CDO is that the Court must be satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.

6. [40]

   I declined to exercise the discretion to not make an order for an IDO in the absence of forensic evidence that considers the degree of risk to the community that arises from the defendant’s disclosures about violence.

7. [41]

   As noted, the defendant’s disclosures were central to my determination, and I imagine they will be of some focus in the final hearing. For that reason, I made a recommendation to the effect that the plaintiff give consideration to obtaining a report from Dr Parker.

Orders

1. [42]

   On 17 December 2024, I made the following orders:

   1. (1)

      Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW),

   2. (2)

      Pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be subject to an interim detention order for a period of 28 days commencing on 18 December 2024.

   3. (3)

      Pursuant to s 20(1) of Crimes (High Risk Offenders) Act 2006 (NSW), a warrant is to be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order.

   4. (4)

      Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant is to be identified in relation to these proceedings by the pseudonym "SLD", and such order shall apply:

   5. (5)

      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 of access.

Recommendation

1. [43]

   Further, I recommended that the plaintiff consider obtaining and serving a report from the defendant’s treating psychologist, Dr Richard Parker, for the final hearing in this matter.