State of New South Wales v Lynn (Final)

1. [1]

   HIS HONOUR: The plaintiff, being the State of New South Wales, commenced proceedings by summons filed on 6 July 2020 against the defendant, Scott Lynn, seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The summons sought interim orders, including orders for the appointment of forensic experts to furnish the Court with reports for a final hearing, and that the defendant be subject to an interim detention order (“IDO”) for a period of 28 days. The application for interim orders was determined by N Adams J in favour of the plaintiff: State of New South Wales v Lynn (Preliminary) [2020] NSWSC 1066 (“the preliminary judgment”).

2. [2]

   By way of final relief, the summons seeks a continuing detention order (“CDO”) for a period of 3 years and, in the alternative, that the defendant be subject to an extended supervision order (“ESO”) for a period of 5 years. The defendant is presently subject to a CDO that was ordered by me on 17 May 2019 for a period of 15 months: State of New South Wales v Lynn (Final) [2019] NSWSC 580 (“the 2019 judgment”). The CDO expired on 16 August 2020 and the IDO has been subject to ordered extensions, the last of which will expire on 13 November 2020.

The background to the application

1. [3]

   In reviewing the material and reports as to the defendant’s criminal, personal and mental health history and mental health and risk assessments that have been tendered by the plaintiff on this application, I will at times repeat or paraphrase summaries of the same material from my 2019 judgment.

2. [4]

   The defendant is aged 44. He has an extensive criminal history dating back to 1991, when he was aged 14. His first matter involving violence was the following year, being assault police.

3. [5]

   In the 2019 judgment, I referred, at [4], to a violent attack that was dealt with in the Children’s Court when the defendant was aged 17. The police facts were:

4. [6]

   The defendant’s first drug offence was for possession of heroin, in 1994 when he was aged 18. His first prison sentence was the same year, for a break, enter and steal.

5. [7]

   The defendant has an extensive criminal record of violence as an adult. In the preliminary judgment, N Adams J referred to an uncontested summary of the defendant’s offending provided by the plaintiff, which had been compiled from past judgments and the defendant’s criminal record. It began with an event in December 1996, when the defendant was aged 20. Her Honour said:

6. [8]

   In the 2019 judgment, at [5], I summarised the index offence as follows:

7. [9]

   The non-parole period for the defendant’s manslaughter sentence expired on 17 February 2011, although he was not released to parole until 17 February 2013, which was to a half-way house for prisoners. Six weeks later, he suffered a heroin overdose and in May 2013, methylamphetamine was detected in his blood. His parole was revoked, and he served the balance of his sentence.

8. [10]

   The plaintiff sought an ISO, which was ordered by this Court two days before the expiration of his total sentence: State of New South Wales v Lynn [2013] NSWSC 1147. The defendant was released on 17 August 2013, conditional upon him residing in a Community Offenders Support Program residence (“COSP”). On 17 December 2013, an ESO was imposed for a period of 3 years, to expire on 16 December 2016: State of New South Wales v Lynn [2015] NSWSC 665. In his judgment, Hidden J reviewed the defendant’s custody disciplinary record, at [24]:

9. [11]

   Thereafter, there were multiple breaches of the ESO by the defendant, which I noted at [10] in the 2019 judgment by reference to an unchallenged summary in the plaintiff’s submissions, as follows:

10. [12]

    I continued, at [11]-[12] of the 2019 judgment:

The defendant’s background

1. [13]

   The defendant was born in Tamworth. He has one sibling, a sister, who is two years older than him. His parents separated, apparently in violent circumstances, when he was aged eight. He resided with his mother until he was aged 13, when he moved in with his father. He has given a history of attending three primary schools and five high schools, finally being expelled in Year 9 for fighting. He obtained his Year 10 Certificate through TAFE.

2. [14]

   When the defendant was aged 18, his father died, according to the defendant, from asbestosis.

3. [15]

   At the age of 14, the defendant formed a relationship with a 15-year-old girl. They had two boys, born in 1992 and in 1997. They cohabited from when he was aged 16 until his partner’s suicide in 1999, when the defendant was aged about 23. Thereafter, their children were cared for by their maternal grandmother.

4. [16]

   The defendant has admitted using cannabis and heroin since the age of about 14, and heroin intravenously for the first time when aged about 17. He also used steroids at about that time. He has admitted to amphetamines being a drug of choice in his teenage years. There is evidence from drug tests that he has used amphetamines in recent years, as well. As already noted, his parole was revoked in 2013 following his use of heroin and methamphetamine.

The defendant’s mental state

1. [17]

   In the 2019 judgment, I referred to the evidence of the defendant’s mental state, as follows:

Provisions of the Act

1. [18]

   The Act relevantly provides as follows:

2. [19]

   A “serious offence” is defined in the Act as follows:

3. [20]

   Sections 5B(a)–(c) and 5C(a)–(c) of the Act oblige the plaintiff to satisfy certain threshold requirements in their respective applications for an ESO or CDO. I note that in Lynn v State of New South Wales [2019] NSWCA 300, Leeming JA (Basten and White JJA agreeing), at [29], concluded that the offence of manslaughter committed by the defendant in 2006, to which he pleaded guilty, was a “serious violence offence” for the purposes of s 5A(1)(a) of the Act.

4. [21]

   The defendant does not contest, and I am satisfied, that ss 5C(a), (b) and (c) are established; the defendant has served a sentence of imprisonment for a serious offence in custody, being the index offence of manslaughter, and at the time of the application, he was serving a CDO. The summons was filed six weeks before the CDO was to expire.

5. [22]

   In relation to an ESO, the term “supervised offender” is defined in s 5I to include an offender who, when the application is made, is in custody pursuant to a CDO: s 5I(2)(b). The defendant does not dispute, and I am satisfied, that he qualifies as a “supervised offender”, by virtue of him being, at the time of the application, in custody pursuant to a CDO: ss 5I(1) and (2)(b).

6. [23]

   The Act requires that an application for a CDO or ESO is to be accompanied by a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing, in the case of an ESO application, a serious offence (s 6(3)(b)), and in the case of a CDO, a further serious offence (s 14(3)(b)).

7. [24]

   The Act provides that applications for a CDO or ESO must be supported by documentation that addresses certain matters, set out in s 17(4) and s 9(3) of the Act, respectively. There is considerable overlap between those provisions.

8. [25]

   The Act stipulates objects and a paramount consideration, when determining an application:

9. [26]

   I note that the power to make a CDO in s 5C is discretionary. The Court may make an order for a CDO if the four prerequisites are satisfied. The matters for consideration pursuant to s 17(4) of the Act

10. [27]

    The determination of a CDO application requires certain material that is identified in s 17(4) of the Act to be taken into account:

11. [28]

    Sections 17(4)(b)-(e1) and (i) are matters that are the subject of reports that have been tendered by the plaintiff. Some of those reports tendered on this application were also tendered in the 2019 application. These include:

12. [29]

    In the 2019 judgment, I noted the following in relation to these reports:

13. [30]

    In November 2019, the defendant indicated his preparedness to participate in the VOTP. He commenced the program on 5 February 2020 and completed it on 13 October 2020. A VOTP treatment report dated 26 October 2020, prepared by psychologist Helen Dimitrios, (“the VOTP Report”) reviewed his performance and made recommendations for future treatment. The report noted mixed results in the defendant’s performance:

14. [31]

    The three urinalysis tests referred to in par (14) of the passage above were negative. At the completion of treatment, the defendant was assessed using the VRS:

15. [32]

    The report cautioned:

16. [33]

    The report considered risk scenarios and management strategies. If the defendant reoffends, it would most likely be a re-engagement in expressive violence in response to perceived provocation or threat due to his increased sensitivity, whereby he often perceives that he is in danger. He may be likely to revert to substance abuse if engaging in “avoidance coping of emotions”. Secondly, the report identified warning signs, which included him spending increased time at home and/or associating with criminal peers at his accommodation, reduced contact with family or professional supports and reduce time spent engaging in leisure activities. The report warned that early intervention is critical, should those signs be observed. Thirdly, although during treatment the defendant showed, on occasions, an intellectual ability to engage in consequential thinking, cognitive restructuring, assertive communication, problem-solving and compromise, as well as emotion regulation strategies, these skills appeared superficial in nature. The report recommended:

17. [34]

    The report concluded that, despite the defendant’s completion of the VOTP, he has criminogenic needs which are likely to affect his risk of reoffending. The report made specific recommendations, some of which were as follows:

18. [35]

    The preliminary application was accompanied by a Risk Assessment Report by Dr Parker, dated 2 June 2020. The defendant declined to be interviewed for the report. Dr Parker noted the defendant’s LSI-R assessment in 2017, that is referred to at [36] of the 2019 judgment, quoted at [29] above, which is a “medium/high risk or general reoffending”. On 6 May 2020, Dr Parker re-scored the defendant on the VRAG-R for the risk of violent re-offending, and arrived at a slightly lower figure of 91 per cent than he did in 2015, which was 94 per cent: see [37] of the 2019 judgment. The defendant remained at a high risk of violent re-offending. Dr Parker referred to a psychologist, Mr Sheehan, scoring the defendant on the VRS in 2013 as “high risk”, and considered there would likely be a “very similar” score if he was re-assessed: see [38] of the 2019 judgment.

19. [36]

    At the time of preparing his report, Dr Parker had available to him the defendant’s VOTP progress notes. At that stage, the defendant had not completed the program and Dr Parker was of the opinion that he was unlikely to do so before the CDO expired. Dr Parker stated:

20. [37]

    Shantelle Hodgkinson, who is a Community Corrections Officer with the ESO Team, prepared a Risk Management Report dated 25 June 2020. In her report, Ms Hodgkinson reviewed the defendant’s criminal history and poor past compliance with conditional liberty and noted that he had been moved to the Long Bay Correctional Centre to facilitate him participating in the VOTP. She stated:

21. [38]

    A COSP provides supervised accommodation for prisoners who are released to the community. The Nunyara COSP is located in the grounds of Long Bay Correctional Centre. Ms Hodgkinson continued:

22. [39]

    The report detailed the risk management plan that the defendant would be subject to, if he is released back into the community subject to an ESO. The plan includes weekly face-to-face interviews at his residence, focused on developing a comprehensive case plan which would include strategies that are relevant to his identified risks. Interviews would focus on monitoring his attitudes, particularly towards his offending behaviour and challenging those attitudes where appropriate to do so. Motivational interviewing techniques would also be applied to encourage him to engage in pro-social community activities and to challenge any criminalised thoughts that he may have, and to encourage him to obtain and maintain a law-abiding lifestyle. There would be scheduled and unannounced home visits, field visits and surveillance at least once per month. Weekly contact would be maintained with third parties involved in his case management and contact would also be established with any person he may commence a relationship with or an employer, should he obtain any form of paid or unpaid employment. The defendant would be referred to the VOTP Program in the community in order to continue maintenance sessions. Contact would be maintained with his treating therapist to confirm his attendance at intervention sessions and to discuss his progress. The defendant would be subject to random and regular drug and alcohol testing to ensure that abstinence is maintained and would be obliged to engage with a treatment provider in order to maintain abstinence from drugs and alcohol, if required, in the community. The risk management plan would be reviewed every two months and updated to reflect any significant changes to the defendant’s circumstances.

23. [40]

    Consequent to orders made by N Adams J in the preliminary judgment, reports have been prepared for the final hearing, pursuant to s 15(4) of the Act, by Dr Katie Seidler, a clinical and forensic psychologist, and Dr Andrew Ellis, psychiatrist. Both reports were written before the defendant completed the VOTP. In a marked change from earlier such commissioned reports, the defendant chose to co-operate with the forensic experts. These reports are now considered.

24. [41]

    Dr Seidler’s first report on this application is dated 21 September 2020. It also pre-dated the defendant’s completion of the VOTP. The defendant cooperated with Dr Seidler’s assessment. She assessed the defendant by Audio-Visual Link (AVL) on 15 September 2020 for a period of two and a quarter hours.

25. [42]

    Dr Seidler noted that during her interview, the defendant demonstrated a number of concerns related to possible neurocognitive problems. These included tangential responding, perseveration, difficulties regulating his thought and responding to limit-setting or structure. She stated:

26. [43]

    Dr Seidler reported that the defendant offered that he intended to source individual substance abuse therapy, if released to an ESO, as a means of assisting him to avoid relapsing into drug use and to cope with the harsh restrictions of an ESO. Having established some stability and routine, he said that he would then focus on sourcing employment and gaining his driver licence.

27. [44]

    Dr Seidler assessed the defendant utilising the VRS, concluding that 39.5 per cent of the Canadian normative sample would have scored similarly to him, yielding a level of risk at the upper end of the medium range, which I note is significantly lower than the VRS assessment reported in the VOTP report. Dr Seidler added:

28. [45]

    Dr Seidler also applied the HCR-20 v3, which suggested that the defendant poses a high risk of future violence. Dr Seidler noted that this result accorded with previous assessments utilising the same instrument by Dr Collins and Dr Furst. She also assessed the defendant with the LS/CMI, which indicated a high risk of future violence. Dr Seidler assessed the defendant’s protective factors with the SAPROF and concluded that he had few protective benefits.

29. [46]

    Dr Seidler concluded, as to the defendant’s risk of offending:

30. [47]

    Dr Seidler agreed with earlier diagnoses of Antisocial Personality Disorder and Substance Abuse and Dependence. As to the likely circumstances of future violent offending, she stated:

31. [48]

    Dr Seidler commented on whether the risk posed by the defendant of committing a further serious offence could be managed in the community under an ESO:

32. [49]

    Dr Seidler was of the view that a CDO could only offer the defendant the opportunity to continue to engage in the VOTP:

33. [50]

    As to appropriate conditions for release pursuant to an ESO, Dr Seidler cautioned against conditions being too rigid:

34. [51]

    Dr Seidler also expressed reservations about the need for disclosure to be made to others about the defendant’s criminal history, noting that there is no evidence that such disclosures are relevant to risk management in any tangible way and that they can be traumatic, stressful and distressing for lay people, “as they do not have the skills or training to understand the import of such information nor cope with such disclosures”.

35. [52]

    Dr Seidler prepared a supplementary report dated 28 October 2020, in light of the defendant’s completion of the VOTP. She reviewed it and concluded:

36. [53]

    Dr Ellis’ first report on this application is dated 30 September 2020. He diagnosed the defendant as having an antisocial and avoidant personality disorder and a substance use disorder, particularly for opioids and stimulants. As to the defendant’s likelihood of violent reoffending, Dr Ellis stated:

37. [54]

    Dr Ellis elaborated on such specific treatment, stating:

38. [55]

    Dr Ellis was of the opinion that programs that are run by trained mental health professionals and which adhere to cognitive behavioural principles are more likely to show positive changes than VOTP-type programs. He concluded that further detention in custody to complete a program is not likely to alter the defendant’s risk profile.

39. [56]

    Dr Ellis elaborated on why, in his opinion, a community-based program for the defendant was likely to yield better outcomes that continued custody-based programs:

40. [57]

    Dr Ellis was of the view that a neurological physical examination and neuropsychological examination were appropriate. He said:

41. [58]

    Dr Ellis wrote a supplementary report dated 30 October 2020, in response to the VOTP report. He concluded:

42. [59]

    Other matters required to be considered pursuant to s 17(4) are as follows:

43. [60]

    In relation to s 17(4)(e2), the plaintiff relied upon the reports already considered, in particular, the defendant’s record of poor past compliance with the conditions of an ESO. As to s 17(4)(h), the defendant’s criminal history was canvassed earlier in this judgment. In relation to s 17(4)(h1), I have noted some of the observations of Hidden J, who was the sentencing judge: R v Lynn [2008] NSWSC 1122.

The parties’ submissions

1. [61]

   The plaintiff submitted that the VOTP Report found the defendant’s participation in the VOTP to be “significantly lacking”. When the report is considered together with the supplementary reports of Drs Seidler and Ellis, there was no basis beyond what was available before the VOTP report was written for the Court to conclude that the defendant has addressed his risk factors so as to justify release into the community. The plaintiff submitted that in Dr Seidler’s supplementary report, she mistakenly refers to the plaintiff’s application being for an ESO.

2. [62]

   The plaintiff acknowledged Dr Ellis preference for an ESO but submitted that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept in detention or under supervision, and that the appropriate order is for a CDO of 3 years’ duration.

3. [63]

   The defendant opposes an order for a CDO but would accede to an order for an ESO, if it was of relatively brief duration of “no more than 3 years duration”, so as to provide an incentive to comply with the inevitably tough conditions that would be attached to it.

Consideration

1. [64]

   In considering the plaintiff’s application, I am conscious of ss 3, 5D and 17(2) of the Act.

2. [65]

   I am also conscious that, in spite of the amendments to the Act in 2017, which removed an express requirement that, before the Court could make a CDO, it had to be satisfied that adequate supervision would not be provided by an ESO, a consideration of whether an offender could be safely placed in the community subject to an ESO remains a general consideration, pursuant to s 17(4)(e1) and (e2).

3. [66]

   I accept the evidence to the effect that the progress that has been made by the defendant whilst in custody consequent to the previous CDO is limited. As Dr Seidler opined, the defendant is still at the “pre-contemplation stage of change”: see [44] above. However, when that modest progress is considered in the context of the defendant’s history, it is encouraging. There are significant improvements in the degree of the defendant’s co-operation and participation in programs in recent months compared to the lead-up to the 2019 application.

4. [67]

   The defendant co-operated with Drs Ellis and Seidler in the preparation of their reports and interacted well with the VOTP staff. I note Dr Ellis’ observation that, in light of the defendant’s improved interactions with Corrective Services staff, if he is released back into the community subject to an ESO, more positive interactions with supervising staff could be expected, at least in the important initial period.

5. [68]

   The defendant participated in, and completed, the VOTP which, for this particular offender, I regard as a significant achievement. Moreover, for the duration of the program, he did not return any negative urine test samples or incur disciplinary matters.

6. [69]

   From the perspective of the defendant’s level of risk of committing a further serious offence, there is clearly a long way to go. However, I accept the opinion of Dr Ellis, that at this stage of the defendant’s treatment, further progress is best achieved by the defendant returning to the community, subject to appropriate conditions to protect the community, and with the benefit of the type of therapy and assessments that have been recommended by both him and Dr Seidler.

Conclusion

1. [70]

   For these reasons, pursuant to s 5C(d) of the Act, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept in detention. Pursuant to s 5B(d) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Accordingly, I will make an order for an ESO.

2. [71]

   The appropriate duration of the ESO is 18 months. This provides an incentive for the defendant to quickly engage in a positive fashion with the assessments and therapy that will be provided to him. Equally, it allows the plaintiff a reasonable period of time in which to gauge the defendant’s progress, so as to make a judgement as to whether a further ESO should be sought after that time.

Conditions of the ESO

1. [72]

   The parties have sensibly negotiated proposed conditions to an ESO, in the event that I determine to make such an order. I approve the changes that they have agreed, and have made determinations to those which remained the subject of dispute.

Recommendations

1. [73]

   In my opinion, it is in the interests of the safety of the community that the defendant receives the precise types of treatment and assessment when he is released back into the community recommended by Drs Ellis and Seidler. The terms of the conditions under Part M of the conditions (“Medical intervention and treatment”) are sufficiently wide for the defendant to receive cognitive behavioural therapy as recommended by Dr Ellis, and a physical and neuropsychological assessment of the types recommended by both Drs Ellis and Seidler. In my view, it is critical that these services be provided, and equally, that the defendant be obligated to comply with them, on pain of being returned to custody.

2. [74]

   The defendant’s case is one where there is a close coincidence of needs between the safety of the community and the rehabilitation of the defendant. The expert evidence that has been tendered on the application is to the effect that, if the defendant is to make progress with the reduction of his level of risk of committing a serious offence, it will be by him receiving appropriate one-on-one treatment in the community, subject to an ESO. It is appropriate, indeed necessary, for the defendant’s DSOs to read [42], [53], [54], [55] and [57] of this judgment and, ideally, the full reports of Drs Ellis and Seidler, so as to appreciate why their proposals for assessment and treatment are central to the reduction of the risk of the defendant committing a further serious offence.

Orders

1. [75]

   I make orders as follows:

   1. (1)

      The defendant is subject to an Extended Supervision Order for a period of 18 months, subject to the attached conditions.

   2. (2)

      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.

   3. (3)

      The defendant is to provide written submissions regarding costs by email to chambers by 5:00pm Thursday 19 November 2020;

   4. (4)

      The plaintiff is to provide written submissions in reply by email to chambers by 5:00pm Thursday 26 November 2020.