State of New South Wales v Sines (No 3)

1. [1]

   WILSON J: On 21 July 2017 the Court heard an application from the State of New South Wales for the imposition of an extended supervision order (“ESO”) upon the defendant, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The matter had earlier been before the Court for preliminary orders: State of New South Wales v Sines [2017] NSWSC 592; State of New South Wales v Sines [2017] NSWSC 890. This judgment assumes familiarity with those decisions.

2. [2]

   The Amended Summons filed by the State (relevantly) seeks the following orders:

3. [3]

   The focus of the parties at the hearing before me was not on whether evidence existed such that the Court would be persuaded to make an ESO, but rather on the conditions and duration of any such order. The defendant conceded that:

   1. (1)

      The offence for which he was sentenced on 16 December 2010 meets the definition of a “serious violence offence” pursuant to s 5A(3)(a) of the Act.

   2. (2)

      For the purposes of s 5E(2) and s 5J he is a “high risk violent offender” who poses an unacceptable risk of committing a serious violence offence if not kept under supervision.

   3. (3)

      The “threshold criteria” for the making of an ESO have been met. (See also [23] – [24], State of NSW v Sines [2017] NSWSC 592.)

The Statutory Scheme

1. [4]

   Section 5E of the Act provides:

2. [5]

   The terms “high degree of probability” and “unacceptable risk” are not defined in the legislation. Their meaning must be determined in the context of the objects of the Act, set out in s 3:

The Evidence before the Court

1. [6]

   In addition to the evidence tendered in support of the State’s application in May 2017, which is summarised in State of NSW v Sines [2017] NSWSC 592, the Court had the benefit of other evidence, both written and oral. Although it is not intended to refer to every report or other document in evidence, the most significant evidence is set out below.

2. [7]

   In evidence were reports from Dr Yolisha Singh, and Patrick Sheehan, the Court appointed experts, together with oral evidence from Mr Sheehan. Further, the State relied upon evidence from Amanda Carden, the defendant’s supervisor (pursuant to the Interim Supervision Order imposed on 4 July 2017) since his release to the community at the expiration of his sentence on 10 July 2017.

3. [8]

   The defendant tendered evidence from his solicitor, Tracy Reynolds, which went to the circumstances of his accommodation since his release to the community, and educative and other courses undertaken by him.

4. [9]

   Dr Singh is a forensic psychiatrist. She saw the defendant on 24 June 2017 for the purposes of a clinical interview, and had access to all relevant documentary material. She prepared two reports, of 30 June 2017 (Ex. 1) and 19 July 2017 (Ex. 1A).

5. [10]

   Dr Singh took a history from the defendant, and concluded that he endorsed symptoms consistent with a diagnosis of major depressive disorder, panic disorder, substance use disorder (alcohol and cannabis), and an antisocial personality disorder. She observed that:

6. [11]

   The doctor set out the defendant’s personal and criminal history, and noted the rehabilitative and other programmes that the defendant had undertaken, both in custody and in the community, including recently the Violent Offenders Therapeutic Programme (“VOTP”), commencing in April 2016. She thought that he showed “emergent insight” into the events that led to violent conduct and substance misuse, and had the capacity to articulate strategies to reduce the likelihood of such conduct occurring in the future (p.12, Ex. 1).

7. [12]

   Dr Singh carried out a structured risk assessment, using the Historical Clinical Risk Management-20 Version 3 tool. Referring to the defendant’s consistent history of personal violence and anti-social conduct, drug and alcohol use, relationship instability, chronic unemployment, violent attitudes, and his failure to respond to supervision, together with his anti-social personality disorder, Dr Singh concluded that the defendant “has a high loading of historical risk factors associated with violence in the longer term” compared to the general prison population (p.13, Ex. 1).

8. [13]

   Whilst the defendant displays some insight into his propensity for violence, Dr Singh noted that the defendant had a history of expressing motivation to address his difficulties, but without achieving change. She thought that the sort of sustained insight required to motivate long term change had not been demonstrated. A recent assault on a fellow inmate in custody suggests that irritability and impulsivity leading to violence remain problematic.

9. [14]

   Dr Singh concluded that the defendant falls into the high risk category of persons with an elevated future risk of physical violence. She opined that an ESO would adequately manage his risk of committing a further violence offence, and that the conditions proposed for such an ESO [which did not at that time include any reference to electronic monitoring] were comprehensive. As to the duration of an ESO Dr Singh said:

10. [15]

    The five year period should comprise 12 months of residential drug and alcohol interventions; 24 months to consolidate stable accommodation and employment, and to promote appropriate personal supports; and a further 24 months of regular employment, “psycho-social interventions”, and monitoring of treatment response.

11. [16]

    In her second report Dr Singh specifically addressed the issue of electronic monitoring at the request of the State, concluding that the addition of a condition requiring electronic monitoring was appropriate. She observed:

12. [17]

    The period suggested for electronic monitoring was one of 12 months, a period in which the doctor regarded the defendant as especially vulnerable, having regard to his history of rapid relapse into criminality upon release from custody.

13. [18]

    Mr Sheehan is a forensic psychologist who prepared two reports for the Court, of 26 June 2017 (Ex. 2) and 17 July 2017 (Ex. 2A). He also gave oral evidence on 21 July 2017.

14. [19]

    Mr Sheehan saw the defendant on 21 June 2017 prior to his release from prison (on 10 July 2017). Like Dr Singh, he was comprehensively briefed with written material. A personal history was obtained from the defendant, with Mr Sheehan noting that:

15. [20]

    In custody, the defendant incurred some 49 institutional misconducts over the whole period of his incarceration, with 7 during the sentence served for the index offence. The last such offence was an assault upon another inmate with a broom, in February 2017.

16. [21]

    Response to supervision in the community has been historically poor. As recently as November 2016 the defendant had asserted that he did not like being supervised, and “does not like taking or following orders from anyone” (p.13, Ex. 2).

17. [22]

    Although Mr Sheehan noted the courses and rehabilitative programmes that the defendant had successfully completed, he observed that the defendant’s

18. [23]

    Overall, Mr Sheehan found:

19. [24]

    Employing actuarial tools to assess risk, Mr Sheehan concluded that the defendant falls within the high risk category of violent offending relative to other adult male offenders. He thought supervision was necessary to manage the risk, noting that the proposed conditions of supervision [which did not initially include electronic monitoring] were useful to attenuate risk. His only reservations with respect to the conditions as initially proposed were with respect to conditions relating to employment, finance, and education, regarding these aspects of the defendant’s future as best dealt with through case management rather than specific conditions of conduct; and with search and seizure powers, regarding those as potentially disruptive to rehabilitative progress.

20. [25]

    As to duration Mr Sheehan opined:

21. [26]

    In his later report Mr Sheehan addressed the question of electronic monitoring, at the request of the State. He observed that there may be a case for electronic monitoring, as both an added disincentive to engaging in unacceptable behaviour and as a means of reducing response time in the event of absconding. He did, however, express some reservations about the introduction of electronic monitoring at a late stage of the proceedings, and after the defendant’s release to the community without such monitoring. He said:

22. [27]

    In his evidence of 21 July 2017 Mr Sheehan suggested that, if electronic monitoring was imposed, a short period of 6 months may serve a useful regulatory purpose without undue adverse impact upon the defendant’s participation in the supervisory regime more generally.

23. [28]

    However, he expressed some reservations about the benefits of electronic monitoring, particularly in circumstances where it was not originally sought as a condition of the order, only being sought at a late stage. Mr Sheehan noted that whilst experientially there was some reason to conclude that electronic monitoring could serve to interrupt behaviour that might lead to offending, there was limited empirical evidence for its efficacy, with research data presenting as “ambiguous” (T4:40 of 21 July 2017). He deposed (at T5:06- 16),

24. [29]

    Referred to evidence which suggested that the defendant’s wish and perhaps intention was to leave Sydney and return to Kempsey, where he would be thrown in with friends and associates who used drugs and alcohol and regarded violence as normal, Mr Sheehan said,

25. [30]

    Mr Sheehan regarded the conditions that apply to the defendant’s proposed future accommodation at Glebe House in Glebe as an adequate means of monitoring the defendant.

26. [31]

    As to powers of search and seizure, Mr Sheehan expressed some concern that the use of such powers could be counter-productive, by reinforcing a feeling of otherness that is not helpful to rehabilitation. He said (at T10:49 – T11:04):

27. [32]

    As to duration of any ESO, Mr Sheehan regarded 3 years as the minimum period for an order, with one potential benefit of a period shorter than 5 years being the incentive it provided to the defendant to comply with and complete the order:

28. [33]

    Referring to records and reports held by the Department of Corrective Services, Ms Carden noted that, as late as 13 June 2017, the defendant’s stated intention upon being released from custody was to return to the mid-north coast area, and not to remain in Sydney, regardless of the terms of any ESO that might be imposed upon him. His most frequently stated wish was to go home to Kempsey and live in that area with family.

29. [34]

    In May 2017 the defendant was assessed as suitable for admission to Glebe House rehabilitation facility upon his release. The following month he was told that he would not be permitted to return to Kempsey at the expiration of his sentence if subject to an Interim Supervision Order, but would be required to remain in Sydney and engage in a rehabilitation programme. On 7 July 2017, after the imposition of the interim order and before his release from custody, the defendant was given a direction as to reporting following release.

30. [35]

    On his discharge from prison, the defendant was taken by Ms Carden to Glebe House. Glebe House offers a structured abstinence based programme to assist men with addiction. The defendant was prohibited from returning to Kempsey, or from contacting his former partner and victim of the index offence. Local police had advised Ms Carden that, if the defendant in fact returned to Kempsey, it would be very difficult to find him there.

31. [36]

    Supervision of the defendant’s movements has been provided by staff of Glebe House. In the first two weeks of his stay at that facility, the defendant has not been permitted to leave the premises without a supervisor or “buddy” accompanying him. After the two week period, the defendant will be able to go out unsupervised, but he is required to be present for meals and other scheduled activities, thus providing an opportunity to monitor his movements to some degree.

32. [37]

    Notwithstanding that structure, Ms Carden expressed her concerns that, without electronic monitoring, the defendant would abscond to Kempsey, and potentially contact his ex-partner, who lives in the area. She considered that only with such monitoring could the risk of travel to Kempsey, or attending licensed premises, be managed.

33. [38]

    Ms Reynolds made inquiries of the nature of the programme and supervision available to residents of Glebe House prior to the defendant’s admission there, and following it. The programme has 12 steps and is directed to men with a risk of re-offending. Around the time of the defendant’s admission seven men were in residence. It is an abstinence based programme designed to help residents move into the community. Staff are present 24 hours a day, and the defendant has a Case Manager to assist him.

34. [39]

    During the twelve weeks of the Glebe House programme the defendant is subject to a curfew each night, and is required to attend regular meetings each day to address addiction issues. He is also required to engage in counselling with a psychologist weekly. Random urinalysis is carried out, with the defendant returning a negative result relevant to the one test to which he had been subjected as at 18 July 2017. The longest period during which an absence would not be noted by staff is three hours.

35. [40]

    After the initial 12 week period spent at Glebe House, the defendant will be offered accommodation in one of three “Exit Houses” in Sydney, for up to 12 months. Exit House residents must attend a number of meetings each week to address addiction, and counselling is available. Employment is encouraged.

36. [41]

    The Glebe House Manager, Mr Martin, expressed the opinion to Ms Reynolds that electronic monitoring of the defendant would undermine the defendant’s prospects of rehabilitation, by adversely affecting the relationship of trust with those engaged in rehabilitation programmes, and by marking the defendant out as different from other residents.

37. [42]

    Ms Reynolds produced a number of certificates of attainment earned by the defendant through attendance at various educational and rehabilitative courses.

38. [43]

    Having regard to the unchallenged evidence before the Court, and noting the defendant’s concession in this regard, I am satisfied of those matters referred to in s 5E(2) of the Act. The weight of the evidence is that the defendant poses a high risk of returning to serious violent crime if he is unsupervised in the community.

39. [44]

    It is appropriate to order that he be made the subject of an ESO, to endeavour to ensure both the protection of the community, and the defendant’s ongoing access to rehabilitative support.

40. [45]

    The real questions are the length of the order, and the conditions to be imposed by it.

41. [46]

    The defendant takes issue with the necessity for electronic monitoring, for the requirement for approval to be given to accommodation, and for search and seizure powers. He also disputes the need for a 5 year order, contending that the aims of the legislation can be met through a 3 year order.

42. [47]

    The imposition of particular conditions, and the assessment of the duration of the order, must be determined in light of the general principle that the defendant’s liberty should be constrained to no greater extent than is warranted, having regard to the purposes of the Act and the evidence of his personal circumstances.

43. [48]

    Section 11 of the Act provides that an extended supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate. Conditions will be appropriate if they support the achievement of the objectives of the Act. Determining what is appropriate involves balancing relevant considerations, as was noted by Johnson J in State of NSW v Tillman [2008] NSWSC 1293, at [68]:

44. [49]

    It is necessary for conditions to be designed to address specific risk: State of NSW v Green (Final) [2013] NSWSC 1003 per R A Hulme J.

45. [50]

    The evidence relevant to electronic monitoring is, to a degree, contradictory.

46. [51]

    When the State filed its initial summons with attached schedule of conditions to apply to any ESO, electronic monitoring was not sought. There is no evidence as to why that was the case, whether as a result of oversight or considered decision.

47. [52]

    In any event, when the matter was considered by the Court appointed experts, the regime each examined was one which did not require the defendant to be subjected to electronic monitoring. Both Dr Singh and Mr Sheehan regarded the supervisory regime then proposed as adequate to manage the risk the defendant poses to the community. Neither suggested that electronic monitoring was necessary or desirable.

48. [53]

    After these proceedings had commenced and were well underway, the State amended the schedule of conditions sought as part of the application for an ESO, with electronic monitoring sought. The explanation for that change seems to be the evidence of Ms Carden who, as the defendant’s supervising officer, regards electronic monitoring as necessary to permit Corrections staff to stay adequately informed of the defendant’s movements, and to take such measures as may be necessary in the event he were to deviate from the approved schedule, in particular by going to Kempsey or entering licensed venues. However, as Mr Sheehan noted in his oral evidence, Ms Carden’s views do not seem to be based upon any material change in the defendant’s circumstances since the original schedule of conditions was drafted.

49. [54]

    The defendant’s consistent position up until June 2017 was that he planned to go home to Kempsey, but he has made that known for many, many months. It could not have been a surprise to those responsible for the application, from a review of the documentary material, and it is something that could have been addressed by a request for electronic monitoring when the State filed its application, had that been thought necessary.

50. [55]

    The more recent evidence is twofold: that the defendant’s sister has expressed the view that he is likely to try to return to Kempsey (with the attendant difficulties noted by police of locating him there); and that the defendant has expressed the intention to remain in Sydney until he has completed the Glebe House programme, that is, for a period of 15 months.

51. [56]

    The weight to be given to the opinion of the defendant’s sister is uncertain in the complete absence of any information as to the basis upon which she formed it. Probably, the defendant has told her, as he has told officials, that he intended to go home. Against that is the defendant’s admission to Glebe House and his newly asserted resolution to complete the programme offered to him there. Whilst his present intention must be viewed against his long expressed desire to go home, and his acknowledged inability to accept supervision, his asserted willingness to remain at Glebe House and subsequently an Exit House is at least positive.

52. [57]

    Whilst Ms Carden considers electronic monitoring an essential tool in the Department’s supervision of the defendant, and Dr Singh concluded in her second report that it would be appropriate as amplifying the intensive monitoring scheme proposed, Mr Sheehan’s evidence sounds a note of caution. That note of caution needs to be assessed in a context where both Mr Sheehan and Dr Singh have referred to the lack of research data clearly supportive of the efficacy of electronic monitoring.

53. [58]

    Dr Singh referred to research from Scotland published in 2015 which received a “mixed” result; and Scandinavian research published in 2014 that provided some support for a conclusion that electronic monitoring could assist in decreasing short term recidivism.

54. [59]

    With no clear support for the use of electronic monitoring provided by empirical data, to impose it on an individual there must be a clear basis for its utility in that individual’s case. Ms Carden believes it would be helpful in supervising the defendant. Although Dr Singh did not initially consider it indicated, when specifically asked to comment she concluded that it was an appropriate condition to impose. Mr Sheehan states it may be of use in monitoring the defendant, with that possible benefit to be balanced against the potentially adverse effect of late imposition. Mr Martin considers electronic monitoring a retrograde step.

55. [60]

    Ultimately, I have found it persuasive that neither of the Court appointed experts considered electronic monitoring necessary when conducting their initial assessments of the conditions as originally proposed. Both had concluded that a supervisory scheme that did not include electronic monitoring was adequate. Since there has been no change of circumstances to undermine the validity of those initial conclusions, they must remain valid. If that is the case, the danger of adversely impacting upon the defendant’s engagement with the supervisory regime that the imposition of electronic monitoring poses is not justified in all the circumstances.

56. [61]

    In reaching that conclusion I am mindful that the defendant’s supervisors have available to them a suite of tools through which to monitor his compliance with conditions, including breath testing and urinalysis, and, at least for the first three months of his residence at Glebe House, the defendant is so closely monitored that any absence, or drug or alcohol intoxication, should be noted within three hours.

57. [62]

    My conclusion that electronic monitoring should not be imposed upon the defendant is based to a significant degree on the fact that, whilst at Glebe House and an Exit House, the defendant is subject to a degree of supervision from staff of the facility. That supervision would be lost were the defendant to be allowed to determine his own accommodation arrangements.

58. [63]

    The defendant’s stated wishes have, until very recently, been consistent with a return to living arrangements that have historically been associated with drug and alcohol use and the commission of crime. That is to be avoided.

59. [64]

    To achieve the objects of the Act, it is necessary to impose a condition requiring the defendant to live at an address approved by his supervisors.

60. [65]

    The evidence for the utility of search and seizure conditions is mixed. There is an obvious benefit if those who supervise the defendant are able to search him or his property if there is a reasonable basis to do so, thus potentially revealing drug and alcohol use, or the possession of weapons. Against that is the fact that such of the defendant’s crimes where a weapon has been used seem to have been opportunistic rather than carefully planned, and similarly has drug and alcohol use been opportunistic. There is no evidence that the defendant obtains and stores either weapons or drugs or alcohol. The benefit of a search and seizure condition may be limited.

61. [66]

    That limited benefit needs to be balanced against the prospect raised by Mr Sheehan that a search and seizure condition could have an adverse impact upon the defendant’s progress by alienating him from the supervisory regime and from his supervisors.

62. [67]

    On balance, I do not regard the search and seizure conditions as essential to the defendant’s effective supervision. It is an intrusion on his liberty that is not, in all the circumstances, warranted.

63. [68]

    Dr Singh’s view is that any ESO should be for a period of 5 years; Mr Sheehan regards a period of less than 3 years as unrealistic. The following evidence was given by him on 21 July 2017:

64. [69]

    Mr Sheehan went on to note that a 3 year order may provide more encouragement to the defendant to comply with supervision than a longer order.

65. [70]

    Whilst I accept, having regard to Dr Singh’s opinion, that an order of 5 years duration may well be optimal, the question is, what is an appropriate period to manage the risk posed by the defendant, and to promote his rehabilitation.

66. [71]

    The evidence appears to suggest that, if the defendant is going to return to his former lifestyle, it will happen very quickly. In the past, it has occurred within a period of weeks or months, not years. It is reasonable to conclude that, if there is to be a breach of the ESO, any breach is likely to be earlier in the period of supervision rather than later. Three years should be adequate to monitor and manage that likelihood. The shorter period has the added advantage referred to by Mr Sheehan of potentially promoting the defendant’s rehabilitation by giving him the incentive of an achievable goal – compliance for 3 years.

67. [72]

    Should the defendant’s conduct be such that a longer period of supervision is indicated in practice, it is open to the State to make an application pursuant to s 13(1) of the Act to vary the order, by extending the period of it to 5 years.

68. [73]

    I propose to grant the State’s application to impose an ESO on the defendant, for a period of three years, but to refuse to impose conditions requiring the defendant to submit to electronic monitoring, or search and seizure.

    1. (1)

       Order that, pursuant to s 5F and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subjected to a high risk violent offender extended supervision order for a period of three years from today; and

    2. (2)

       Pursuant to s 11 of the Act direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to these orders.