State of New South Wales v Kramer (Preliminary)

1. [1]

   By an amended summons filed by leave on 19 July 2023, the plaintiff, the State of New South Wales, sought a continuing detention order (CDO) for three months followed by an extended supervision order (ESO) for three years, or alternatively, an ESO for three years in respect of the defendant, Mr Karl Kramer, under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). In addition, the State sought preliminary orders for psychiatric or psychological, or a combination of both, examinations of the defendant and an interim detention order (IDO) or, alternatively, an interim supervision order (ISO), commencing on the expiration of the defendant’s sentence for serious violent offending on 29 July 2023.

2. [2]

   The application for preliminary and interim orders came on for hearing before me on 17 July 2023. On that date, it appeared that the defendant experienced difficulty in in accessing the material which had been sent to the Correctional Centre where he is in custody and thus, there was a possibility that the defendant had not received all of the material upon which the State relied. I directed that steps be taken to provide a further copy of volume one of the Court Book to the defendant urgently and the proceedings were adjourned to 19 July 2023 to allow him to read that material. The hearing continued on 19 July 2023.

3. [3]

   At the end of the hearing on 19 July 2023, I was satisfied that the State had met the onus which fell upon it and made orders on that day but indicated that I would provide my reasons at a later time. The orders made on 19 July 2023 were as follows:

4. [4]

   These are my reasons for making those orders.

5. [5]

   It can be noted at the outset that the defendant was not represented and appeared for himself on 17 and 19 July 2023. As I understood it, Mr Kramer could have been represented by Legal Aid but chose not to be.

Statutory requirements for the making of preliminary examination orders and an IDO

1. [6]

   In proceedings for an CDO, such as the present, if the Court is satisfied following the preliminary hearing that “the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order”:

   1. (1)

      under s 15(4) of the CHRO Act, the Court must make orders:

   2. (2)

      under s 18A(a) of the CHRO Act, the Court may make an IDO if it appears to the Court that the offender’s current custody will expire before the proceedings are determined.

2. [7]

   As to s 18A(a), since the defendant’s current custody would expire on 29 July 2023, he had not yet been examined under s 15(4) and no date for a final hearing would be set until after 19 July 2023, I was satisfied that his current custody would expire before the present proceedings were determined.

3. [8]

   Thus, the Court was required by s 15(4) of the CHRO Act to make examination orders, if the Court was satisfied that, assuming the matters alleged in the supporting documentation were proved, they would justify making a CDO or an ESO. Similarly, in such circumstances, the Court would also have a discretion to make an IDO.

4. [9]

   The making of an ESO or a CDO is governed by s 5B and s 5C, respectively, of the CHRO Act. Those sections provide:

5. [10]

   The statutory preconditions for the making of an ESO in s 5B(a), (b) and (c) and for making of a CDO in s 5C(a), (b) and (c) are substantially similar. As to the precondition in par (d) of each section, the only difference is whether the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept “under supervision”, in the case of s 5B(d), or “in detention”, in the case of s 5C(d), under the ISO or IDO, respectively.

6. [11]

   I was satisfied, on the material before the Court, that:

   1. (1)

      the requirements in s 5B(a) and s 5C(a) were met because the defendant was serving a sentence of imprisonment for a “serious offence” (as defined in s 4 and 5A of the CHRO Act) in custody as a result of his unexpired sentence for his offending contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) committed on 21 December 2013;

   2. (2)

      the requirements in s 5B(b) and s 5C(b) were met because the defendant was a “supervised offender” within the meaning of s 5I and s 13B, as he was in lawful custody serving a sentence of imprisonment for a serious offence at the time the relevant application was made;

   3. (3)

      the application made by way of the amended summons was made in accordance with s 5I and s 13B, since the defendant was a supervised offender at that time and the application was made not more than nine months before the expiry of the defendant’s total sentence.

7. [12]

   Furthermore, the requirements in s 14 of the CHRO Act that the application address each of the matters in s 17(4) and include a report prepared by a registered psychologist were met, in light of the material in: the affidavit of Sarah Najjar affirmed 30 May 2023 and Ex SN-1, the affidavit of Jamie McLachlan affirmed 11 July 2023, and the affidavits of Erin Kirkwood affirmed 12, 14 and 18 July 2023. This documentation included the Risk Assessment Report of Dr Richard Parker, Senior Psychologist, Serious Offenders Assessment Unit dated 26 September 2022 and an updated reported by Dr Parker dated 26 June 2023. Similarly, it appeared to me that the relevant pre-trial procedures under s 15 of the CHRO Act had been complied with.

8. [13]

   All these requirements having been met, the only remaining issue under s 18A(b), was whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order. The determination of that issue turned on whether the Court, assuming the matters alleged were proved, was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision or in detention under an order, as required by s 5B(d) and s 5C(d) of the CHRO Act.

Matters alleged in the supporting documentation

1. [14]

   The matters alleged in the supporting documentation included what was set out in the following documents in Ex SN-1:

   1. (1)

      Records of the defendant’s criminal history in both New South Wales and in Queensland as well as other records relating to his custodial history, which alleged, inter alia:

   2. (2)

      The risk assessment report dated 26 September 2022 by Dr Richard Parker, Senior Psychologist, Serious Offenders Assessment Unit. Although the defendant was given the opportunity to participate in an interview for the purposes of preparing this report he refused to participate. Consequently, the report was only based on the material obtained under s 25 of the CHRO Act. Dr Parker’s report included information concerning the defendant’s family, education, employment and substance use history as well as his psychiatric and cognitive factors and treatment, his history of violent offending and his general criminality. The report alleged that in a risk assessment using the Level of Service Infantry – Revised (LSI-R) actuarial risk instrument by Mr Abbott in April 2022, the defendant scored in the “Medium category”. In February 2022, the defendant’s score on the Violence Risk Scale (VRS), administered by Mr McMaster and Ms Ryan, was classified as “high risk, and … similar to a group of offenders that had a violent recidivism rate of 49.5% after 4.4 years at risk”. Dr Parker was of the opinion that his score now would be likely to be very similar. Using the Violence Risk Appraisal Guide – Revised (RAG-R), on 15 September 2022, Dr Parker scored him as “equal to or higher than the score of at least 97% of the construction sample which place[d] him in the ninth of nine ‘bins’”, noting that “76% of violent offenders with a similar score reoffended violently within five years, and 87% within twelve years”. Dr Parker’s conclusions included:

   3. (3)

      The risk management report dated 18 October 2022 of Mr Ryan Gaffney JP, Community Corrections Officer, Extended Supervision Order Team. Mr Gaffney’s report noted that the defendant fell in the highest categories of risk for violent offending and summarised the risk factors relevant to the defendant as: self-regulation/impulsivity; substance abuse; and cooperation with supervision. At the outset, Mr Gaffney’s report noted under the heading “Post Release Plans” the following:

   4. (4)

      Indictments and Crown case statements relating to the defendant’s most recent offending, including the index offence of causing grievous bodily harm with intent to cause grievous bodily harm and the sentencing remarks of Haesler DCJ of 25 September 2015. In the course of his remarks, his Honour said:

   5. (5)

      Court attendance notices, indictments, fact sheets and judgments in relation to the defendant’s earlier violent offending. This included the remarks on sentence by Dowd J on 29 November 1995 when the defendant was sentenced to imprisonment for 15 years with a minimum term of 11 years after which he would be entitled to be considered for parole. It can be noted that, at the hearing of the defendant’s application for an extension of time for leave to appeal against the severity of the sentence on 25 September 1996, the application was summarily dismissed on the basis of the defendant’s failure to prosecute it. On that occasion, Hunt CJ at CL recorded that the Registrar had been informed that the Legal Aid Commission of New South Wales was no longer acting for the defendant and he had been informed of this by letter and warned of the consequences of failing to respond. Even though a further letter was sent to the defendant, there was no appearance when the application came on for hearing.

   6. (6)

      Documentation relating to the defendant’s applications for release to parole and their refusal by the State Parole Authority. This material included a report from Dr Gordon Elliott, consultant psychiatrist, of 18 May 2022 which was as follows:

   7. (7)

      Inmate misconduct reports in respect of the defendant which provided more detail concerning his punishment history while in custody, which has been referred to above.

2. [15]

   In addition, the matters alleged in the supporting documentation included what was set out in the documents annexed to Mr McLachlan’s affidavit, namely:

   1. (1)

      A supplementary risk assessment report dated 26 June 2023 by Dr Parker based upon the Offender Integrated Management System (OIMS) case notes from the date of his last report until the time of the supplementary report. Dr Parker noted that a review of the case notes revealed that the defendant’s presentation was unchanged and he continued to refuse to consent to a referral to the Violent Offender Treatment Program, or VOTP, and had not engaged with either psychological services or Community Corrections. Consequently, Dr Parker said that he had no reason to change or amend the views he previously expressed.

   2. (2)

      A further risk management report by Ms Jesse Slattery-McDonald, High Risk Offender Applications and Operational Governance Officer from the Extended Supervision Order Team, dated 29 June 2023. In that report, Ms Slattery-McDonald referred to a scheduled AVL interview on 29 May 2023 at which on arrival, the defendant stated that he only attended as he was under the impression that it was a meeting with his legal representative and, although attempts were made to discuss post release accommodation with the defendant:

   3. (3)

      A further incident report of 16 March 2023 which contained details of a letter that alleged that there was a risk of the defendant being “assaulted or worse” because of his bullying and threatening a number of inmates and contained further allegations that the defendant had a USB containing pornography that he rented out for drugs. The report noted that the defendant’s cell had been searched and nothing had been found and that no further action was proposed to be taken.

   4. (4)

      OIMS notes from May and June 2023 which, in general terms, indicated that there had been no significant change in the defendant’s attitude. In addition, the case note report of 29 June 2023 recorded internal case discussion as follows:

3. [16]

   The material annexed to Ms Kirkwood’s affidavits was consistent with what has been recorded above and provided further illustrations of the defendant’s uncooperative attitude and the ongoing attempts by officers of Corrective Services to find accommodation for the defendant at the expiration of his sentence and the difficulties encountered because the defendant would not sign terms and conditions and would not take part in assessment processes. Assuming that information was proved, it appeared to me that, as at 19 July 2023, there was no reasonable likelihood that any suitable accommodation could be found for the defendant at the Nunyara Community Offender Support Program (COSP) or the Integrated Support Centre (ISC) or anywhere else, if the defendant were released on the expiry of his sentence. This was so despite persistent and determined efforts by Corrective Services officers and members of the ESO team to find him suitable post release accommodation.

Should examination orders and an IDO be made?

1. [17]

   In determining whether I was satisfied that the matters alleged, if proved, would justify the making of a CDO or an ESO, I took into account the principles summarised in State of New South Wales v Coe (Preliminary) [2023] NSWSC 644 at [27]-[29] (Chen J) and State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12] (Wright J).

2. [18]

   In light of all the evidence, I reached the conclusion that, assuming the matters which were alleged in the supporting material and to which I have referred above to have been proved, the making of a CDO or an ESO would be justified. This was because, having regard to the matters alleged and the considerations identified in s 17(4)(c), (d), (d1), (e), (e1), (e2), (h), (h1) and (i) of the CHRO Act, I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept in detention or under supervision by way of an order.

3. [19]

   Accordingly:

   1. (1)

      I was required to make an order for the examination of the defendant under s 15(4) of the CHRO Act; and

   2. (2)

      my discretion to make an order for the interim detention of the defendant was enlivened in this case.

4. [20]

   Relevant to the question of whether an IDO should be made, the defendant put before the Court some of the submissions he had made to the State Parole Authority. These became Ex 1 and contained the following:

5. [21]

   In addition, the last three pages of Ex 1 contained a statement of short-term, medium-term and long-term goals. Among others, the short-term goals included: “Settle in and adjust to COSP environment”; the medium term goals included, “when COSP staff (opinion I’m ready) move residence to supported accommodation”; and long-term goals included, “reside in private rental on my own”.

6. [22]

   At this point it can be noted that, during oral submissions, the defendant indicated that he would be prepared to abide by certain conditions if released subject to a supervision order but he indicated that he objected to other conditions and maintained that some of those other proposed conditions “would actually raise my risk” [1] . In particular, the defendant objected to open ended disclosure of his criminal history, all the proposed conditions concerning medical intervention and treatment and any condition requiring him to participate in drug rehabilitation programs.

7. [23]

   The problem with the defendant’s position and previous and present plans was that he steadfastly refused to take steps such as signing appropriate terms and conditions and being assessed for suitability for accommodation at the COSP or the ISC or, for that matter, anywhere else. In the absence of suitable accommodation where appropriate supervision could be provided in the community, I was satisfied to a high degree of probability that the defendant would continue to pose an unacceptable risk of committing another serious offence if not kept in detention or supervision under an order, at least until suitable post-release accommodation could be found.

8. [24]

   Furthermore, given his unwillingness to submit to the conditions to which he objected, in my view neither release without supervision nor release under an ISO would have adequately protected or promoted the safety of the community so as to be a viable or appropriate option at the present time. I was of the view that only an IDO would be appropriate in all the circumstances.

9. [25]

   For those reasons, I made the orders set out above on 19 July 2023.