State of New South Wales v Loto

By amended summons filed in court on 3 March 2020, the State of New South Wales (the State) seeks by way of final relief an order under ss 5B and 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) (The Act) that the defendant, Mr Loto, be subject to an Extended Supervision Order (“ESO”) for a period of 3 years from the date on which the order is pronounced. Under s 11 of the Act, the State also seeks an order directing Mr Loto to comply with the 45 conditions set out in the schedule annexed to the amended summons. Other ancillary relief is also sought.

For reasons which are best explained by reference to Mr Loto’s custodial history, the course of the present case has been somewhat unusual for proceedings of this type. The original summons was filed on 1 August 2018, two months before the expiration of the sentence imposed by Woodburne SC DCJ for the serious violence offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) (the index offence) expiring on 11 October 2018. This was within the last nine months of his then current custody for the purpose of s 6 of the Act.

The preliminary application for an interim supervision order (“ISO”) and the appointment of experts under s 7(4) of the Act was heard by Rothman J on 12 September 2018. His Honour pronounced orders, including an ISO for a period of 28 days, on 11 October 2018.

However, Mr Loto was not released at the expiration of the head sentence for the index offence, but remained in custody on remand relating to a charge of affray which arose on 25 February 2017 and a further charge of wounding while reckless as to the causing of actual bodily harm whilst in company contrary to the provisions of s 35(3) Crimes Act 1900 occurring on 17 May 2017. Obviously both of these offences were said to have occurred while Mr Loto was an offender in custody in a correctional centre.

The affray charge was withdrawn at the commencement of the appointed trial on 23 July 2019.

In the meantime Mr Loto had been examined by Dr Andrew Ellis, forensic psychologist, on 7 July 2019, his report to the Court bears the same date, and by Mr Patrick Sheehan, forensic pathologist on 11 July 2019, who’s report to the Court bears that date. Both these examinations took place pursuant to the orders of Rothman J.

An expected final hearing before Button J on 1 August 2019 was adjourned because Mr Loto remained in custody and was to be sentenced by Ellis DCJ for the aggravated s 35(3) offence to which he had entered a plea of guilty at his trial on 23 May 2019. By consent Button J made amendments to the conditions of the ISO ordered by Rothman J on 11 October 2018, and adjourned the proceedings.

On 11 September 2019, Ellis DCJ sentenced Mr Loto to a term of imprisonment of 3 years and 7 months commencing on 19 February 2018 and expiring on 18 September 2021 with a non-parole period of 1 year and 7 months. The earliest date for Mr Loto’s release therefore was 18 September 2019, about 2 weeks later.

Probably because of the shortness of time available after sentence was passed, Mr Loto was not released on parole until 26 November 2019 on a parole order made by the State Parole Authority dated 14 November 2019.

The ISO pronounced by Rothman J had remained suspended under s 10C(1A) of the Act during the period of Mr Loto’s lawful custody and accordingly did not commence legal operation until after his release, expiring 28 days from this date. For reasons which are not fully explained, the ISO which was extended from time to time as permitted by s 10C(2) of the Act is said to have expired on 17 February 2020 (affidavit Kelli Grabham, affirmed 26 February 2020, at [18]), rather than 25 February 2020. The latter date would represent the maximum permitted extensions under the Act for successive ISO’s each of 28 days, but not exceeding a period of three months. When I heard the matter on 4 March 2020, Mr Loto was being supervised under the parole order made on 14 November 2019, but, again, in somewhat unusual circumstances which it is necessary to explain to deal with a preliminary legal argument made on his behalf.

That Mr Loto is on parole is relied on by Mr Coady of counsel, who appears for him, for a number of different purposes. First, more or less by way of a preliminary point, Mr Coady submits that the Act does not apply to an offender under supervision on parole; secondly, he submitted that the parole conditions to which Mr Loto is subject are such as to reduce any risk of him committing another serious offence to a level below that which would be unacceptable; and thirdly, in the alternative, the conditions of parole engage the discretion conferred by s 9(1)(b) of the Act, not to make an ESO but to dismiss the State’s application. In a nutshell these were the substantive issues ventilated with greater elaboration at the hearing.

Ms K Curry of counsel, who appears for the State, joined issue on each of Mr Coady’s three, principal points. She argued that the first point was untenable and contrary to express statutory language to be found both in the Act and in the Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”). With regard to the second issue, she argued that, looking at the evidence as a whole, including Mr Loto’s criminal history before and after the index offence, he clearly poses an unacceptable risk within the meaning of the statute. As the evidence before me demonstrated that a person on an ESO is subject to closer, more intensive supervision than a person subject to a parole order, Ms Curry argued that I ought to be satisfied to the statutory high degree of probability that Mr Loto poses an unacceptable risk of committing another serious offence if not supervised under an ESO. Thirdly, it followed that I should exercise my discretion to make an ESO subject to the same conditions as the ISO which has since lapsed.

The parole order authorising the release of Mr Loto made on 14 November 2019 was subject to the standard conditions of parole required by s 128 CASA (see clause 214 Crimes (Administration of Sentences) Regulation 2014 (NSW) (“CAS Reg”)); the conditions as to supervision required by s 128C CASA and clause 214A CAS Reg; and additional conditions under s 128(2) CASA requiring electronic monitoring, attendance upon a psychologist employed by CSNSW and conditions as to non-association and place restriction (see 128A CASA).

It is apposite at this point to make reference to s 160A CASA which provides that an offender’s obligation under a parole order made in respect of a sentence are suspended while the offender is subject to, relevantly for present purposes, an extended supervision order or an interim supervision order. That this provision had legal effect during the period when Mr Loto was subject to the ISO and supervised by the ESO team within CSNSW after his release to parole is not in question.

Appreciating that the ISO would expire before the final hearing of the application, Mr Loto’s “parole conditions were updated” (Grabham affidavit, at [21]) by recording on them a series of “officer directions” (see Annexure “B”, Grabham affidavit). These officer directions were based upon a condition of Mr Loto’s parole which is in the following terms:

Mr Coady’s essential point is that the Act should be construed as not applying to offenders released from custody to supervision on parole. His starting point is the second reading speech for the Crimes (Serious Sex Offenders) Bill 2006 (NSW), which was how the Act commenced its legislative life. The Minister said:

By reference to s 135 CASA he pointed out that the provisions governing the making of a parole order directing the release of an offender to the community by the State Parole Authority overlapped with the relevant provisions of the Act governing the making of ISOs and ESOs. In particular, counsel relied upon the centrality of the interests of the safety of the community: s 135(1). He also referred to s 135(2) which sets out the mandatory considerations to which the State Parole Authority must have regard including: assessment of risk; whether parole addresses the risk of re-offending; and the risk involved in releasing an offender at the end of his or her sentence without a period of supervised parole. It was submitted that the matters referred to in s 135(3) were much like those (they are not identical) the Court was required to consider under s 9(3) of the Act. Counsel also referred to ss 169 to 172 CASA dealing with the sanctions available for breach of a parole, including revocation of parole. Taking all these considerations together, Mr Coady submitted as a matter of necessary implication that the Act should be construed as not applying to offenders supervised on parole.

Ms Curry submitted that the Act and CASA should be given a harmonious operation according to their respective terms. She laid particular emphasis upon s 160A CASA by which it may be said an ISO or ESO trumps the operation of a parole order. Counsel made reference to s 135(3)(i) which renders the consideration that there is a pending application under the Act a mandatory consideration for the State Parole Authority when considering whether to make a parole order; and s 135(7) which renders the possibility that an application may in future be made under the Act an irrelevant consideration.

With respect, Mr Coady’s argument is misconceived and I prefer the arguments advanced by Ms Curry. From a consideration of the terms of both the Act and CASA, it is quite clear that they may be given a harmonious operation. To the extent to which there may be potential for inconsistency in their operation, this potential is removed by the provisions of s 160A affording precedence to the Act over CASA. Moreover, and perhaps more importantly for present purposes, the express terms of the Act under which I am asked to exercise power, contemplate that the Court’s powers may be exercised in respect of a person serving the balance of a term of imprisonment in the community on parole. S 5B of the Act is in the following terms:

These express terms of the Act and of CASA and their legislative context are surer guides to the Act’s meaning and operation than a focus on the purpose of the Act derived not from those considerations but by reference to statements made in the second reading speech: Harrison v Melham (2008) 72 NSWLR 380; [2008] NSWCA 67 at [14] (Spigelman CJ); and [158]-[162] (Mason P); Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25].

I am well satisfied that the Court has the power to make an ESO if the conditions established by s 5B are satisfied, and I am persuaded by reference to the matters set out in s 9(2) and (3) that the order should be made, notwithstanding that Mr Loto is serving a sentence of imprisonment under supervision in the community on parole.

I turn then to the merits of the State’s application. There is no issue in this case that the conditions laid down by s 5 B (a) to (c), as informed by the provisions of s 5I of the Act, are satisfied in this case. The outstanding question is whether I am satisfied to a high degree of probability that Mr Loto poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

The test prescribed by s 5B(d) is familiar and well understood. The standard of proof is satisfaction to a high degree of probability, a more stringent standard than that required by the ordinary civil standard of proof, but obviously not as stringent as the requirements of the criminal standard of proof.

The Court is required to make an evaluation of future probabilities in terms of the assessment of the chance of an identified risk materialising. The identified risk is a risk of Mr Loto committing another serious violence offence if not kept under an ESO.

A serious violence offence, the relevant category of serious offence applicable in the present case, is defined by s 5A of the Act. The primary definition, amplified somewhat by s 5A(2A), is found in s 5A(1)(a)

The risk of Mr Loto committing another serious violence offence will be unacceptable if it is more than trivial; real or substantial having regard to the seriousness of the consequences of its materialisation. A risk may be unacceptable even if the risk of its materialisation is not more likely than not: s 5D of the Act. In determining whether the risk is unacceptable, an offender’s general right to be at liberty (where it exists, and it does not in this case because of his continuing sentence) is to be put to one side: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [44] (Beazley P), [127] (Basten JA) and [148] (Gleeson JA).

The index offence occurred on 1 April 2012. Mr Loto was then aged 20 and on parole serving the balance of a term of 2 years and 6 months imprisonment imposed by the District Court for an offence of robbery in company committed on 1 April 2010 when he was then subject to a probation order imposed in the Childrens Court for earlier similar offending which occurred on 17 June 2009.

The facts were found by Woodburne SC DCJ for the purpose of sentencing Mr Loto after he was found guilty after trial of two offences arising out of the same incident. The first offence of robbery in company with wounding is the serious violence offence which brings Mr Loto within the scheme of the Act. The second offence was one of wounding with intent to cause grievous bodily harm. In her judgment of 1 December 2014, her Honour summarised the facts as follows (Exhibit SEJ-1, p. 53):

The victim was a security guard on duty at the shopping centre. He was uniformed, had a torch and was unarmed. He was taken to hospital by ambulance with a fractured nose; a wound to his forehead; a tear partly separating his left ear from the side of his face; a subarachnoid haemorrhage which fortunately resolved over a period of 3 – 4 weeks; and his eyes were blackened and swollen to the point where he was unable to open them for a period of time. He also had bruising and grazing to his neck, shoulder and arm. He was hospitalised for a period of 5 days. The offenders stole the victims watch, wallet and mobile phone.

Her Honour assessed the seriousness of the offending in the following terms (Exhibit SEJ-1, p. 58):

It must be borne in mind that Mr Loto’s criminal record commences on 1 August 2008 when he was a 16 year old juvenile with an offence of aggravated stealing. The element of aggravation was constituted by the consideration that he was in company with other members of a group who went by the name Full Blood Islander, or FBI. A probation order of 12 months duration was imposed, subject to a non-association condition.

In breach of the probation order, on 17 June 2009, Mr Loto committed the offence of assault with intent to rob in company, which offending took place at a McDonalds takeaway. He was sentenced to community service.

At about 4 am on 1 April 2010, Mr Loto and 3 companions approached a male person unknown to them. Striking up a conversation to lure the victim into a sense of false security, one of their number grabbed his bag and another punched him to the ground where he was punched and kicked before the assailants absconded. The victim’s wallet and phone were stolen. All of the assailants including Mr Loto were intoxicated. He was sentenced by the District Court to a term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 6 months. Mr Loto was on parole for this offending when he committed the index offence.

While on remand for the index offence at Parklea Correctional Centre on 22 October 2014, Mr Loto was one of a group of inmates who assaulted another. One of Mr Loto’s companions struck the first blow. Even after the intervention of a correctional officer, Mr Loto approached the victim from behind and struck him on the head with a sandwich press. While the victim was then slumped over a table, the defendant punched him in the head. A second offender joined in and a third offender pulled the victim to the ground before stomping on his head. A fourth offender kicked the victim and the third offender again stomped on his head. The victim suffered a fracture to the base of his skull and a closed head injury which was managed without surgery. It is important to bear in mind that this offending occurred after Mr Loto had been convicted of the index offence by the jury’s verdict and while he was awaiting sentence.

Further offending occurred on 19 May 2017, again notwithstanding the interventions of corrections officers seeking to protect the victim. The victim was a fellow inmate at the Mid-North Coast Correctional Centre. Mr Loto accused him of being a member of an outlaw motor cycle gang which the victim denied. Mr Loto punched him, which apparently was a signal for his companions to join in the assault. The victim was kicked and punched several times. The attack continued notwithstanding the efforts of correctional officers to extract the victim. He may have been stabbed with a sharp object. He suffered lacerations to his head, back, shoulders and right forearm and multiple facial fractures of a significant kind.

This was the offending for which he was sentenced by his Honour Judge Ellis on 13 September 2019. His Honour found that Mr Loto was “slightly more criminally responsible” than the two co-offenders his Honour had previously sentenced. Mr Loto was sentenced to a term of imprisonment, after a 10% discount for a late plea, of 3 years and 7 months, commencing on 19 February 2018 and expiring on 18 September 2021. A non-parole period of 1 year and 7 months was imposed, expiring on 19 September 2019. As I have stated above, this is the sentence he is currently serving in the community on parole.

In addition to the offending which has occurred in custody, Mr Loto has committed a number of breaches of prison discipline over the years for which he has been dealt with administratively under the CAS Reg.

As will be apparent from the narrative I have provided above relating to his criminal record, all of his offending has occurred in company. Indeed all of it is gang related violence. When at liberty, as mentioned, he was a member of the FBI gang, with whose members he committed the offences I have described. Once in custody he apparently fell out with other members of FBI and was instrumental in forming a break-away and rival group under the name Outcasts, whose members referred to it by the initialism OC. Mr Loto has these initials tattooed on his eyelids.

He has given some differing explanations for his participation in this group. By way of example, when questioned about the Outcasts by Dr Andrew Ellis, one of the Court appointed experts who provided an opinion in the application he apparently explained (at Exhibit A1, p. 9):

The second expert, Mr Patrick Sheehan (Exhibit B1, p. 15 at [34]), under the heading Institutional Adjustment, recorded this explanation:

Mr Loto’s breaches of discipline extend to substance abuse, non-compliance with various aspects of prison discipline, weapons and violence. He was not able to achieve minimum security classifications during his long-time in prison. As late as 24 November 2016 he received a formal warning regarding his potential to be classified as an “extreme threat inmate”. He was designated a high security inmate on 4 June 2017. He had been placed on segregation for numerous periods between 2010 and 2018. Paradoxically at other times he has been assessed as being well-behaved.

In her risk assessment report of 6 February 2018 (Exhibit SEJ-1, p. 18-33) Dr Calinda Lee Payne, forensic psychologist, described the therapeutic programs in which Mr Loto had participated while in custody.

Dr Payne expressed the view that “a high-risk offender” requires a high intensity therapeutic program to address his or her criminogenic needs. The Violent Offenders Therapeutic Program (“VOTP”) conducted by CNSWS is such a program. As at the date of her report, Mr Loto had yet to complete the course. Indeed, he never has. She recorded that he declined to consent to referral to VOTP on four occasions during 2015. Although he was eligible and had recently submitted a referral for the program (as at 6 February 2018) he was reluctant to participate lest the program extends beyond his sentence (p. 23 at [25]). He had undertaken the EQUIPS Aggression and the EQUIPS Addiction programs and his participation in those programs was described as “mostly excellent” (p. 24 at [26]). However, Dr Payne described these programs as lower intensity courses which target, but do not fully address Mr Loto’s criminogenic needs (p. 24 at [26]).

He had not been able to undertake the VOTP prior to his release on 26 November 2019. While under supervision he has been regularly consulting with CSNSW psychologist, Dr Parker. According to Mr Sheehan he had declined an offer of participating in the course made on 24 April 2018, but accepted another offer of 22 August 2018 (Exhibit B1, p. 18 at [40]). Mr Sheehan was prepared to accept that Mr Loto was not eligible for entry to the VOTP while he was on remand for violence offences (p. 18 at [40]), on which he remained until his plea of guilty and sentence for the May 2017 offending by Ellis DCJ, a little over two months before his release on parole.

Both Dr Ellis and Mr Sheehan have accepted that Mr Loto’s institutional adjustment had greatly improved during 2019, with staff recording that he had become a positive influence and was respectful to staff, complying with directions given to him (Exhibit B3, p. 2 at [7]).

Dr Ellis and Mr Sheehan expressed strikingly similar views. Both record that Mr Loto is of Samoan background, raised by his maternal grandparents, whom he initially believed were his parents. There was disruption in his family life as his grandfather died when he was only 5, and a favourite uncle who was a good role model died when he was 13 years old.

He performed well enough at primary school and in his early years of high school, although he rated himself as a below average student. He had attended a Catholic high school until the family experienced financial difficulty and he was sent to the local public high school at the end of Year 9. He seems to have immediately run into trouble, falling in with delinquent peers and engaging in frequent fighting. He was expelled during Year 10.

He was sexually abused by an older male relative at the age of 14 or 15. This incident may have been responsible for aspects of post-traumatic stress disorder that both Dr Ellis and Mr Sheehan suspected on examination. Most significantly, in my view, for present purposes, each of Dr Ellis and Mr Sheehan diagnosed that Mr Loto is suffering from an anti-social personality disorder. Dr Ellis thought there were aspects of psychopathy in his presentation. I interpolate that Dr Payne came to the same conclusions as Dr Ellis (Exhibit ESJ-1, p. 22 at [18]). Having deployed various actuarial measures used for this purpose, accepting their limitations and after considering the whole of the information available to him, Dr Ellis offered the following conclusion in his first report (Exhibit A1, p. 13):

In his first report, Mr Sheehan expressed the following conclusions having likewise referred to statistical tools and the range of clinical factors of which he was made aware ( Exhibit B1, p. 28, [75]):

Due to the unusual history of these proceedings which I have described above, Dr Ellis and Mr Sheehan have been asked to provide additional reports from time to time commenting on developments and updated material. Both were asked to re-examine Mr Loto in February 2020 in preparation for the final hearing. Dr Ellis saw Mr Loto on 14 February 2020. He expressed his current opinion as follows (Exhibit A3, p. 4):

Mr Sheehan re-interviewed Mr Loto on 20 February 2020. He expressed the following conclusions (Exhibit B4, p. 3 at [8]):

Mr Sheehan gave oral evidence. It is clear that he regards the current regime as providing appropriate supervision of Mr Loto. I formed the view that he did not have a full appreciation that Mr Loto is subject to what I would regard as a de facto ESO which is unlikely to continue for the reasons I have addressed above if I decline to make an ESO. In that event, even if the conditions remained the same, Mr Loto would revert to the much less intensive supervision of Community Corrections. I did not understand Mr Sheehan to be advocating this. Rather I formed the impression that he was continuing to support the intensive ESO regime, although he may have ameliorated his views as to duration somewhat.

It is perhaps worthwhile interpolating now that for a long time, probably going back to 2013 while he was in custody, Mr Loto has had an interest in “hip hop” or “rhythm and blues” music which he has pursued since his release from custody. He has made recordings at his cousin’s home and some of these recordings have been published on social media and have been well received. In this context, Mr Sheehan offered the following opinion (Exhibit B4, p. 6 at [24]):

I have already made reference to the report of Dr Payne of 6 February 2018. Dr Payne referred to a previous assessment using the Level of Service Inventory-Revised actuarial risk assessment tool in 2014. She described the LSI-R as an actuarial risk instrument that provides an indication of a level of risk of general violent recidivism within 12 months post release, and of an individual’s needs in terms of supervision in custody or on parole. But also identifies criminogenic needs, which can be targeted in treatment programs. She pointed out it has limitations, however, in 2014 Mr Loto’s risk and needs were assessed as falling within the “Medium-High risk category for general and violent offending” (Exhibit SEJ-1, p. 25 at [30]).

Dr Payne carried out a detailed assessment of risk utilising the Violence Risk Scale (VRS). She described this as (Exhibit SEJ-1, p. 25 at [31]):

On her application of the VRS, Dr Payne estimated Mr Loto’s risk of being convicted of further violent offences as being within the High risk range (p. 25 at [32]). She said that a Canadian empirical study indicated that 44.5% of offenders who obtained a score similar to Mr Loto were convicted of a new violent offence within 5 years after release to the community, “while 67.8% were criminally convicted for a new non-violent offence within 5 years after release. The mean reconviction rate for violent offenders in the sample population was 31.26 percent within 5 years” (p. 25 at [32]).

Dr Payne pointed out that there are no Australian statistics for comparison but the VRS has been adopted and is used in other Australian jurisdictions and in New Zealand. However, Dr Payne also noted that there are limitations in the technique. In particular, the re-offending considered in the VRS study was not necessarily required to meet the criteria of serious violence offence defined by the Act. Generally she pointed out that recidivism rates specific to a serious violence offence (eg homicide or causing grievous bodily harm) are known to be lower than that identified for general violent recidivism. Individuals with multiple serious violence offences, in the opinion of Dr Payne, must be considered of greater concern. It is unnecessary for me to break down Dr Payne’s detailed results. Of particular concern, in my judgment, is her finding (p. 28 at subpar (j)) in the following terms:

Reviewing all of the material available to her, including the results produced by application of the actuarial risk assessment tools, Dr Payne was of the view that “Mr Loto presents a high risk of further serious violent offending if not made subject to an order under [the Act]”(p. 31 at [43]).

A risk management report concerning Mr Loto was prepared on 9 March 2018 by Senior Community Correction Officer Erin Kirkwood. The plan was endorsed by Janelle Farraway, the then High Risk Offender Applications and Operational Governance Officer. Ms Kirkwood’s affidavit affirmed on 19 July 2019 was also read. Ms Kirkwood also became Mr Loto’s initial Departmental Supervising Officer (DSO) for the ISO upon his release.

Although this evidence sets out in detail the plan for managing the risk Mr Loto presents of committing another serious violence offence no opinion is expressed as to the likely success of the plan on implementation. It is implicit, however, in the risk management report (Exhibit SEJ-1, p. 34-51) and Ms Kirkwood’s affidavit that her expectation is that the plan can be implemented and represents a reasonable and practicable plan for the management of Mr Loto.

Ms Kirkwood’s plan is the basis of the current conditions under which Mr Loto has been managed successfully since his release in November 2019. Despite some limited degree of “push-back” on Mr Loto’s part, Ms Grabham’s oral evidence was to the effect that he has been compliant and co-operative and has made appropriate progress.

As I have said, the current regime involves supervision and conditions covering: reporting and monitoring obligations, the latter including electronic monitoring and the provision of a Schedule of Movements; approved accommodation; place and travel restrictions; requirements relating to employment and education; prohibiting the use of illicit drugs, restricting alcohol consumption unless approved and providing for participation in rehabilitation programs; non-association with intoxicated persons; prohibiting the use of firearms or weapons; limiting and monitoring access to the internet and other electronic communications; submission to search and seizure powers on the part of the ESO team; prohibiting attempts to change his identity or appearance; and providing for medical intervention and treatment including psychological treatment with Dr Parker, the CSNSW psychologist to whom reference has already been made.

Additionally implementation of and compliance with the regime is periodically reviewed by the ESO team. Meetings are held to discuss case management of offenders, their progress, behaviour or difficulties and future supervision strategies. The conditions confer a degree of discretion on the DSO to enable flexible application and easing of the closeness of supervision as an offender demonstrates compliance and the capacity to live in the community “offence-free”. There is no suggestion that Mr Loto cannot be managed under this regime. The Court appointed experts, Dr Ellis and Mr Sheehan regard this regime as appropriate for the management of the risk posed by Mr Loto.

As I have already indicated, Mr Loto has not always been willing to take advantage of all programs available to him to promote his rehabilitation while in custody. In particular, having regard to his criminogenic needs, he has not undertaken the intensive VOTP despite the opportunity having been afforded to him on a number of occasions. I infer that when he finally indicated a willingness to undertake the course he was not suitable for it for various reasons including pendency of the 2017 charges, and shortness of time before his likely release on parole later in his incarceration. On the other hand, he has undertaken less intensive courses and during his final 12 months in custody his conduct seemed to have improved. Moreover, he has been compliant with the psychological interventions of Dr Parker. He seems to have benefited from them and is keen to maintain them.

As I have said probably too often, Mr Loto has been released into the community by the State Parole Authority under a parole order subject to conditions of supervision, place restriction and non-association. As I sought to explain above, however, these conditions have not really been implemented as they have been superseded by the conditions of the ISO and the close supervision and monitoring provided by the ESO team. Even after the expiration of the ISO, he has, in a de facto way, been subject to this more rigorous regime. I accept the evidence that if no ESO is made he will revert to the usual Community Corrections Supervision. Even if in substance the conditions are the same, the supervision available will be much less intensive.

Mr Loto has in the past a poor record of compliance with community based supervision. As the narrative of his criminal history makes clear, notwithstanding probation orders by the Children’s Court and parole as an adult he has breached those orders by committing other offences of a quite serious nature, including the index offence. This history, viewed in isolation, is not promising.

On the other hand, these breaches occurred during late adolescence and early adulthood. I am of course concerned that he continued to offend while in custody, and as recently as May 2017. However, as I have said more than once, his conduct improved during the last phase of his incarceration and he has been compliant and co-operative with the ISO since his release on parole. Given the availability of intensive supervision, I regard it as likely that he will comply with the obligations of an ESO. Given his record, I could not put it higher than that.

I have set out the relevant criminal history above. A clear pattern emerges from a consideration of all of it together. That pattern is well document in the risk management report of Ms Kirkwood to which I have referred. My own impression of it is a tendency to engage in serious personal violence, sometimes involving the use of improvised or makeshift weapons, in company, while intoxicated. This tendency has materialised into offending whether he is at liberty or in custody. In no small measure this tendency underscores his risk of re-offending.

I have set out above Woodburne SC DCJ’S assessment of the nature and seriousness of the index offending. Her Honour also said (Exhibit SEJ-1; at p. 67-8):

Two affidavits were read in Mr Loto’s case. The first affidavit is that of Faafetai Tai Chown sworn on 9 December 2019. Ms Chown is Mr Loto’s birth-mother. It will be recalled that because of her youth when she gave birth to Mr Loto, he was in fact raised by her parents. She has a Certificate IV in Youth Work and works as a community support worker with New Horizon Community Justice Program. She is accustomed to working with offenders during their transition from custody to the community. Her work requires her to liaise with community corrections officers.

She lives near Mr Loto’s approved residence, the home of his grandmother. She visits on a daily basis.

She is of the view that Mr Loto’s past offending and his alcohol abuse difficulties are related to the sexual abuse he suffered in his mid-teens.

She regards Mr Loto as more mature now and in their conversations he has expressed pro-social attitudes to work, earning money and contributing to society. She regards him as more considerate and respectful than he was as a young adult. He is helpful to family members.

She believes that Mr Loto’s music is very important to him and will help him to rehabilitate.

The second affidavit was affirmed by Langomi-e-Hau Latukefu on 2 March 2020. Mr Latukefu appears to be an accomplished “hip hop” musician. He is a member of a performing group named Koolism who won an Aria award in 2014. He has also been a “hip hop” music broadcaster for a national radio station during the last 12 years. He is something of a talent scout, mentoring emerging artists. He states that the market for “hip hop” music is “diverse, global and lucrative” (affidavit, at [4]). The emerging trend in Australia is that “hip hop” music is being led by artists of Pacific Islander heritage.

He first heard of Mr Loto’s music in 2018 (while the latter was still incarcerated), through the members of another successful musical group who spoke highly of him. His music had some following on social media and through this Mr Latukefu came to know of Mr Loto’s background and that he was in gaol.

He said that on first hearing his music he was struck by Mr Loto’s talent. He regards him as a skilful singer and rapper. He said that Mr Loto writes clever lyrics and delivers them with passion and conviction. He played one of Mr Loto’s songs on his radio program in February 2019 and it was very well received by his audience.

He has recently met Mr Loto and is aware that he was under an ISO. He said Mr Loto was very open in speaking about that and his criminal history. He gave Mr Loto advice about how to pursue his music career and expressed the opinion that Mr Loto has a lot of potential in the music industry. Income can be generated by uploading music onto digital platforms, live performance and the associated sale of merchandise.

He regarded it as important that Mr Loto collaborate with more established artists of a similar type.

Much of Mr Latukefu’s evidence suggests that it would be difficult for Mr Loto to progress musically while subject to an ESO. He points out that it’s necessary to travel to gigs and to record. He may need to spend long hours in recording studios. I infer that performances and recording most commonly may take place after dark, the latter because hire rates are likely to be cheaper then.

He also expressed the view that a direction given to Mr Loto about the content of his music inhibits his full musical expression of his life experience, which I infer from what he says is integral to “hip hop”. This restriction apparently followed the discovery of violently anti-authoritarian lyrics in Mr Loto’s cell in 2013. The lyrics spoke of violence against corrections officers. He was given a direction to desist from this behaviour. I interpolate that notwithstanding that Mr Loto’s prison offending occurred in disregard of the authority of corrections officers, none of it seems to have been directed at them. Mr Latukefu is of the view that permitting Mr Loto to sing about his life experience may be a vehicle enabling him to overcome his “adversity”.

I am satisfied to the requisite high degree of probability that Mr Loto poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

In coming to this conclusion I rely upon the assessment made by Dr Payne, Dr Ellis and Mr Sheehan. I fully appreciate that to the extent to which they have relied upon actuarial or statistical assessment tools, that approach has the limitations each of them in their own way acknowledge. In particular, I am conscious of the consideration that no such test can possibly be a predictor of a person’s future behaviour. Nor need they be. Each is concerned with the present assessment of the chance of the materialisation of a risk in the future. In that regard, I am satisfied that the Canadian empirical study to which Dr Payne referred is sufficiently apposite to have relevance in New South Wales.

I fully accept that these actuarial tools are not well calibrated for assessment of the risk of the commission of a serious violence offence, as opposed to a merely violent offence. However, I accept the assessment of Mr Sheehan that having regard to the pattern of Mr Loto’s past offending, including the degree of violence involved and his proclivity for improvising a weapon, should the risk materialise it is just as likely to involve the infliction of grievous bodily harm, even if Mr Loto’s intention does not rise above the intent of causing actual bodily harm to another person. This is sufficient for the definition in s 5A of the Act.

I have also had regard to the consideration that each of the experts agree that Mr Loto meets the DSM-5 criteria for anti-social personality disorder. And that Dr Payne and Dr Ellis are of the view that his condition has characteristics of psychopathy. Accepting that Dr Ellis does not consider him to be “a prototypical psychopath” (Exhibit A.1, p. 10), one cannot divorce this aspect from the diagnosis of PTSD which had an impact upon the development of his personality “in a complex fashion” (Exhibit A1, p. 10) and, of course, the history of substance use disorder involving alcohol.

Although since his release Mr Loto appears to have progressed well, or at least favourably, at this early stage, that progress may say more about the effectiveness of the level of intensive supervision to which he is subject than, in my judgment, the achievement of any real sustained change in Mr Loto. Having said that, his progress may give some early cause for optimism in relation to his prognosis.

Looking at the pattern of his past offending in company, when intoxicated, involving significant violence, extending to the improvisation of weapons, and occurring whilst on probation, on parole and in custody, in my judgment, it is too early to be confident his risk of violent re-offending has been reduced to acceptable levels. It seems to me, just as Woodburne SC DCJ found in substance, he is still a person who has not fully accepted responsibility for his past offending which must be a necessary pre-condition to rehabilitation. As Dr Ellis said (Exhibit A1, p. 12) Mr Loto continues to display “impoverished insight into his propensity for violence”. He still has a tendency to justify violence in certain contexts and to minimise the seriousness of it, notwithstanding its obvious consequences. Dr Ellis was of the view, notwithstanding progress, “it is too early to conclude any sustained change in personality function” (Exhibit A3, p. 4). I share this view and accept that evidence.

I accept Ms Chown’s evidence, and that his engagement with music, even if in a genre I am unable to appreciate, is essentially pro-social. However, these considerations do not displace the other factors to which I have referred.

To the extent to which Mr Coady argues on the basis of Mr Sheehan’s opinion that the risk can be adequately managed by the conditions of parole, I am unpersuaded. As I have said, I fully accept the evidence that supervision under an ESO is much more intensive and therefore much more protective of community safety. I do not regard them as equivalent. I am not satisfied the risk he poses would be acceptable if he were managed only under the supervision provided to a parolee by Community Corrections.

I appreciate that under s 9(1) of the Act, I have the discretion to dismiss the application. Mr Coady relies upon, for this purpose also, Mr Sheehan’s opinion that the current supervision under parole is adequately protective. As I have explained I am not of that view for the reasons I have already given. Essentially Mr Sheehan’s evidence was that his current supervision is appropriate. However, as I have said more than once, this is not parole per se, but a de facto ESO. In determining whether or not to make an ESO, I am required by law to treat the safety of the community as the paramount consideration. For the reasons I have already rehearsed when assessing the acceptability of the risk posed by Mr Loto and having regard to the s 9(3) mandatory considerations as I evaluate them, the only proper exercise of my discretion is to determine the State’s application by making the Extended Supervision Order sought.

In the circumstances of this case, there is no issue about the suitability, or appropriateness of the conditions to which Mr Loto was subject under the expired ISO. Indeed, it’s part of the argument against the making of an ESO that those very same conditions are appropriate and available under his current parole. I have already explained why I reject this argument. I will by order direct that Mr Loto comply with those same conditions under the ESO.

There has been some debate about the appropriate duration of the order. The State seeks an order of 3 years duration, rather than the statutory maximum of 5 years. In their initial reports, Dr Ellis and Mr Sheehan thought that appropriate. In his last report Mr Sheehan by necessary implication has changed his position (Exhibit B4). In light of the progress made and Mr Loto’s apparent compliance with supervision, in Mr Sheehan’s opinion it is likely that there may be “an early trend of attenuating risk as [Mr Loto] amasses more time free from aggressive behaviour and substance use” (Exhibit B4, p. 6 at [23]). In Mr Sheehan’s view, further decisions can be made about the need for supervision at the expiration of the period of parole. Dr Ellis has not altered his previously stated views about duration.

As Mr Loto remains a relatively young man, who has made progress under intensive supervision and, if Mr Latukefu’s assessment is correct, has some prospects of success in the creative arts, I am of the view, comfortable in the knowledge that a further application may be made if Mr Loto backslides, or fails to build on the early promise shown, during the currency of the current order, that a period of 2 years from the making of the order is an appropriate term.

I wish to observe that I am unable to discern amongst any of the many conditions to be imposed a condition which authorises the DSO to control Mr Loto’s thoughts or hinder his freedom of speech. Psychological therapy or counselling are other matters. Violent anti-authoritarianism is not unknown in the long history of popular music and there is no evidence before me that, of itself, it might lead Mr Loto to perpetrate further acts of violence. As I have said, his violence in custody was directed towards other inmates, rather than corrections officers. Writing lyrics with violent content did not change that. Doubtless Mr Loto may wish to reflect upon the advisability of writing about violence. Positive thoughts are more likely to promote his rehabilitation. He will no doubt wish to present himself in a positive and pro-social manner in his interactions with CSNSW. In the end, they will be matters for him.

My orders are:

The defendant must submit to the supervision of Corrective Services NSW ("CSNSW")

The defendant must report to the Department Supervising Officer ("DSO"), an employee of CSNSW, a delegate of the Commissioner of CSNSW or any other person supervising him as directed by the DSO.

The defendant must comply with any reasonable direction given by his DSO for the enforcement and implementation of the Order or any conditions of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing), it may be given electronically including by SMS or other messaging service.

The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

lf directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

lf the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

The defendant must not deviate from his approved schedule of movements except in an emergency.

The defendant must truthfully answer questions from his DSO, or any other person

The defendant must live at an address approved by his DSO. The DSO will not withhold approval for an address except where the DSO, on reasonable grounds, determines that the address would pose an increased risk of the defendant committing a serious offence.

The defendant must be at his approved address between 10:00pm and 6:00am unless other arrangements are approved by his DSO.

The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

The defendant must not spend the night anywhere other than his approved address or any alternative approved address without first obtaining the approval of his DSO. lf, prior to spending the night at a place other than the approved address, the defendant makes genuine attempts to make contact with his DSO which are unsuccessful, he must inform his DSO within 24 hours after spending the night elsewhere.

The defendant must promptly notify his DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight at his approved address (other than persons who ordinarily reside at his approved address), to the extent he is lawfully able to exclude that person or persons from the residence, without the prior approval of his DSO.

The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.

The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.

The defendant must not go to a place if his DSO tells him he cannot go there

lf the defendant is unemployed, the defendant must make take all reasonable steps to make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

The defendant must give his DSO at least 4 working days notice before commencing any paid employment or volunteer work and comply with any reasonable written direction from his DSO not to engage in particular employment or categories of employment or volunteer work.

The defendant must not:

The defendant must not consume alcohol without the prior approval of his DSO.

The defendant must submit to testing for drugs and alcohol as directed by his DSO

The defendant must not enter ‘licensed premises' (as that term is defined in the Liquor Act 2007) including licensed hotels and bars, but excluding cafes or restaurants, without the prior approval of his DSO.

The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation, and/or violence and anger management, as reasonably directed by his DSO, and must not discharge himself from such programs and courses without the prior approval of his DSO.

The defendant must not associate with people that his DSO tells him not to.

The defendant must not:

The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.

The defendant must give his DSO a list of all devices, services and applications he uses to communicate with (including that used for interned based communications). This includes phones, tablet devices, data storage devices or computers ("Devices"). This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.

The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant for communication, including the defendant's email addresses, in monitoring compliance with this order.

The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately.

The defendant must obey any reasonable directions by his DSO about the use of Devices including, but not limited to:

lf the DSO reasonably believes that a search(of the type referred to in sub paragraphs d to g below) is necessary:

For the purposes of the above condition:

During a search carried out pursuant to condition 32 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects:

The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 32 to 34 above.

The defendant must not change his name from "Francis Loto" or use any other name or change his appearance such that his visual appearance changes significantly, without advising his DSO of his intentions.

The defendant must not use any alias, log-in name, a name other than "Francis Loto" or any other name approved by his DSO, or use any email address other than those known to the DSO under condition 27 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

The defendant must let CSNSW photograph him when reasonably directed to do.

lf the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details within 7 days.

The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend, unless he provides a reasonable excuse to his DSO for non-attendance.

lf the defendant knowingly ceases to take any mental health medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify his DSO within 24 hours of ceasing to take the medication.

The defendant must agree to any treating psychologists, psychiatrists, counsellors or other mental health specialists and his general practitioner sharing reports on his progress with each other as considered appropriate by his treating medical practitioners, counsellors or other mental health specialists for the defendant's rehabilitation and/or risk-mitigation in relation to a serious offence.

The defendant must agree to his healthcare practitioners sharing information with his DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner's general opinion as to his development of insight into offending risk factors, substance abuse and to reduce his risk of offending.

The defendant must agree to any information being shared between those agencies that are involve in his supervision including, but not limited to, his DSO and CSNSW.