State of New South Wales v King (Final)

1. [1]

   By an amended summons filed in court on 12 December 2018 (“the amended summons”), the State of New South Wales (“the State”) sought an order that Robert Keith King (“the defendant”) be the subject to an extended supervision order for a period of 3 years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the schedule accompanying the amended summons.

2. [2]

   On 14 December 2018, the Court made the following orders arising from the State’s application as follows:

   1. (1)

      Pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant shall be subject to an extended supervision order for a period of 2 years from 14 December 2018; and

   2. (2)

      Pursuant to s 11 of the Act, the defendant is directed to comply, for the duration of the extended supervision order, with the conditions set out in the attached Schedule A.

3. [3]

   The conditions in Schedule A contain two variations to the conditions sought in the amended summons, namely, the omission of condition 28(b), which concerned the capacity to notify persons of the defendant’s criminal history, and a variation to condition 49 (which varied conditions appear in Annexure A to this judgment).

4. [4]

   It was indicated that reasons for judgment would be given at the earliest available opportunity. These are the reasons for decision.

THE INDEX OFFENCE

1. [5]

   It is appropriate to deal with the index offence at the outset of this judgment due to submissions advanced by the defendant as to the operation of s 5B(a) and (b) and, in particular, in that respect, that the present application did not satisfy the requirements of those provisions because the defendant was neither an “offender” nor a “supervised offender”. This contention was later abandoned, but nonetheless requires attention, in my view, albeit with a greater brevity that might otherwise be required, as it concerns the power of the Court to entertain the application.

2. [6]

   Between 5 and 11 November 2015, the defendant and his partner (“V5”), set up camp at the Cambridge Plateau picnic area at Coronation Park, Casino. On one occasion, the defendant committed an assault occasioning actual bodily harm by biting V5’s upper right forearm leaving a 2 centimetre lesion and swelling (“AOABH”). On another occasion, within the same period, the defendant caused his partner bodily harm by striking her to the head with his hand, knocking out her lower left incisor tooth, and causing a nasal septal cartledge haematoma (“the index offence”).

3. [7]

   The defendant was arrested and charged on 16 November 2015. On 2 December 2016, after pleading guilty, her Honour Judge Wells SC at the Lismore District Court sentenced the defendant to terms of imprisonment for AOABH and reckless grievous bodily harm. He was sentenced to 2 years and 6 months imprisonment (9 months for the AOABH and 2 years and 6 months for the index offence). A non-parole period of 18 months was fixed for the more serious offence, namely, the index offence.

4. [8]

   Those offences form part of a lengthy history of criminal offending, which will be discussed later in this judgment.

5. [9]

   Before exposing in greater detail the abandoned issues and, what ultimately then became the primary issue in the proceedings (namely, the satisfaction of requirement of s 5B(d)), it is useful to first give an overview of the relevant statutory framework and principles (the statement of the latter having been derived from a recent judgment of the Court in the State New South Wales v Cook (Final) [2019] NSWSC 51 at [22]-[29]).

OBJECTS OF THE ACT

1. [10]

   The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

2. [11]

   The word “ensure”, which is referred to in the objects of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [61].

APPLICATION OF THE ACT

1. [12]

   The State may apply for an extended supervision order against “an offender” pursuant to Pt 2 Div 1 s 5H. The proceedings are to be conducted as civil proceedings pursuant to s 21 of the Act.

2. [13]

   There are four preconditions to the making of an extended supervision order reflected in s 5B of the Act. That provision is as follows:

Unacceptable Risk

1. [14]

   The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk sex offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60].

2. [15]

   As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, two observations may be made.

3. [16]

   First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43] (per Harrison J)).

4. [17]

   Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:

Section 5B(a): Was the Defendant an Offender

1. [18]

   The first issue raised by the defendant concerned operation of s 5B(a) of the Act and, by necessary connection, the provisions of s 5B(b), so far as that provision picks up the definition of “offender” in s 4A.

2. [19]

   The thrust of the defendant's submission, in this respect, was as follows:

   1. (1)

      The definition of “offender” in s 4A required the Court to make its own determination as to whether the elements of the recklessly cause grievous bodily harm offence are satisfied. This is so notwithstanding the defendant having been convicted and sentenced for the same.

   2. (2)

      The Court cannot be satisfied that V5’s injury, based on what was contained in the agreed statement of facts (placed before the District Court in the sentencing of the offender for the index offence), amounts to a “grievous bodily harm” injury. It follows the Court would not be satisfied that the offence constitutes a “serious offence” or more specifically a “serious violence offence” as that term is defined in s 5A.

   3. (3)

      It follows the Court would not be satisfied that the defendant has served a sentence of imprisonment for a serious offence so as to satisfy the “offender” requirement in s 5B(a).

3. [20]

   I do not consider that that is how the provisions of ss 5B(a) and 5A of the Act should be construed.

4. [21]

   Prior to the commencement of the amendments on 6 December 2017, the Act provided for the making of an extended supervision order or continuing detention order with respect to either a “high risk violent offender” or a “high risk sex offender”. The terms “sex offender” and “violent offender” were defined in s 4 as follows:

5. [22]

   Amendments to that Act, which commenced on 6 December 2017, essentially amalgamated those two categories into the one category, namely “offender”.

6. [23]

   The term “offender” is defined in s 4A as follows:

7. [24]

   The current definition of “serious violence offence” relevantly provides (as it did pre-amendment) the following:

8. [25]

   I do not consider the construction earlier advanced for by the defendant may be accepted. Proof that the offence, for which a person was convicted and sentenced to full-time imprisonment, was constituted by the elements in s 5A(1) suffices to satisfy the definition of “offender”. I do not consider the legislation required, by the definition of offender in s 4A, the Court to make a separate factual determination as to whether, on the material before the Court in support of an application for an extended supervision order, there was proof of the necessary “elements” per se on the balance of probabilities. Rather it was sufficient to prove that there was a conviction for an offence which contained those elements.

9. [26]

   The term “offender” in s 4A operates where a person has been sentenced to imprisonment following conviction for a serious offence. When seen in that context, the word “conviction” must mean a conviction entered by a Court after an accused is found guilty at trial (whether by a verdict entered upon a not guilty plea or upon a plea of guilty). A Court cannot proceed to sentence an offender before such a determination is made: see discussion of principles in Maxwell v R (1996) 184 CLR 501 (“Maxwell”) at 507-511 (per Dawson and McHugh JJ) and at 529-30 (per Gaudron and Gummow JJ); Perejmibida v Skelcher (2002) 127 A Crim R 549; [2002] WASCA 2 (“Perejmibida”) at [26]-[27]; see also HA v Director of Public Prosecutions; SB v Director of Public Prosecutions (2003) 57 NSWLR 653; [2003] NSWSC 347 (“Ha v DPP”) at [10] (per Dunford J)..

10. [27]

    Thus, the term “offender” for the purposes of s 4A is directed to the fact of a person being sentenced to imprisonment following his or her conviction for a serious offence.

11. [28]

    When s 4A is read in conjunction with s 5A(1), it is clear that the relevant inquiry for the Court is whether the defendant was sentenced to full time imprisonment following conviction, for an offence that included elements of the kind identified in s 5A(1).

12. [29]

    Reference should be made of the judgment of Button J in the Decision Restricted [2016] NSWSC 1052.

13. [30]

    The matter before Button J was a preliminary hearing of an application by the State for the making of a “high risk violent offender” continuing detention order and extended supervision order. It was heard prior to the amendments that commenced on 6 December 2017.

14. [31]

    The defendant in that matter accepted he had been convicted and sentenced for the offence of inflicting grievous bodily harm while reckless to the infliction of actual bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) (the exact offence for which the defendant has been convicted). It was essentially contended the Court had to satisfy itself, on the balance of probabilities, that the “grievous bodily harm” element was proven to find that index offence was a “serious violence offence” as defined in s 5A.

15. [32]

    Button J rejected the defendant’s proposed construction (at [55]-[69]), holding, inter alia, that the explicit reference to “elements” in s 5A(2) gave rise to a powerful inference that it was the “elements” that had to be analysed rather than the evidence said to establish the same. Moreover, it was difficult to conceive the legislature intended the Court to embark on such an exercise given the obvious logistical difficulties it would involve (at [56]-[57]). His Honour held that the analysis “must be limited to the elements of an offence of which he was convicted, and for which he was sentenced to imprisonment (at [68]).

16. [33]

    In my view, that construction proposed by the defendant would result in unduly protracted proceedings and cannot be said to promote the objects of the Act. It would also be inconsistent with the incontrovertibility of the determination of guilt as well as the principle of finality (see discussion of principle of finality (as general principle) in Achurch v R (2015) 253 CLR 141; [2014] HCA 10).

17. [34]

    By this construction, the defendant is an offender falling within the scope of the opening words of s 5B(a), namely, “the person is an offender who is serving (or has served) a sentence of imprisonment for a serious offence” as he was convicted of and sentenced to imprisonment for a serious offence, the index offence, which was a serious indictable offence constituted by a person engaging in conduct that caused grievous bodily harm, namely, to V5, while being reckless as to causing such harm.

18. [35]

    The balance of the requirements of s 5B(a) are also satisfied, namely, whether the defendant is or has served the sentence for a serious offence either “in custody or under the supervision in the community”. There is no dispute that the defendant served his sentence in custody and also whilst subject to parole for short periods of time. This precondition is thereby satisfied.

19. [36]

    It should be noted, that the defendant, nonetheless sought to agitate issues relating to the index offence in relation to one of the remaining issues, namely, whether the Court could be properly be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if he is not kept under the supervision order, having regard to the provisions of s 5B(d).

20. [37]

    It was submitted that the facts in support of the charge of cause reckless grievous bodily harm (s 35(2)(b) of the Crimes Act) do not support the elements of “grievous bodily harm”. It was first submitted that, if the Court accepted that argument, it would mean that, in reality, the defendant had never committed a serious violence offence in his life time. Alternatively, it was submitted that, if the Court rejected that argument, the element of grievous bodily harm “is at the lower range of seriousness contemplated by the definition of ‘serious violence offence’ for the purposes of s 5A of the Act”.

21. [38]

    I will return to those considerations specifically in relation to the issues arising with respect to s 5B(d) of the Act.

Section 5B(b) Supervised Offender

1. [39]

   By s 5B(b), the Court must be satisfied that the defendant constitutes a “supervised offender” as defined in s 5I.

2. [40]

   Section 5I relevantly provides in the defendant’s case:

3. [41]

   Section 5I picks up the definition of “offender” in s 4A. As such, s 5I cannot be satisfied unless the defendant has been sentenced (following conviction) to imprisonment for a serious offence.

4. [42]

   The additional work done by s 5I is that it requires that the offender, at the time the application for the order is made (e.g. filing of the summons), be in custody or subject to supervision while serving a sentence of imprisonment for a serious offence or whilst under supervision of an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. It does not suffice if they have previously been sentenced for a serious offence but his or her sentence expired prior to the filing of the application. That is consistent with the judgment of R A Hulme J in State of New South Wales v Haouchar [2018] NSWSC 1436 (“Haoucher”) at [7]. In Haoucher, his Honour observed the definition in s 5I “is concerned with the offender’s status ‘when the application for the order is made’, which, in the case before R A Hulme J, referred to the time the summons was filed.

5. [43]

   The defendant was under supervision while serving a sentence of imprisonment, in the community, for the index offence, at the time the original summons was filed on 14 August 2018. The precondition in s 5B(b) is thereby satisfied.

Section 5B(c): Application

1. [44]

   By s 5B(c), an application for the extended supervision order must be made in accordance with s 5I. This essentially replicates the requirements arising in the “supervised offender” precondition. Having regard to my findings with respect to s 5B(a) and (b), it follows subs (c) is satisfied.

THE ISSUES

1. [45]

   After the abandonment of the issues associated with s 5B(a) and (b) of that Act, the parties agreed that three issues remained in the proceedings, which were described as follows:

   1. (1)

      Whether s 5B(d) is satisfied, namely is the Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another “serious offence” if he is not kept under the supervision of an extended supervision order.

   2. (2)

      Assuming the preconditions in s 5B are satisfied, should the Court in the exercise of its discretion to make an extended supervision order pursuant to s 9(1).

   3. (3)

      Assuming the Court makes an extended supervision order, what should be:

2. [46]

   As will be observed, the third issue has two parts. The defendant sought that, if an order was to be made, it not operate for a period exceeding 2 years. As to the second part, the defendant opposed condition 28(b) and sought variations to the terms of proposed conditions 26 and 49 of Schedule A to the amended summons.

3. [47]

   I propose to turn to the first nominated issue after considering other factors relevantly arising under s 9(3) of the Act.

Evidence before the Court

1. [48]

   The Court received in evidence on behalf of the State the following:

   1. (1)

      Four affidavits of Ms Elizabeth Wells sworn 10 August, 30 August, 20 November and 23 November 2018, respectively, the first of which had a substantial volume of material annexed and identified as exhibits EW1 and EW2 (pages 4-37 and 44-47 of Annexure A to the affidavit of 20 November 2018 were not admitted).

   2. (2)

      The affidavit of Ms Janelle Farroway, affirmed 5 December 2018 (the affidavit was not admitted against the defendant with respect to the consideration of the application of s 5B(d) of the Act).

   3. (3)

      A Risk Assessment Report prepared by Ms Amanda Pilley, dated 17 April 2018, annexed to the affidavit of Ms Wells, dated 10 August 2018 (the Risk Assessment Report was admitted upon the basis that the scoring under the actuarial tool STATIC-99R by Dr Seidler (see below) would be preferred to that of Ms Pilley).

   4. (4)

      The expert report of Dr Anthony Samuels, Consultant Psychiatrist, dated 24 October 2018.

   5. (5)

      The expert report of Dr Katie Seidler, Clinical and Forensic Psychologist, dated 5 November 2018.

2. [49]

   The defendant relied in evidence upon the following:

   1. (1)

      The affidavit of Ms Christine Hall, a solicitor employed by Legal Aid New South Wales, sworn 7 September 2018, attaching a report (undated) from Mr Peter Duncan, Caseworker at Maayu Mali Aboriginal Residential Rehabilitation Service (“Maayu Mali”), and a letter from Ms Donna Broughton, Community Drug and Alcohol Counsellor at St Vincent de Paul Society NSW, dated 2 August 2018; and

   2. (2)

      The affidavit of Ms Esther Mackie, a psychologist with the Tharawal Aboriginal Corporation.

Background Matters

1. [50]

   The defendant was born in Sydney on 13 January 1972 and is currently 46 years of age. He is of Aboriginal descent and has 5 siblings. His family relocated from Mount Druitt to Lismore when he was aged between 8 to 11 years of age. The defendant reported being sexually abused by an extended family member over a 3 year period during his childhood.

Criminal Offending

1. [51]

   In its written submission, the State produced a detailed chronology of the defendant’s passed offending, which is annexed to this judgment as Annexure B (the entries for 17 September to 30 November 2018 are discussed further below).

2. [52]

   In the preliminary hearing in this matter, Wilson J gave a broad description of the defendant’s past offending: State of New South Wales v King [2018] NSWSC 1408 (“King No 1”) at [5]-[25], which I adopt and extract below:

Nature of Offending

1. [53]

   Counsel for the defendant properly conceded that the defendant had a lengthy criminal history dating back to when he a juvenile and that a significant proportion of his offending behaviour related to offences of violence. He emphasised entries in the offending history relating to assault and AOABH. There had been a prevalence of such offences since the late 1990s, which typically occurred in the circumstances of a domestic relationship.

2. [54]

   The defendant has committed violent offences on no less than 11 separate occasions since 1992. That record is, notwithstanding the limited period of time he has spent in the community, owing to the vast amount of time he has been in prison.

3. [55]

   His victims are frequently vulnerable female partners. His offences have often involved punches or strikes to the head region (including uppercut punches), kicks to the head and body whilst the victim is on the ground and sometimes involved the threatened use of weapons. The offences are often committed whilst he is enraged and disinhibited by alcohol.

4. [56]

   The defendant’s offences of violence are not solely limited to females. He has also committed offences of violence against other persons he becomes aggrieved with, typically being staff who refuse to serve him alcohol or police responding to an incident involving him.

5. [57]

   I accept the submission of the defendant that less weight should be placed on the offence of carnal knowledge in the assessment of risk for the purposes of s 5B(d). The offence occurred when the defendant was a juvenile and involved a consensual act of sexual intercourse, which was not occasioned by alcohol abuse or violence. A custodial sentence was not imposed.

6. [58]

   Attention may be drawn to the defendant’s offending in 2000, with respect to a victim (“V2”), which is described in the chronology produced by the State as follows:

7. [59]

   It is also true, as submitted by the defendant, that the defendant has not committed a “serious sex offence” for the purposes of the Act. However something more should be said about the defendant’s 2005 conviction for sexual assault.

8. [60]

   On 2 September 2005, the defendant committed one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The victim met the defendant at a gathering on 1 September 2005. They travelled as part of a group to a house in Ballina where they consumed alcohol. The following day the defendant drove the victim back to Lismore. At one point she went to a public toilet and the defendant approached and committed an act of digital vaginal penetration on her. She struggled with him and fell to the floor, striking her head as she did so. The defendant was arrested that same day.

9. [61]

   On 24 July 2007, Dr Nelson prepared a psychological report for use in sentencing for the sexual assault offence. The defendant reported that at about the age of 24 years (in about 1996) he commenced using methamphetamine in addition to alcohol and cannabis abuse. He was injecting methamphetamine in his mid-twenties. His methamphetamine use culminated in an admission to the Richmond Clinic in a psychotic state on two occasions, the last being in June 2005 after which he was the subject of a community treatment order.

10. [62]

    In sentencing on 8 August 2007 Judge Norrish referred to the evidence given by his mother as to her ongoing support and the assistance she has given him in the past, including her belief that his attitude had recently changed in relation to his past abuse of alcohol.

11. [63]

    His Honour also had regard to the expert opinion of Dr Nelson, namely that the defendant displayed two severe personality disorders being borderline and paranoid. Persons with such disorders tended to be highly disordered with profoundly unstable relationships and moods, experienced excessive suspicion of others and had a tendency to be defensive while maintaining delusional beliefs of superiority. There was also some indicators of depression. Dr Nelson’s principal diagnosis was that of disordered personality with borderline paranoid depressive and dependent features. The defendant required treatment for his personality disorder and drug and alcohol rehabilitation.

12. [64]

    Dr Nelson also diagnosed the defendant with post-traumatic stress disorder concerning his childhood sexual abuse. However, Judge Norrish did not make a positive finding in this respect.

13. [65]

    As observed by Wilson J, Norrish DCJ sentenced the defendant for the sexual intercourse without consent to 5 years and 10 months imprisonment to commence 1 March 2006 (following the expiration of a larceny sentence) with a non-parole period of 4 years and 3 months.

14. [66]

    It follows from that analysis, I accept the submission of the State that, although the defendant’s offence of sexual intercourse without consent, committed in 2005 contrary to s 61I of the Crimes Act, it did not constitute a “serious sex offence”. It remains, however, a serious matter. Although about 13 years has passed since its commission, the defendant has been in custody for the majority of that time.

15. [67]

    I will return to the opinions of Drs Seidler and Samuels regarding the sexual offence later in this judgment. I accept the submission of the State that the weight that should be attributed to the sexual assault offence in any assessment of future risk should not be diminished by virtue of the offence not having been captured by the definition of a “serious sex offence” having regard to the provisions s 5(1)(a) of the Act.

16. [68]

    I return to the contention of the defendant that the injuries, the subject of the index offence did not amount to “grievous bodily harm”.

17. [69]

    That submission was not developed and it is not entirely clear whether the defendant was, by the submission, traversing his conviction for that offence. If that is the approach taken then it may not be accepted.

18. [70]

    The evidence of the defendant’s plea of guilty, as well as the acceptance of that plea by Wells SC DCJ, of itself, proves the grievous bodily harm element for the purposes of s 35(2) of the Crimes Act.

19. [71]

    The defendant’s plea of guilty to that offence constituted an admission by him of all necessary legal ingredients for the same (including the essential facts necessary to satisfy the elements): Maxwell at 510-511 (per Dawson and McHugh JJ). That is so, irrespective of that specified in the agreed statement of facts tended in the sentencing proceedings before Wells SC DCJ.

20. [72]

    The fact of the defendant’s plea of guilty can be taken as evidence of an admission against interest by him of the facts taken to constitute that offence: Bennett v Western Australia (2012) 223 A Crim R 419; [2012] WASCA 70 at [49] (per Martin CJ).

21. [73]

    As previously mentioned, a sentencing Court does not proceed to sentence an offender without first accepting a plea of guilty. Such acceptance amounts to the Court’s own determination of a person’s guilt (frequently referred to as the person’s “conviction” for the offence): Maxwell at 507; Perejmibida at [26]-[27]; HA v DPP.

22. [74]

    The Court’s determination of guilt forms part of its judgment. That determination or acceptance of guilt is indicated by its formal entry of the plea upon the record or in some other manner such as by the passing of sentence: Maxwell at 509 (per Dawson and McHugh JJ) and at 529-30 (per Gaudron and Gummow JJ); HA v DPP at [10] (per Dunford J).

23. [75]

    Her Honour Wells SC DCJ, in imposing sentence on the defendant, can be taken to have accepted the plea of guilty. That constituted her Honour’s own determination of his guilt with respect to each necessary element. Moreover, the finding by her Honour that the injury and was not at the worst end of the scale and fell towards the lower end of objective seriousness for this offence, implicitly involved a finding that the injury amounted to a grievous bodily harm.

24. [76]

    In any event, there is insufficient basis on the material before the Court to doubt that the injury sustained by V5 amounted to grievous bodily harm on the basis of the agreed statement of facts when taken in conjunction with the defendant's plea of guilty (and the acceptance of same by Wells SC DCJ).

25. [77]

    The term “grievous bodily harm” is defined in s 4 to include, inter alia, relevantly, “any permanent or serious disfiguring of the person”.

26. [78]

    In Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 (“Haoui”), a conviction appeal for an offence of dangerous driving causing grievous bodily harm, Beazley JA held:

27. [79]

    On the other hand, Johnston J (with whom McCallum J agreed), with respect to this issue, held:

28. [80]

    Swan v R [2016] NSWCCA 79 (“Swan”) concerned an appeal against conviction. The appellant was convicted after trial for offences including that against s 35(1) of the Crimes Act.

29. [81]

    Garling J (with whom R A Hulme agreed) summarised at [71] the principles relevant to determining whether an injury constitutes “grievous bodily harm” as:

30. [82]

    The grievous bodily harm injury in Swan was said to be a fracture to the transverse process of the L3 vertebra, which involved a fracture to a bone which was part of a lumbar vertebra.

31. [83]

    Garling J considered such an injury might be capable of amounting to grievous bodily harm (at [74]). However, in the circumstances of that case, it was not reasonably open to the jury to find, beyond reasonable doubt, that this element was proven. Wilson J dissented, finding it was reasonably open to find the injury amounted to grievous bodily harm, albeit very much at the lower end of the range.

32. [84]

    Swan and Haomi both concerned appeals against conviction following trial. The appellants were not taken to have admitted the essential ingredients to the offence by virtue of their pleas of not guilty.

33. [85]

    Nothing in the principles stated in those cases should result in any different conclusion in this respect.

34. [86]

    For completeness I accept the submission of the State that the injury sustained by V5, as described in this judgment (as set out in the agreed statement of facts), may properly be described as really serious bodily injury: Director of Public Prosecutions v Smith [1961] AC 290 at 334 (per Viscount Kilmuir LC); R v Perks (1986) 41 SASR 355 (per King CJ).

35. [87]

    That said, the injury occasioned by the index offence was clearly at the lower range of seriousness for the index offence (as found by Wells SC DCJ, who also took into account the offence was not planned or premeditated). It nonetheless remained a serious offence.

36. [88]

    Before leaving the index offence, it is instructive to refer to some of the other remarks on sentence by Wells SC DCJ in that respect. Her Honour stated that it was “too much of a habit for him to be violent towards his partners and, furthermore, to not show any remorse or shame for what he has done”. He had not completed any of his residential rehabilitation programs, with respect to his difficulties with alcohol, cannabis, and violence. There was a risk of “institutionalisation”. The defendant had shown little, if any, regard for apprehended violence orders or content conditional liberty orders by courts.

37. [89]

    Lastly, before turning to the next consideration under s 9(3), the defendant challenged the evidence of Dr Seidler that there had been an escalation in offences of assault or assault occasioning actual bodily harm relating to domestic violence. The defendant submitted there is consistency of these offences but I consider that Dr Seidler was entitled to point to the offences against V5 in 2015, as representing an escalation, by reference to the index offence.

Parole and Interim Supervision Order

1. [90]

   The discussion by Wilson J in King No 1, provides a useful discussion as to the defendant's conduct since his sentencing by Wells SC DCJ. Those observations, which I adopt, were as follows at [26]-[33]:

2. [91]

   Some further observations should be made regarding the defendant's conduct during and after the period he attended the Maayu Mali in Moree:

   1. (1)

      On 15 August 2018, during a meeting with Moree Community Corrections, the defendant presented “in a better frame of mind”, indicated he was now accepting of the processes of parole and admitted he was anxious about going into the community. He stated his relationship with V5 “will be different, as neither of them are drinking any more” and rejected the possibility of him attending Namatajira Haven with respect to alcohol rehabilitation for approximately 3 weeks stating he needed to “start my life”.

   2. (2)

      On 24 August 2018, the defendant completed the residential rehabilitation program at Maayu Mali and was directed by Community Corrections to reside with his brother, Mr Greg King, in Lismore pursuant to his parole conditions. He was fitted with an electronic monitoring device at this time, with a restriction zone enacted for Coffs Harbour, and directed to abstain from alcohol.

   3. (3)

      On 28 August 2018, Community Corrections directed the defendant not to have face to face contact with V5.

   4. (4)

      On 4 September 2018, the defendant advised Community Corrections his main goal was to be back in Coffs Harbour with V5 as he has support services set up for him there and that “he has learnt from his past and knows what he has to change”.

3. [92]

   The State made a submission regarding matters relevant to s 9(3)(e2) and (f). That submission was not in dispute, save for one aspect regarding conduct of the accused relating to the entry for 30 November 2018 in Annexure B to this judgment. I will return separately to that question but otherwise extract with my acceptance the submission of the State, in this respect, as follows:

4. [93]

   On 17 September 2018, at Lismore, the defendant was arrested by New South Wales Police and charged with committing a common assault on V5. That charge was withdrawn and dismissed at the Lismore local Court. An AVO was made in mandatory terms for V5’s protection but permitted contact.

5. [94]

   The Court received evidence as to the circumstances giving rise to those charges, which were accurately set out in the following submission by the State:

6. [95]

   The State submitted that the Court would not positively find that the defendant assaulted V5 on17 September 2018. The Court would be satisfied, at the very least, it was contended, that the defendant was engaged in a verbal altercation with V5 on that occasion. When engaged by police at the scene, the defendant’s breath smelt of alcohol and he appeared moderately affected by alcohol. He was also aggressive and verbally abusive to the police officer and V5.

7. [96]

   It was also submitted that those facts are relevant to the determination of the extended supervision order application. That incident occurred shortly after his completion of alcohol rehabilitation, and within days of an interim supervision order being made. It evidences his propensity for aggression, it was submitted, and the difficult dynamics in his relationship with V5.

8. [97]

   The defendant submitted that, in the absence of sworn evidence from police officers, that evidence has little weight. The defendant disputed the allegations and, without the evidence having been tested in the normal way, it would be unfair to the defendant to place too much weight upon the evidence.

9. [98]

   I accept the submission of the defendant that considerable caution needs to be exercised in the use of this evidence.

10. [99]

    No conclusion may be reached that the defendant assaulted V5 or engaged in any other criminal conduct in relation to that incident. However, the episode does underline just how contact with V5 by the defendant at the present time may be problematic for both the defendant and V5 and how such engagement possibly escalates risk factors for him.

11. [100]

    His explanation that the identification of the presence of alcohol was a result of having mixed with person consuming alcohol was not terribly convincing particularly given his history of alcohol abuse (even if the subject of more recent improvements). The independent experts considered this event was relevant to the defendant’s overall risk of offending. I will give it some, but modest, weight in assessing such risks.

Treatment and Rehabilitation Programs

1. [101]

   On 13 January 2010, the defendant declined to be assessed for participation in the Custody-based Intensive Treatment program (“CUBIT”) for sex offenders.

2. [102]

   On 27 May 2011, the defendant declined to be referred for eligibility to participate in the Violent Offender Therapeutic Program (“VOTP”).

3. [103]

   As at 3 January 2018, the defendant reportedly declined the offer to participate in an Intensive Drug and Alcohol Treatment Program as he did not wish to “move to a metro gaol”.

4. [104]

   Whilst in custody the defendant was assessed suitable for EQUIPS Foundation, EQUIPS Addiction and EQUIPS Domestic Abuse programs. The defendant refused to be referred to those programs on three occasions as he did not see any benefit for himself in attending.

5. [105]

   The State submitted, correctly in my view, that the defendant's engagement in the Maayu Mali was problematic. Whilst limited weight may be placed upon the statement made by the defendant to Community Corrections as to his violence, namely, “it does take two though” on 17 July 2018, it does, however, raise questions about the genuineness of his engagement and insight into his propensity for violence (I will return to these questions in discussing the assessment of that independent experts).

6. [106]

   The defendant has spent much of 2018 in restrictive environments, whether that be in custody (March to late May 2018), in a rehabilitation facility (June to August) or in a supervised residential facility in Campbelltown (September to present). Since his move to Campbelltown he has not come to the adverse attention of police.

7. [107]

   As to the last of those residential arrangements, the following may be noted:

   1. (1)

      On 21 September 2018, the defendant was directed to reside at the Integrated Support Centre (ISC) at Campbelltown, Sydney. On admission he was prescribed antidepressant medication.

   2. (2)

      On 24 September 2018, the defendant reported to the ESO Team that he wanted to reside in Coffs Harbour where V5 was living or in Lismore where his family was living. He did not understand why he was subject to supervision given that he had successfully completed a residential rehabilitation program in Moree.

   3. (3)

      On 30 September 2018, the defendant stated in an interview with the ESO Team he wanted to resume his relationship with V5 in the Lismore area and conceded that V5 herself struggled with alcohol issues (which the ESO Team explained might put him in a high-risk situation).

   4. (4)

      On 10 October 2018, the defendant advised that the Local Court had varied his bail conditions to remove the no-contact prohibition for V5. He now wished to relocate to Lismore or Coffs Harbour to resume their relationship.

8. [108]

   On 11 October 2018, during an interview with the ESO Team, the defendant was noted to be attending Alcoholics Anonymous (AA) meetings each Friday and Saturday and reported benefiting from the sessions. The defendant also denied drinking on 17 September 2018 and claimed “…he was with a lot of ‘drinkers’ that he had known and thus smelt of alcohol” (the State submitted the Court would be very circumspect about this claim).

9. [109]

   That same day the ESO Team discussed with the defendant him undertaking a domestic violence and anger management program with Tharawal Aboriginal Corporation and him engaging with a psychologist/social worker at that service with respect to domestic violence, post-traumatic stress disorder and childhood abuse. Discussion was also had about the direction in place prohibiting him contact with V5. The defendant was advised that, if an extended supervision order is made he would not be permitted contact with V5 for at least 18 months (at which time that prohibition would be reviewed). Discussion was also had regarding the defendant finding suitable alternative accommodation from that of the ISC.

10. [110]

    On 24 October 2018, the defendant reported he was “deriving great benefit from his participation in the Tharawal program” but he did not want to settle in Sydney and wanted to return to his former area.

11. [111]

    On 2 November 2018, the defendant reported he was engaging with a psychologist and counsellor with Tharawal Aboriginal Corporation and discussing his childhood and other issues. He was also attending a men’s group with that service. The defendant then stated he “wanted to get rid of those counsellors” as he indicated that they were not meeting his expectations and he wanted to speak to his psychologist on a daily basis.

12. [112]

    On 6 November 2018, the ESO Team was notified by the defendant’s counsellor at the Tharawal Aboriginal Corporation that the defendant had signed a document withdrawing consent for its staff to contact the ESO Team staff with information as to his engagement with herself and the psychologist. The ESO Team determined it would attempt to work with the defendant to change his position on this.

13. [113]

    On 9 November 2018, the defendant reported he would be seeking accommodation in Lismore, whilst attending Lismore for Court with respect to his recent criminal charge, and would be moving back to the area rather than looking for accommodation in Sydney.

Risk Assessment Report

1. [114]

   The Court has before it a Risk Assessment Report prepared by Ms Amanda Pilley dated 17 April 2018, endorsed by Dr Cherice Cieplucha, Chief Foresic Psychologist with the Risk Management Programs Unit of Corrective Services New South Wales. Ms Pilley is employed as a Senior Psychologist with the High-Intensity Program Unit: Violent Offenders Therapeutic Program. Ms Pilley conducted an interview with the defendant on 5 April 2018 via audio-visual link.

2. [115]

   Wilson J in King No 1, provided a summary and analysis of this report which, with respect, is correct. Part of that judgment, which substantially represented a summary of the report, is set out below (at [36]-[62]):

Reports of Court Appointed Experts

1. [116]

   The State divided a discussion of the expert reports helpfully under a number of headings, which I will adopt for convenience in this judgment. They are as follows:

   1. (1)

      opinion as to the defendant’s functioning, insight and risk of violent offending;

   2. (2)

      relevance of incident of 17 September 2018; and

   3. (3)

      actuarial and statistical assessments.

2. [117]

   I have examined closely the State’s summary of the expert reports under those findings. It is accurate and forms the foundation for the summary which appears below.

3. [118]

   As earlier mentioned, the Drs Samuels and Seidler produced reports.

4. [119]

   Each expert was given additional evidence to consider prior to giving their evidence at the hearing. That material consisted of the following:

   1. (1)

      Fact Sheets for charges H 8402980 and H 59416685, respectively;

   2. (2)

      Recent OIMS notes; and

   3. (3)

      Affidavit of Ms Farroway, affirmed 5 December 2018.

5. [120]

   The experts were cross examined.

6. [121]

   The defendant reported to Dr Seidler that he first consumed alcohol when he was 9 years of age and drank independently from 12 years of age. His use of alcohol from that point quickly became heavy and problematic (at [50]). Whilst alcohol use is the most significant substance risk issue, the defendant also reported using crystal methamphetamines in 2017 and there is an appreciable risk he might use that type of substance again in the future.

7. [122]

   The defendant’s history provides little confidence that he can maintain an alcohol and offence-free lifestyle in the community. Nor did he present with a well-developed plan to avoid offending other than him making generalised comments about how he would not reoffend.

8. [123]

   The defendant acknowledged experiencing difficulties in the Maayu Mali although he reported that he still attained some benefit from it.

9. [124]

   The defendant’s report to Dr Seidler of his sex offending in 2005 differed significantly to the facts admitted and relied on in sentencing. The defendant’s report of that offending is described by Dr Seidler as follows:

10. [125]

    In relation to the defendant’s level of insight for the recklessly causing grievous bodily harm offence, Dr Seidler reported:

11. [126]

    In summary, in Dr Seidler’s view, the defendant:

    1. (1)

       had struggled with alcoholism throughout his life, chronically relapsing to heavy alcohol abuse whenever he was at liberty in the community. His strongly expressed desire to maintain sobriety, and his confidence he can do so, is naïve and seriously understated the risk of relapse in his case;.

    2. (2)

       presented with an antisocial personality disorder which has driven much of his general offending as well as his sexual offending which appeared to be a function of his impulsivity, egocentricity and generalised lack of respect and empathy for certain others;

    3. (3)

       was a chronic violent offender, both within and external to his relationships, with his violence in domestic contexts being more severe and persistent. Alcohol operates as a disinhibiting factor;

    4. (4)

       had a significant history of violence which had continued unabated and remained unaddressed, despite his claims to the contrary;

    5. (5)

       alcohol abuse, antisocial attitudes and peers, poor emotional and interpersonal coping skills and lack of a structured routine were factors in his offending. He presented as naïve about his potential for relapse and unrealistic about his capacity to achieve change unassisted. He also continued to demonstrate a lack of true responsibility and accountability for his past abusive and illegal behaviours. He required support, structure and supervision to keep him motivated and on track to achieve his goals;

    6. (6)

       presented with chronic emotional coping deficits and poor self-regulation, which has contributed to his violence;

    7. (7)

       the most salient risk for reoffending was relapsing into alcohol abuse as well as being in an intimate relationship where there was conflict or emotional challenges; and

    8. (8)

       future victims of violence would mostly likely be an intimate partner but the risk also extended to secondary victims with his risk for future sexual abuse being much lower.

12. [127]

    With respect to the defendant’s pattern of violent offending, Dr Seidler gave evidence during cross-examination that:

13. [128]

    The defendant criticised Dr Seidler’s reference to an escalation in his violent offending by reference to the index offence. Whilst Dr Seidler’s opinion was a clinical and not a criminological assessment, it appears to me the assessment was open to her, given the seriousness of the index offence (even if at the low end of that type of offence) and the injuries inflicted.

14. [129]

    Dr Seidler elaborated, again in cross-examination, on the implications of the change in the defendant’s offending pattern over time, with regard to the risks posed by his offending, giving evidence that there has been:

15. [130]

    Dr Seidler considered the recency of the index offence to be significant as to the escalation and the defendant’s risk of future offending, giving evidence in cross-examination that:

16. [131]

    When some of the defendant’s past offences were put to Dr Seidler in re-examination, such as his assault on V2 in April 2000 whereby he punched her to the face and then kicked her to the body and face whilst she was on the ground, Dr Seidler agreed that the potential for injury with such offences is significant. The nature of that type of offending was also relevant to her clinical assessment as to the risk posed by him in terms of future violent offending.

17. [132]

    Dr Samuels observed that the defendant has often impressed people in the past as to his motivation to change, although he had never followed through with that and only lasted a few months in the community before reoffending.

18. [133]

    Dr Samuels further noted:

19. [134]

    The defendant does not suffer from a psychiatric condition. He does have some residual post traumatic-type features he does not meet the DSM-5 criteria for post-traumatic stress disorder at this stage. The defendant did satisfy the DSM-5 criteria for:

    1. (1)

       substance use disorder, predominantly for alcohol but at times stimulants and cannabis, and

    2. (2)

       antisocial personality disorder, with a history of conduct problems consistent with the evidence of manipulative behaviours as regards his assertions about changing his lifestyle (which is never sustained), pervasive disregard for others as manifested by, inter alia, his impulsivity and aggressiveness (repeated assaults) and his lack of remorse.

20. [135]

    The defendant’s salient risk factors included:

    1. (1)

       continued contact with V5, with his most recent serious offending directed towards her and current pending charges regarding further alleged violence upon her;

    2. (2)

       tendency to minimise what occurred with past offending (e.g. sexual offending) and omit salient details, as evidenced by his account of the sexual assault committed in 2005 which was a “serious sexual offence where [the defendant] entered a woman’s toilet, was extremely forceful and intimidating and injured the victim physically”; and

    3. (3)

       consumption of alcohol (described as his most “pertinent dynamic risk factor”) whereby the defendant is at high risk of offending both for physical and sexual violence when intoxicated. The defendant generally claims to have no memory of what occurs during such offending and has few protective factors.

21. [136]

    In Dr Samuels’ opinion:

22. [137]

    With respect to the defendant’s behaviours and the impact of alcohol abuse on his risk of reoffending, Dr Samuels gave evidence in cross-examination:

23. [138]

    With respect to the nature of the defendant’s past offending (i.e. blows to the victim’s head, kicking on the ground), Dr Samuels agreed in re-examination in terms of the potential injury that might be caused was concerning with the past offences being “…significant serious patterns of violence”.

24. [139]

    Both experts considered that the defendant’s actions on 17 September 2018 to be relevant to his overall risk of offending.

25. [140]

    In Dr Seidler’s view in evidence-in-chief, it was relevant in that it was:

26. [141]

    Dr Samuels gave evidence-in-chief that:

27. [142]

    Actuarial instruments are used to indicate a person’s likelihood of committing a violence or sexual offence during a future period of time. The scores produced by these tools do not differentiate between the severity of offences that might be committed (e.g. whether a grievous bodily harm offence as compared to an assault occasioning actual bodily harm offence) as accepted by Dr Seidler and emphasised by the defendant – the tools do not distinguish between offences that are considered serious and serious violent offences.

28. [143]

    The actuarial tools are but one part of the risk assessment process. A clinician performing a risk analysis will take into account various matters including:

    1. (1)

       actuarial or statistical scores;

    2. (2)

       other information including going to the offences committed by a person, their past mental health diagnoses and treatment, current circumstances and factors underlying past offending; and

    3. (3)

       the clinician’s own clinical judgment which is informed, in part, by his or her own experience.

29. [144]

    As Dr Seidler explained in her oral evidence:

30. [145]

    Using this instrument, Dr Seidler scored the defendant as “38” which suggests he is a very high risk of future antisocial conduct in general.

31. [146]

    Using this instrument, Dr Seidler scored the defendant to be at high risk of future criminal violence. Dr Seidler further commented that, despite recent reported improvements in motivation to address his criminogenic needs and his preparedness to engage in treatment, he continued to lack insight into the antecedents to his violence as well as the need for active and individual risk management. His future plans will continue to expose him to risk situations.

32. [147]

    Dr Samuels took into account the actuarial assessments carried out by Ms Pilley in her report. Those assessments indicated high risk of recidivism. In Dr Samuels view, these measures likely underestimated the defendant’s level of risk given how quickly he tends to reoffend following release from custody. In evidence-in-chief, Dr Samuels further elaborated stating:

33. [148]

    Using this instrument, Dr Seidler scored the defendant as “29”, which corresponds to a high risk of future domestic violence related behaviour.

34. [149]

    Using this instrument, Dr Seidler assessed the defendant to have few protective factors at present other than tight external controls through the ISO and the presence of reasonable financial management skills.

35. [150]

    Dr Seidler scored the defendant to be “5” on the STATIC-99R, which places him at the Above Average Risk Category of sex offending. That score is lower than that determined by Ms Pilley (score of “7”). Dr Seidler explained in her report her view as to where the difference arises (at paras 147-152). I accept Dr Seidler’s explanation for her scoring and will accept her evidence in that respect, although even on Ms Pilley’s scoring under STATIC-99R, the defendant remained at an above average risk of future sex offending.

36. [151]

    In his oral evidence Dr Samuels took no issue with the manner in which Dr Seidler scored the defendant. However, Dr Samuels maintained the view that the risk scores calculated using actuarial risk measures like the STATIC-99R and the Violence Risk Scale (“VRS”) likely underestimate the defendant’s level of risk given that such estimates are usually over a longer period (e.g. 5 years) and the tendency of the defendant to recidivate within a short period following his release (e.g. reoffending within weeks to months). Dr Samuels confirmed with respect to the STATIC-99R:

Corrective Services NSW Report as to Management in the Community: s 9(3)(d1)

1. [152]

   The strategy proposed by the ESO Team for the defendant’s management is outlined in the Risk Management Report dated 14 May 2018, the supplementary Risk Management report dated 22 August 2018, and Ms Farroway’s affidavit affirmed 5 December 2018.

2. [153]

   With respect to logistical arrangements, that included:

   1. (1)

      weekly face to face interviews by supervising Community Corrections officers at a Community Corrections office, the defendant’s place of residence (with his brother in Lismore) or via field visits.

   2. (2)

      scheduled and unannounced home visits, field visits and surveillance would be conducted by the ESO Team at a minimum of once per month.

   3. (3)

      the ESO Team making make third party contacts including with his therapist, community psychologist, employment service caseworker, the Electronic and External Monitoring Unit (“EEMU”), ESO Investigation Team (“ESOIT”), Corrective Services NSW Intelligence Group, police, and the defendant’s family to determine if there are any concerns relating to him.

   4. (4)

      subject to any order of the Court, requiring the defendant to submit a weekly schedule of movements for consideration and approval. He would only be approved to engage in pro-social activities and be required to adhere to his approved schedule. Electronic monitoring and weekly schedules would assist the ESO Team to gauge his attitudes and ameliorate the risk of him engaging in high-risk situations or unsuitable activities.

   5. (5)

      the ESO Team would also refer the defendant to CSNSW psychological services for assessment of his treatment needs and would also refer him to psychiatric assessments and require him to participate in drug and alcohol counselling.

The Defendant’s Evidence

1. [154]

   In Mr Duncan's correspondence on behalf of Maayu Mali, he states that the defendant participated in all centre activities to address his drug and alcohol issues which were listed in his correspondence. These included self-awareness groups with Ms Broughton and cognitive behavioural therapy which incorporated “Thoughts, Beliefs and Values and Healthy Recovery in regards to Drug & Alcohol Addiction”.

2. [155]

   Mr Duggan also noted that the defendant “denied any advocacy on his behalf for any case management in relation to himself and his key worker in achieving his treatment goals. [The defendant] believes it is empowering “for him to accomplish on his own accord and we are comfortable to allow [the defendant] to display his independence”.

3. [156]

   Ms Broughton's report, which concerned the defendant's participation in counselling, was positive. She stated that the defendant engaged in counselling, worked tirelessly in processing “the trauma and mistakes of the past” and put new behavioural strategies in place. She referred to his “management and regulation of emotions towards a calm and responsive attitude no matter the situation”.

4. [157]

   Mr Broughton said the defendant always behaved in a respectful and well-manner toward her and commended him on the work he had done to this point. She considered he should reside in Lismore and mentioned that he had organised support systems in Coffs Harbour for himself and his partner to continue mental health growth.

5. [158]

   The defendant also relied upon a report of Ms Mackie, a psychologist with the Tharawal Aboriginal Corporation. The defendant had been a patient of Ms Mackie since 22 October 2018.

6. [159]

   Ms Mackie indicated that, except for knowing that the defendant had spent a long time in custody she did not know his offending history. That had not formed part of their counselling sessions.

7. [160]

   On 5 December 2018, Ms Mackie conducted a clinical assessment of the defendant and came to the conclusion that he was suffering from post-traumatic stress disorder. She described the symptoms that resulted in that conclusion and described a stabbing incident in February 2017 which “related to the development of his current PTSD symptomatology”. His symptoms were, she opined, exacerbated due to him not feeling safe in the Campbelltown area. This is the area where one of the individuals who attacked him in jail had affiliates in a gang.

8. [161]

   Ms Mackie also stated that the defendant presented with clear indicators that he was motivated to continue to remain abstinent from alcohol. He had indicated to her that he would like to make his parents, particularly his father, proud of him. The defendant also presented as a very spiritual and cultured man. His traditional values and roles were extremely important him.

9. [162]

   Ms Mackie opined that he was heading down the track of wanting to change his life and to help other Aboriginal people who were in a similar position. He longed to live “on country” in Coffs Harbour or Lismore and had enrolled to study at TAFE next year.

10. [163]

    Finally, Ms Mackie opined::

11. [164]

    I accept the evidence led on defendant's behalf is generally positive and reflects an intention in the defendant to overcome his long-term afflictions and remove himself from criminal activities. The expressions by Ms Mackie as to his separation from country and the importance of this in his life are important and must not be underestimated in the assessment of the defendant's case. However, the evidence needs to be approached with some caution, particularly in light of the independent expert evidence.

12. [165]

    Ms Broughton and Ms Mackie did not have long-standing therapeutic relationships with the defendant. It is unclear what information or materials they had received concerning his past history and difficulties in contrast with the extensive material received by those experts. Ms Mackie readily conceded she knew nothing of the defendant’s offending history.

13. [166]

    Reference should also be made of the opinions expressed by Dr Samuels as to the defendant's capacity, however well-intentioned, of impressing people in the past as to his desire and ability to change which has not come to fruition. The State pointed to the reports in 1997 including a pre-release report that the defendant appeared to be a “changed man” who had made significant progress in psychological counselling. Reference is also made to the report to Community Corrections dated 28 February 2018, by which an officer recorded the defendant being very motivated and positive about his future and accepting the needs to change his life. These aspirations were by and large not met. These factors affect the weight that may be given to the defendant’s evidence for the purposes of undertaking deliberations with respect to s 5B(d).

Conclusion: s 5B(d)

1. [167]

   I earlier referred to various aspects of the defendant's submissions concerning his offending history. Those submissions emphasised that whether the index offence lies in the low range of objective seriousness is a relevant consideration in relation to an assessment of the risk of the commission of another single “serious offence”. It was also relevant to the exercise of the Court’s discretion as to whether an order should be imposed.

2. [168]

   That submission may be accepted as was a further submission, which I earlier addressed, that the offense of reckless grievous bodily harm was in fact, in the low range.

3. [169]

   The defendant also submitted that both Drs Seidler and Samuels agreed that the likelihood of the commission of further offence was limited to offences involving violence rather than sex offences, although the defendant did not wish to be heard that a sex offence did not involve some violent aspects. It was submitted that the Court should treat as speculation any contention by the State that the nature of the violence inflicted by the defendant during the course of his criminal history, including the punching and kicking of victims in various parts of their body, produced “a likely risk” of very serious injury. The more likely outcome was that any further offending would result in lower order injuries of the type the defendant had previously committed. It was submitted that Dr Samuels agreed that the likelihood of further violence in the future would be consistent with the types of assaults which had occurred in the past which were lower level assaults (which did not involve a serious violence offence).

4. [170]

   It was submitted, by the defendant, that in reviewing the risk of the commission of a serious offence it is highly relevant to consider past behaviour. The defendant had never really committed a serious violence offence. The experts placed little emphasis on the legal definition of serious violence offences and based their conclusions on their general opinion that violent offences are by their nature very serious. Because the experts refer to violence generally, including lower-level offences, their evidence is potentially unreliable and unhelpful in the assessment of risk.

5. [171]

   The Court should also have regard to the fact the defendant has not committed any acts of violence since 2015, although it is accepted that a proportion of this period relates to time in custody and at a residential rehabilitation centre.

6. [172]

   Overall, it was accepted that the defendant had a troubled criminal history which included numerous offences for violence but a recidivist violence offender is not necessarily a person who is likely to commit a “serious violence offence”. The fact that the defendant may not have ever, in reality, committed a serious violence offence, it was contended, is highly relevant in this respect.

7. [173]

   In my view, the submissions advanced by the defendant in this respect failed to grapple with the true nature of the defendant's historical offending and the force and the significance of the independent expert evidence bearing upon the risk of the defendant committing another serious offence if not kept under supervision under an extended supervision order. Further, I prefer the opinion of those experts over that of Ms Mackie and Ms Broughton, having regard to the material available to them to make their assessment and their respective fields of expertise.

8. [174]

   Whilst it is true that the history of the defendant’s offences of violence have been below the threshold for serious offences, save for the index offence, and the index offence itself, whilst constituting, as I found, a serious offence, was in the low range, those descriptions of the offending do not sufficiently comprehend the relationship between that offending and the risk of committing another serious offence by the defendant (which I consider to be unacceptable).

9. [175]

   The defendant has spent the vast majority of his adult life in prison. He has an entrenched history of violence and alcohol abuse.

10. [176]

    I agree with the submission that he has an established cycle of exiting prison sober, rapidly relapsing into binge drinking, resuming unstable relationships and then offending violently before returning to custody. Since 1992, the defendant, as previously mentioned, has committed violence offences on no less than 11 separate occasions, notwithstanding the limited period of time that he has spent in the community owing to the fact he was in prison for the vast majority of his adult life.

11. [177]

    His victims are frequently vulnerable females and the offences involved punches or strikes to the head, kicks to the head and body often whilst the victim is on the ground and once involving the threatened use of a weapon. The offences are frequently committed whilst he is engaged in rage and disinhibited by alcohol.

12. [178]

    The defendant has recently completed alcohol rehabilitation in the community. However, his engagement with such rehabilitation remains problematic. Dr Seidler opined that, whilst the defendant strongly expressed desire to maintain sobriety and a confidence that he can do so, such confidence is naive and seriously understates the risk of relapse in his case. Dr Samuels expressed concerns about the defendant’s level of insight and understanding of his offending behaviour and felt that his plans for the future were somewhat unrealistic and a little grandiose. He also found that the defendant had displayed a long-standing pattern of impulsivity, irresponsibility and a failure to conform to social norms.

13. [179]

    In addition to those considerations, there are other further significant difficulties with the defendant's contention that the most likely outcome of further offending would be below the threshold of serious offences for the following reasons:

    1. (1)

       As discussed above, there is a significant risk that the defendant may relapse into alcohol abuse and continue relationships with vulnerable partners that are marked by instability and conflict. There is a high risk of him acting in a violent manner in those circumstances.

    2. (2)

       The defendant was diagnosed by both experts with an antisocial personality disorder. Dr Samuels said the defendant displayed a long-standing pattern of impulsivity. Dr Seidler scored the defendant to be at high risk of future criminal violence under the HCR-20 instrument. She scored the defendant to be five on the STATIC-99R, which placed him at the above average risk category of sex offending. Dr Samuels opined that the risk calculated using actuarial risk measures, like STATIC-99R and VRS, likely underestimated the defendant’s level of risk given that such estimates are usually over a longer period. As Dr Seidler explained, the use of such risk assessment tools do not stipulate the types of violent offending, which may occur in the future but that it was up to the clinician or assessor to take the information available to them through documentation, interviews and the like to make a clinical assessment as to the likelihood of future behaviour.

    3. (3)

       Dr Seidler assessed that there were several factors which raised concerns as to whether the violence previously engaged in by the defendant in his criminal offending would potentially increase too. She also opined that the frequency of his offending would increase. She pointed to the public nature of his more recent offending. This indicated that the defendant was becoming less inhibited. Dr Samuels opined that, if alcohol or substance abuse is involved, the potential for far more violent offences exists. There remains real doubt as to the defendant’s present progress regarding alcohol abuse.

    4. (4)

       I do not consider the fact that the defendant has only one previous serious offence falling within the low range, confines (as the defendant contended) the risk of a further violence offence to that category of offending. This is both based upon the expert opinion to which I have referred to, but also the propensity of the defendant to strike his victims to the head – heightening the risk of his victims suffering grievous bodily harm. The defendant has also, on one occasion, possessed and threatened to use a weapon, namely, a knife. That the injuries incurred as a result of the violence inflicted by the defendant have not resulted in more serious offences cannot be attributed, as the defendant seems to do, to some measure of control or design exercised by the defendant or the nature of the violence he inflicted, particularly having regard to the opinions of the independent experts to which I have referred. I agree with the submission of the State that it is mere good fortune that a more serious injury has not resulted.

14. [180]

    Thus, there is an unacceptable risk of the resultant injuries being sufficiently serious as to meet the definition of serious offence having regard to the threshold involved under the Act.

15. [181]

    I am satisfied the defendant poses a high risk of committing future offences of violence and further satisfied that the risk of any injury caused by future acts of violence as being sufficiently serious as to constitute a risk of grievous bodily harm or more serious injuries attracting more severe consequences, if the defendant is not the subject of supervision under an extended supervision order. Those risks are unacceptable due to the nature of risk I have described as deriving from proper analysis of the defendant’s violent offending history and expert opinion.

16. [182]

    I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

Should an Extended Supervision Order be made?

1. [183]

   The defendant submitted that, notwithstanding an affirmative finding under s 5B(d), the Court should exercise its discretion to refuse to make an extended supervision order. A considerable part of this submission overlapped with the submission advanced with respect to other determination under s 5B(d). I will not repeat my findings in that respect, and, for the most part, consider the findings made and conclusion reached, with respect to s 5B(d), should result in a conclusion that a discretion should be exercised in favour of an extended supervision order.

2. [184]

   It was submitted by the defendant that he had made considerable progress in relation to his rehabilitation as was acknowledged by Dr Samuels and as reflected in the defendant's evidence. It was submitted that the evidence that the defendant had smelled of alcohol in May 2018 did not mean that he consumed alcohol. I have dealt with those submissions effectively under the consideration of s 5B(d).

3. [185]

   Notwithstanding the defendant's commendable efforts in this respect, his engagement with and success under rehabilitation (and ultimately control of alcohol consumption) remains problematic and, as opined by the experts, he continues to display an overly optimistic belief that he can abstain from drinking and has concerning views as to his responsibility for his violent offending. There remain serious questions about his insight and impulsivity. I have earlier found that the proposition that the defendant had not consumed any alcohol in May 2018 may be doubted even though a finding may not be made that he was intoxicated. The defendant's engagement in the May 2018 incident with V5 also raises doubts about his rehabilitation, as mentioned by the expert witnesses. That incident also raises concern about association with V5.

4. [186]

   The defendant referred to the fact that he did not commit any criminal offences since 2015, a period of three years.

5. [187]

   That submission, however, overlooks that the defendant was released on parole on 16 September 2017 and had parole revoked on 28 March 2018. I have previously made mention of his performance on parole and other forms of supervision.

6. [188]

   A further submission was made which overlapped with submissions as to appropriate conditions, to which I will return, namely, a highly significant issue for the defendant was his Aboriginality and his need to be close to family and land where he belongs in the northern parts of New South Wales. Reference was made, in this respect, to the evidence of Ms Farroway that, if an extended supervision order was imposed, it is inevitable the defendant would be required to live in Sydney. Reference was also made to the prospect of the defendant seeing V5 during the currency of his order.

7. [189]

   I consider that the issue raised on behalf of the defendant, concerning his Aboriginality, is a particularly important issue and one that requires careful consideration. However, it must be borne in mind that the defendant has spent a very significant part of his life in custody because of his offending history and that one function of any extended supervision order is rehabilitation which is not exclusive of the defendant's attendance at special functions near his family and land. The order may, therefore, not only gradually allow for greater cultural engagement but a long term restitution of the defendant’s engagement in his land and with his family.

8. [190]

   In the opinion of the experts, and Ms Farroway, the intensive structures that are currently in place for the defendant under the interim supervision order have proved beneficial and are assisting him to abstain and remain offence free. Appropriate action can be taken if he is non-compliant with directions or if there is an alteration in any circumstances that put him at imminent risk of committing a serious offence. I accept that evidence.

9. [191]

   In my view, having regard of the conclusions reached, with respect to considerations arising under s 5B(d) and the further considerations undertaken under this heading, the Court should exercise its discretion pursuant to s 9(1) of the Act to make an extended supervision order.

Principles

1. [192]

   The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). The purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

2. [193]

   Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).

3. [194]

   The Court of Appeal further held at [53]-[54]:

4. [195]

   In State of NSW v Keith Farringdon [2018] NSWSC 874 (“Farringdon”), the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.

5. [196]

   In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant re-offending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion”.

6. [197]

   His Honour imposed the disputed conditions for the reasons outlined at [47]=[58]. Button J held (at [59]):

7. [198]

   With respect, I accept Button J’s statement of principles in Farringdon.

Management Plan

1. [199]

   The general management plan proposed by the State incorporated the following features, which were contentious (although the particular areas of dispute will be dealt with below):

   1. (1)

      Assess Lismore, and the defendant’s relationship with V5, to be too high risk at the present time.

   2. (2)

      To maintain restrictions preventing the defendant residing in Lismore and having contact with V5 in the short to medium term. This would be subject to review on a quarterly basis and take into account progress made by the defendant in therapy and also, possibly, progress made by V5 in addressing her alcohol abuse issues.

   3. (3)

      Allowing the defendant to travel to Lismore for family or cultural events, subject to reasonable risk management of the same being possible (with the ESO Team recognising the importance of cultural engagement for Aboriginal persons).

2. [200]

   Ms Farroway, in her oral evidence, explained that the ESO Team’s goal is to transition the defendant to the location he wishes to reside long term prior to the expiration of any extended supervision order. By that means, the defendant can develop various supports and structure in the community of his choosing before the expiration of the extended supervision order.

Expert Evidence

1. [201]

   In Dr Seidler’s opinion, the strategy outlined in Ms Farroway’s affidavit was an appropriate one in the defendant’s case. As to the proposed conditions, Dr Seidler was generally supportive of the conditions sought by the State, although she expressed concern with the condition 49 (discussed further below). Dr Seidler also expressed concerns about the operation condition 28.

2. [202]

   Dr Samuels, in his report, was also generally supportive of the conditions sought by the State with the exception of conditions 47 and 48.

3. [203]

   Dr Seidler acknowledged the restrictions imposed pursuant to an extended supervision order, including preventing him living in Lismore in the short term and having contact with V5, would be against the Defendant’s wishes and potentially distressing to him. However, Dr Seidler also gave evidence that a patient’s wishes are “generally not the best indicators of their needs”.

Particular Conditions

1. [204]

   Having regard to the evidence of Ms Farroway and the expert evidence, I consider the condition sought by the State should be granted, save for conditions 28(b). Condition 49 shall be in the amended form proposed by the State.

2. [205]

   The defendant contended that condition 26 should be made the subject to the following exception:

3. [206]

   Reliance was placed upon the evidence of Dr Samuels who, it was submitted, supported the defendant fostering a relationship with V5 in the interest of him rehabilitating.

4. [207]

   In my view, the condition should be imposed without the limitation sought by the defendant.

5. [208]

   Dr Seidler doubted the capacity of the defendant and V5, at the present time, to cohabitate safely without exposing the defendant to significant risk of reoffending and V5 to future harm. Neither the defendant nor V5 have the skills to successfully manage the risks arising in that relationship, which are “significant”, nor the capacity to abide by strict conditions imposed to permit safe interaction.

6. [209]

   Dr Seidler elaborated further, giving evidence that:

7. [210]

   Dr Seidler set out a number of matters she would want to see before contact took place between the defendant and V5, namely:

8. [211]

   In Dr Seidler’s view, whilst accepting that the possibility of future contact between the defendant and V5 would be the “wrong approach” it is not necessarily the wrong approach to prohibit such contact at the present time. Her opinion was, in my view, persuasive and readily extrapolated to the supervised visit proposed by the defendant.

9. [212]

   I do not accept the submission advanced by the defendant, as to the evidence of Dr Samuels, if that submission was to the effect that Dr Samuels supported current contact or supervised visits between the defendant and V5. I consider that Dr Samuels supported a restriction in contact of the kind proposed by the State at the present time. His evidence was to the effect that there was reason to restrict contact, at the present time, but as the defendant obtains stability that restriction should not continue.

10. [213]

    In examination-in-chief, Dr Samuels confirmed that he had considered the strategy outlined in Ms Farroway’s affidavit (which included the proposal to prohibit contact with V5 in the short to medium term). Dr Samuels confirmed his view that it was reasonable. Specifically, the evidence he gave on this was as follows:

11. [214]

    In cross-examination, the evidence given by Dr Samuels on this issue was consistent with the above conclusion. That evidence was as follows:

12. [215]

    I accept the submission of the State as follows:

13. [216]

    I do not consider that it is the position of the State that future contact with V5 has been ruled out. I accept, as in Farringdon, the ESO Team will approach that issue in a common sense, practical and reasonable way.

14. [217]

    Further, I accept the submission of the State that it would be inappropriate at this time to permit contact between the defendant and V5, as a victim of domestic violence.

15. [218]

    I also accept the concession by counsel for the State that the receipt by the defendant of a text or similar message as an involuntary act would not constitute a breach of the orders.

16. [219]

    The defendant opposed the imposition of condition 28(b).

17. [220]

    It is true that Dr Samuels took no issue with the condition when he was asked to comment on the reasonableness of such a condition. However, Dr Seidler, in contrast, was of the view there was no evidence to conclude that the disclosure of the defendant’s criminal history to female parties would reduce risk.

18. [221]

    There is no aspect of the defendant’s criminal history, particularly as to V5, which would suggest a contrary view should be taken to that expressed by Dr Seidler.

19. [222]

    I reject condition 28(b).

20. [223]

    The State suggested in its final submission an alternative to proposed condition 49. This was based on the evidence of Ms Farroway.

21. [224]

    That alternative order was as follows:

22. [225]

    The defendant proposed, in the alternative, the following condition:

23. [226]

    I consider the State’s alternative condition to be practical, workable and consistent with Ms Farroway’s and Dr Seidler’s evidence as reflected below.

24. [227]

    Ms Farroway gave evidence as follows:

25. [228]

    Dr Seidler’s evidence, with respect to the same, is extracted below:

DURATION

1. [229]

   The State proposed the duration of the order should be 3 years. The defendant contended that any order should not exceed a period of 2 years.

2. [230]

   I accept the defendant’s submission, although I shall fix the duration of the order made at 2 years.

3. [231]

   Dr Seidler opined that a period of “two to three years is considered suitable and will give [the defendant] ample time to demonstrate his capacity to maintain sobriety, engage appropriately in the community and address his criminogenic needs through therapeutic efforts”.

4. [232]

   The State did not seek to impugn Dr Seidler’s evidence in this regard.

5. [233]

   Dr Samuels did propose 5 years but that period does not conform with the order proposed by either party.

6. [234]

   In my view, the operation of the order for 2 years is consistent with the evidence that the defendant is taking steps towards rehabilitation (albeit affected by some real difficulties at this stage) and has remained free of criminal involvement over some time under present supervision arrangements, thereby suggesting prospects for improvement in his conduct in the medium term.

ORDER

1. [235]

   The Court confirms the orders entered on 14 December 2018.