State of New South Wales v Partington (Final)

By further amended summons filed in Court on 1 November 2022, the State of New South Wales (the plaintiff), relevantly seeks an extended supervision order (ESO) in respect of Shane Partington (the defendant) for a period of five years on conditions set out in the Schedule to the further amended summons. In the course of the hearing, the plaintiff altered its position with respect to some of the conditions which are reflected in a second further amended summons which I granted leave to file after the conclusion of the hearing. The plaintiff filed the second further amended summons electronically on 1 November 2022.

All references to legislation in these reasons are, unless otherwise stated, references to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

The defendant accepted that the statutory conditions for making an ESO (set out in s 5B) had been met and that the evidence established to a high degree of probability that there is an unacceptable risk that the defendant will commit a serious offence if not subject to an ESO. I have independently satisfied myself that this is the case.

It was contended on behalf of the defendant that the ESO should be of no more than three years’ duration. He also opposes some of the conditions sought by the plaintiff.

The plaintiff commenced these proceedings by summons filed on 30 April 2019. At that time, the defendant was serving a sentence of imprisonment, which was due to expire on 15 June 2019, for the offence of causing grievous bodily harm with intent (see table below). This offence falls within the definition of serious violence offence in s 5A(1) of the Act.

Following a preliminary hearing on 6 June 2019, Walton J made orders on 18 June 2019 which included an interim detention order (IDO) for 28 days and orders for the appointment of experts pursuant to s 15(4): State of New South Wales v Partington (Preliminary) [2019] NSWSC 732. As the defendant was in custody, the IDO was suspended pursuant to s 18C.

The plaintiff filed an amended summons dated 16 August 2021, deleting prayers 4 and 5, which sought a continuing detention order (CDO) followed by an ESO. This document has been further amended as referred to above.

The defendant was the only natural child of his parents. He has older half-siblings from his mother’s previous relationship. His natural father conducted an extra-marital affair with his mother, which his father broke off when he learned of the pregnancy. While she was pregnant, the defendant’s mother was injured in a serious motor vehicle collision which affected her brain and her mobility. The defendant was born in January 1970. His mother raised him as a single mother until he was six years’ old. During this period, various men visited the house as a result of which the defendant was exposed to sexual activity between his mother and these men.

When the defendant was aged between four and six years, he was repeatedly sexually abused by a teenage male who lived across the road.

When the defendant was six years’ old, his mother formed a relationship with his stepfather, who was very violent, abusive and alcoholic. The defendant’s stepfather would regularly assault the defendant and his mother, who was also alcoholic.

The defendant’s mother died when he was 11 years’ old. Initially, he remained with his stepfather as he had nowhere else to go. However, an older half-sister moved into the home to look after him and caused the stepfather to leave, much to the defendant’s relief. The defendant’s half-siblings pretended that their father was also the defendant’s father, which enabled the defendant to form a relationship with his putative father. When the man died, the defendant felt enormous loss and grief. When he subsequently learned that the man was not his real father, he was devastated by the disclosure.

At about this time, when the defendant was in Year 8, he was physically and sexually abused by a sports teacher. The defendant was bullied mercilessly when he was at school: a student urinated in his school bag and, at times, he was hit on the head. When the defendant was 17, he was anally raped by one of the peers who had bullied him.

The defendant attained his Year 10 certificate before leaving school to commence employment.

The defendant left home at the age of 21 and formed a relationship, as a result of which a child was born. The relationship lasted for two years. When he was 23, the defendant formed another relationship in the course of which four children were born. The relationship ended when the defendant assaulted his partner and threatened to kill her. When he was 33 years’ old, he formed another relationship, during the course of which he assaulted his partner. On 27 August 2004, when he was 34 years’ old, he became involved in an altercation which resulted in the death of a friend. The defendant was arrested, taken into custody and charged with murder. At the first trial, he was acquitted of murder but convicted of manslaughter. His conviction was overturned by the Court of Criminal Appeal. At the retrial he was acquitted of manslaughter and released on 16 December 2009, after more than five years in gaol.

The defendant was unable to care for his children, who are now adult, because of his lengthy periods in custody. He has engaged in self-harm and has tried, on more than one occasion, to end his life. He has abused alcohol and illicit substances, although he appreciates that he is violent when disinhibited.

The defendant’s offending conduct began in 1986, when he was 16 years’ old and has continued to the present.

The salient aspects of the defendant’s criminal and custodial history are summarised in the table set out below (which does not include sentences of imprisonment which were suspended or penalties other than of full-time custody).

As appears from the first entry on the table and as referred to above, the defendant spent over five years in gaol for a crime of which he was subsequently acquitted. During his period of imprisonment, he was traumatised several times, including when he was stabbed with a needle. Because he was in prison for such a long time, he lost contact with his children. Despite this extended period of trauma, he did not re-offend until 7 February 2013, which was over three years after his release on 16 December 2009. He was arrested and charged on 20 February 2013 and taken back into custody, where he remained until his release on 15 December 2016. As set out above, there was further offending in 2017 and 2019, as well as in May 2022.

Because of the concession made on behalf of the defendant, it is not necessary to narrate the circumstances of all of these offences, the detail of which appears from the remarks on sentence (in the case of the offences for which the defendant has been sentenced) and the facts sheets (in respect of the matters which have been recently finalised).

The circumstances of the offences committed on 7 February 2013 (to which the defendant pleaded guilty) appear from the remarks on sentence of Sides QC DCJ:

The circumstances of these offences serve to demonstrate the risk posed by the defendant, who has resorted to violence spontaneously without discernible provocation.

In 2021, while the defendant was in custody, he engaged with the Violent Offender Treatment Program (VOTP). This consisted of three or four 2-hour sessions. In a Department of Communities and Justice report dated 4 January 2022, his participation and behaviour was assessed as follows:

During the first few months of 2022, when the defendant was on parole, he engaged with VOTP maintenance sessions, became involved with the Centre for Addiction Medicine with a view to obtaining treatment for his alcohol misuse and negative relationships, joined two church groups and an associated men’s group and worked in construction at Brookvale Oval. However, on 8 May 2022, the defendant again committed a violent offence which was resolved on 31 October 2022.

As referred to above, the defendant’s parole (in respect of the sentence imposed for reckless wounding) was revoked on 22 June 2022, to date from 6 June 2022 due to the subsequent offending. But for the revocation of parole, he would otherwise be entitled to be released on 5 November 2022. I accept that it is preferable that, when he is released, he be released subject to an ESO rather than merely to parole since the supports and resources dedicated to those who are subject to an ESO are greater than for those on parole.

It is sufficient, for present purposes, to note that the defendant would appear to be unable to control his propensity for violence, which has led him to spend a significant part of his life in prison. There have, however, been significant gaps in his offending, which serve to indicate that there are real prospects of rehabilitation with appropriate supports.

As referred to above, Walton J appointed experts to report to the Court following a consultation and assessment with the defendant. The Court has had the benefit of two reports of Dr Katie Seidler, clinical and forensic psychologist, dated 26 July 2021 and 29 August 2022 respectively and two reports of Dr Yolisha Singh dated 30 July 2021 and 29 August 2022 respectively.

Both experts gave concurrent evidence in the hearing, both as to the duration of the ESO and as to the proposed conditions. Their evidence, to the extent relevant to these two issues, is referred to below.

The Act’s primary object is “to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders to ensure the safety and protection of the community”: s 3(1). A further object is to encourage high risk offenders to undertake rehabilitation: s 3(2). The legislative purpose of the Act is protective and not punitive. The protective purpose is fundamental. The protective purpose and the rehabilitative purpose are closely related. If the defendant is rehabilitated, then he will not re-offend. If he does not re-offend, the public will be protected from him.

Section 9(3) lists the matters which the Court must take into account when determining whether or not to make an ESO. I have taken into account the experts’ reports (referred to above) and the level of the defendant’s participation in the examinations which were the subject of those reports; the results of other risk assessments and the defendant’s willingness to participate in such assessments as well as his level of participation; the results of such assessments; reports by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community; the treatment and rehabilitation programs which the defendant has engaged with and the level of his participation; options that might reduce the likelihood of the defendant’s re-offending; the likelihood that the defendant will comply with the obligations of an ESO; the level of his compliance when on release to parole; the defendant’s criminal history and pattern of offending; the views of the sentencing courts when imposing sentences on the defendant and the documentary material tendered by the plaintiff, to which no objection was taken.

As referred to above, 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. The reasons for this satisfaction appear from the circumstances of the defendant’s childhood and upbringing which have made him vulnerable and rendered him unable to control his emotions or express them in a proper way. Thus, absent supervision, he is apt to resort to violence, particularly when his emotions are engaged. A slight trigger is all that would appear to be required before he attacks someone. The community requires protection from the defendant. The defendant needs supervision in order to avoid engaging in serious offending. If no order were to be made, it would, in my view, be almost inevitable that he would re-offend in a violent way, thereby inflicting serious injury or death on another person.

There are two remaining issues: the duration of an ESO and the conditions to which the defendant, under the ESO, ought be subject.

The defendant, for whom Mr Wilcox appeared, submitted that three years was a sufficient period for the ESO. He helpfully extracted the relevant evidence of the experts which is reproduced below.

In her first report, Dr Singh said:

In her second report, Dr Singh said:

In Dr Seidler’s first report, she said that an ESO was not necessary as the defendant then had 15 months left on his parole order. She said:

In her second report, Dr Seidler considered an additional period of supervision under an ESO was appropriate and said, as follows:

While Mr Wilcox accepted that there was an “undoubted need for a reasonably long period of supervision in the community before the defendant would be considered to no longer present an unacceptable risk of committing a serious offence”, he argued that it was significant that the defendant has never had the benefit of intensive supervision under the Act, either under an interim supervision order (ISO) or ESO, as his supervision has been confined to parole supervision. He submitted that the defendant appears to be motivated to make the most of the opportunities for rehabilitation which an ESO would present.

Mr Wilcox submitted:

While I accept that the supervision which can be provided under the Act to an offender such as the defendant is capable of preventing future offending (which is its purpose) by changing an offender’s attitude to triggers and encouraging responses which exclude violence, this process takes time. Conditions which may be required at the outset may be relaxed if the defendant proves that he can control his responses. The success of an ESO cannot be measured except in hindsight. At the time of the hearing, the defendant has exhibited a terrible tendency to react violently, not only to the detriment of members of the public but also to his own detriment. Violent crimes tend to lead to imprisonment, which, in the context of the defendant’s circumstances, has shown itself to be almost wholly unsuccessful in rehabilitating him.

An ESO of three years would tend to give the defendant hope (which may prove to be forlorn) of unrestricted liberty at the end of the three years. Were I to grant an ESO for three years, the defendant’s rehabilitation could be substantially disrupted by the almost inevitable prospect that the plaintiff will apply for another ESO. Any such application would require the defendant to be subjected to another round of assessments by experts, which would require him to revisit and re-narrate the various traumas which he has suffered in the course of his life, particularly those inflicted when he was a child and adolescent and had no, or little, power against which to protect himself. If a further ESO were granted after three years, the defendant may despair which, in itself, could lead to further offending. Both Dr Singh and Dr Seidler agreed that the court processes, which could be “quite intrusive”, might destabilise the defendant’s rehabilitation.

Further, I accept Dr Singh’s opinion (with which Dr Seidler agreed) that it will take time for the defendant to achieve “sustained learning” from the therapy. She observed that his desire to be viewed as a “positive person ... may interfere with the nature of that therapeutic alliance.” She also opined that:

Dr Singh also noted that it “take[s] time to establish … a sense of community, a sense of purpose, a sense of belonging, a reconnection with the church, with his family, all of those things which will bolster and scaffold his potential for recovery; and the opportunities to live an offence-free and meaningful life.”

I consider that the risk that the defendant will commit a serious violence offence will remain unacceptable, absent supervision, for at least five years. An ESO for a lesser period would be not only insufficient to protect the public, but it would also not be in the interests of the defendant.

Section 11 of the Act confers a significant power to order conditions on an ESO and provides as follows:

I have considered and been assisted by the affidavit of Kelli Grabham affirmed on 24 October 2022. Ms Grabham is currently employed by Corrective Services New South Wales as a High Risk Offender Applications and Operational Governance Officer with the ESO Team and On-Call Manager. She was not cross-examined. In her affidavit she explained the rationale of the conditions proposed by the plaintiff and the role played by the Departmental Supervising Officer (DSO) in enforcing the ESO.

There are, in effect, two categories of conditions: those that ameliorate the risk posed; and those that enable the conditions to be enforced. Section 12 provides that breach of a condition is an offence. It is therefore particularly important to ensure that conditions are worded clearly.

Many of the conditions proposed by the plaintiff were not opposed by the defendant. I am satisfied that the conditions in this category ought be imposed and are “appropriate” within the meaning of s 9(3). For this reason I propose only to address those conditions which remained in issue.

The respective versions of condition 5 are as follows:

Both experts considered the provision of a schedule to be useful to promote accountability, responsibility, predictability and to assist with monitoring. I consider that condition 5, as proposed by the plaintiff, is appropriate and desirable. The defendant’s proposal is insufficiently clear to be readily enforceable.

The respective versions of condition 6 are as follows:

The difficulty with the defendant’s proposal is that it would permit him to change the schedule at will as long as he notifies the Departmental Supervising Officer (DSO) before departing from the schedule. I do not consider this to be sufficient to ameliorate the risk. Further, it would tend to thwart monitoring. I consider the plaintiff’s proposal to be appropriate.

The plaintiff proposes the following condition 7:

I consider this proposal to be appropriate since it incorporates any changes which the DSO has approved. The exception for an emergency is appropriate. However, I consider that it should be clarified so as to read as follows:

The respective versions of condition 10 are as follows:

Mr Wilcox argued that it was necessary and appropriate that the defendant have the freedom to attend a therapy session or Alcoholics Anonymous meeting (AA meeting) without needing to obtain prior approval from his DSO. Drs Singh and Seidler considered that the words “alcohol and other drug-related therapy” were redundant since it was nigh impossible that such therapy would be available after 9pm and before 6am in any event. They both accepted the possibility that an AA meeting could be convened after 9pm and before 6am. Mr Fraser contended that the proposed carve-out for AA meetings was too broad (since an AA meeting could potentially occur anywhere and at any time) and would make the condition difficult to enforce. I accept Mr Fraser’s submission. If the defendant has an urgent need to attend an informal AA meeting at a particular time (between 9pm and 6am) and location, then he can contact his DSO to seek approval.

The plaintiff proposes the following condition 19:

Ms Grabham explained that this condition would be used if the defendant presented as unable to manage his own finances or engages in unexplained spending. She said:

Mr Wilcox opposed such a condition. He submitted that it constituted an unwarranted intrusion into the defendant’s liberty and autonomy and that it was not germane to any risk. While the experts accepted that such monitoring may give the DSO an idea of whether the defendant was, for example, purchasing alcohol, they accepted that there was nothing in the defendant’s past offending to suggest that impulsive spending or difficulties managing money were related to the offending. Both experts considered the condition to be of questionable utility in the present case. Further, they pointed to other conditions, such as the alcohol abstention condition, which were directed towards the amelioration of the risk of re-offending. The experts also expressed concern that the condition would tend to undermine the defendant’s autonomy for no good reason.

The defendant’s offending appears to occur impulsively in situations of high emotional stress. His inability to control himself in these circumstances, leads to violent offending in the heat of the moment, often when he is inebriated. I do not consider that the proposed condition ameliorates the risk posed by the defendant or that it would assist in relevant monitoring. Accordingly, I am not persuaded that such a condition ought be imposed on the ESO.

The plaintiff proposes the following condition 26:

The defendant’s objection is to paragraph b, which he contends ought be deleted.

Ms Grabham explained the purpose of paragraph b as follows:

Both experts considered (and I accept) that a person with whom the defendant forms an intimate relationship has a right to know about his criminal history since it was a highly relevant matter as his past offending includes acts of domestic violence against former intimate partners. However, each expert was concerned to ensure that the disclosure was made in an appropriate way to ensure that it did not heighten the risk of the defendant re-offending. They agreed that if the disclosure was made without appropriate “scaffolding” (to used Dr Singh’s word), there was a risk that the relationship would not proceed further and that the defendant would be left feeling utterly bereft and extremely isolated. These feelings might destabilise any rehabilitation. They said further that the intimate partner would also need some support at the time of the disclosure so that she did not experience loss of self-worth at having made an inappropriate choice. They considered that these competing concerns could be resolved if the disclosure took place following consultation with one of the defendant’s therapists.

The plaintiff proposed that the following words be added after “if required by his DSO” in the opening words to b:

I consider that this amendment is sufficient to address the experts’ concerns and note their agreement to this course.

The plaintiff proposed the following conditions:

Ms Grabham explained that these conditions were important because they would enable the DSO to monitor the defendant’s communications with partners, potential partners, drug and alcohol suppliers and others. She said that they would also assist in “general compliance and ensuring that the defendant is being truthful in the information which he provides to the DSO.”

Mr Wilcox submitted that none of these conditions was necessary as there was no indication that the defendant’s offending conduct was associated with the internet or that he became disinhibited as a consequence of online activity. I accept this submission. There is no suggestion that the defendant has engaged in grooming online, internet gambling or has used pornography. As the experts have noted, the defendant’s offending has occurred during personal altercations and confrontations at moments of high emotional stress. The experts considered these conditions to be unnecessary and that they were unlikely to do good and might even do harm. I am not persuaded that these conditions are either necessary or appropriate and decline to impose them on the ESO.

The plaintiff proposed the following condition 42:

Mr Wilcox submitted that the following words ought be added to the condition:

Mr Wilcox explained that the reason for the qualification was that once information could be shared with treatment providers and assessors employed by Corrective Services, Community Corrections or Justice Health, the defendant’s DSO would have access to all of that information. He explained that the public treatment providers’ information would be stored on a portal to which the DSO would have access. He argued that this would tend to disrupt the therapeutic relationship between the defendant and his private treatment providers.

Both experts considered the plaintiff’s proposal to be appropriate. They emphasised the benefits of a holistic approach and considered that it was very important that all of the plaintiff’s treatment providers, whether public or private, had access to all relevant information if one of them sought it for the prescribed purpose (for the defendant’s rehabilitation and/or risk mitigation in relation to a serious offence). I accept their evidence and the rationale behind the condition as proposed by the plaintiff.

The plaintiff also proposed condition 43 as follows:

The experts’ concern about the proposed condition was that it might tend to disrupt the therapeutic relationship between the defendant and his treating practitioners to require him to agree to the latter disclosing reports on his progress with his DSO. It was suggested to them that this potential harm could be ameliorated if the words “after consultation with the defendant” were added before the word “sharing”. Both agreed that this amendment was sufficient to overcome their initial reservations. The plaintiff continued to press condition 43 in its original form. I am persuaded that the amendment approved by the experts ought be made.

It is preferable that the conditions of an ESO be numbered sequentially rather than that they reflect the paragraphs in the schedule to the second further amended summons. The changes to the numbering are accounted for by my refusal to make conditions 19, 29, 30, 31 and 32 and the circumstance that proposed condition 40A is now numbered 36. Apart from the conditions referred to in the table below, the conditions referred to in these reasons have the same numbers as in the schedule to these reasons.

In addition to an ESO for a period of five years on the conditions proposed, the plaintiff seeks the following ancillary orders:

I am satisfied that each of these orders ought be made. Proposed order (1) above would assist the defendant’s rehabilitation by providing additional information to such agencies and treating clinicians and proposed order (2) would protect the defendant’s rehabilitation by ensuring that only those with an interest in knowing about his offending and the risk he poses will have access to the Court’s file, including the evidence adduced in these proceedings.

For the reasons given above I make the following orders: