State of New South Wales v O’Hara (Preliminary)

1. [1]

   The State of New South Wales (the plaintiff) commenced proceedings by summons filed on 25 September 2023 against Django Womack O’Hara (the defendant) seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The defendant is presently subject to an extended supervision order (ESO) imposed under the Act by Lonergan J on 25 February 2022, which will expire on 23 December 2023. He is also subject to conditions of parole and community correction orders (CCOs) until 16 April 2024 and 19 June 2025, respectively.

2. [2]

   The final relief sought by the plaintiff is an ESO for a period of 2 years. By way of interim relief, the summons seeks orders that the defendant be subject an interim supervision order (ISO) for a period of 28 days commencing on the expiry date of the ESO currently in force. The summons additionally seeks orders appointing two qualified psychiatrists or psychologists (or any combination thereof) to conduct separate examinations of the defendant and furnish reports to the Court, that the defendant be directed to attend those examinations, and finally, that access only be granted to the Court's file to a non-party with leave of a judge of this Court and with prior notice to the parties and an opportunity for them to be heard.

3. [3]

   The defendant opposes the prayers sought, except for the prayer limiting access to the file.

Background

1. [4]

   The defendant is a 48 year old Indigenous man. A succinct overview of his background was provided by forensic psychologist Dr Amanda White, in a report that she prepared for the final hearing in 2022 of the application for the ESO to which the defendant is presently subject. She stated:

2. [5]

   Dr White noted that the defendant gave a history of using cannabis since his early teens, heroin from his 20s and commencing methadone maintenance therapy in 2016, which I note would have been when he would have been aged about 40.

The defendant’s criminal record

1. [6]

   The defendant has an extensive criminal history, commencing with over 50 entries in the Children’s Court on 16 occasions from the age of 13, including entries for offences of violence.

2. [7]

   The defendant’s first offence as an adult was murder, which he committed on 5 March 1995 when he was aged 19. He pleaded guilty and was sentenced on 11 December 1996, to imprisonment for 12 years and 10 months, to commence on 31 May 1997 and expire on 30 March 2010. He received a non-parole period (minimum term) of 8 years and 10 months, that expired on 30 March 2006.

3. [8]

   The sentencing judge (Sully J) remarked on sentence that the defendant and four other young men had broken into a house one evening, believing there was a safe inside. They activated a security alarm and decamped. The owner immediately employed a security guard. The following afternoon, the defendant returned to the house with three others to rob the safe. He was armed with a loaded revolver. The security guard intervened and was fatally wounded when shot by the defendant.

4. [9]

   The sentencing judge took into account evidence of the defendant’s sister as to his deprived and dysfunctional childhood. His Honour found that the defendant did not have an intent to kill or cause serious bodily harm, but rather acted with reckless indifference when he fired the revolver and was genuinely remorseful. His Honour found his prospects of rehabilitation to be “very difficult to assess”. The defendant was not released on parole and served all of the sentence in custody.

5. [10]

   While awaiting sentence on the murder charge, the defendant was charged with assaulting a prison officer, for which he received 9 months’ imprisonment, and two offences of assault occasioning actual bodily harm, for which he received a sentence of 6 months’ imprisonment.

6. [11]

   On 18 October 2012, the defendant was sentenced by Charteris DCJ for multiple offences, receiving separate sentences, with an overall sentence of 7 years commencing on 1 January 2011 and expiring on 31 December 2017, with a non-parole period of 3 years 6 months, to expire on 30 June 2014. The offences and separate sentences were as follows.

   1. (1)

      for a count of reckless wounding, he received a sentence of imprisonment for 3 years, commencing on 1 January 2011 and expiring on 31 December 2013;

   2. (2)

      for a break, enter and steal he was sentenced to imprisonment for 3 years, commencing on 1 April 2011 and expiring on 31 March 2014. An aggravated break and enter (in company), larceny, and enter building with intent to commit an indictable offence, were taken into account on a Form 1;

   3. (3)

      for an aggravated break and enter and committing a serious indictable offence, the circumstance of aggravation being that he was in company, he received a sentence of 4 years, commencing on 1 January 2014 and concluding on 31 December 2017, with a non-parole period of 6 months, to expire on 30 June 2014.

7. [12]

   In his remarks on sentence, the sentencing judge noted that the reckless wounding offence occurred on 8 November 2011. The defendant attended a bar in the early hours of that date and played a poker machine. An argument ensued between him and another poker machine player, during which the defendant stabbed the other player to his upper arm and the left side of his torso, which penetrated the chest wall between the fourth and fifth ribs. The defendant then left the premises. The sentencing judge was not satisfied to the requisite standard of beyond reasonable doubt that the defendant used a knife to stab the victim, although it was “certainly an item or an object that was capable of penetration”. A special circumstance found by his Honour was that the defendant:

8. [13]

   On 19 July 2013, the defendant was sentenced for the offence of causing grievous bodily harm with intent. He received a sentence of 9 years’ imprisonment, to commence on 26 November 2012 and expire on 25 November 2021, with a non-parole period of 4 years and 6 months, to expire on 25 November 2021.

9. [14]

   In his remarks on sentence, the sentencing judge noted that the Crown case was that on 1 October 2009, that, is, six months before his murder sentence expired, the defendant struck the victim on the head from behind with a sandwich maker. The victim fell to the ground and did not move. The defendant struck a second time and would have struck a third time but an inmate in the prison intervened. He was charged with this offence eight months after his release from prison at the expiration of his murder sentence. He was granted bail in January 2011, and within two weeks he had committed three further offences.

10. [15]

    The sentencing judge found that there had been a degree of “extreme provocation” and that the offence was in the mid-range of objective seriousness. His Honour also found that the defendant had “an anger management problem and he is going to need close supervision”.

11. [16]

    On 1 November 2018, for an offence of recklessly inflicting grievous bodily harm, the defendant received a sentence of 3 years, commencing on 25 May 2017 and concluding on 24 May 2020, with a non-parole period of 1 year, to expire on 24 May 2018. The agreed facts on sentence were to the effect that while a prisoner in Wellington Correctional Centre, the defendant approached a fellow inmate from behind and punched him to the side of his face, causing a displaced fracture of a facial bone.

12. [17]

    On 9 October 2019, the defendant was sentenced for the offence of common assault. He received a sentence of 10 months’ imprisonment, to commence on 15 July 2018 and expire on 14 May 2019.

13. [18]

    On 20 June 2023, the defendant was sentenced for the offences of destroying or damaging property and custody of a knife in a public place. For the first offence, he received a Community Correction Order (CCO) for a period of 12 months, commencing on 20 June 2023 and expiring on 19 June 2024. For the second offence, he received a CCO for a period of 2 years, with the same commencement date, to expire on 19 June 2025.

14. [19]

    On 3 July 2013, following successful severity appeals in the District Court, he was resentenced for two offences that were committed on the same date as the two offences for which he was sentenced on 20 June 2023. These were assault occasioning actual bodily harm and failing to comply with an ESO. For the first offence, he received a sentence of 12 months’ imprisonment, to commence on 17 April 2023 and expire on 16 April 2024 with a non-parole period of 4 months, to expire on 16 August 2023. For the second offence, he received a sentence of 4 months imprisonment, commencing on 17 April 2023 and expiring on 16 August 2023.

15. [20]

    The defendant has over 150 disciplinary matters on his prison record, the most recent entries being in May 2023 and in August 2020, both being for “intimidation”.

16. [21]

    According to the risk management report tendered by the plaintiff, referred to in greater detail below, the defendant was discharged from the Violent Offender Therapeutic Program (VOTP) in 2003 and 2005 for disruptive behaviour and later declined to attempt it again in 2016. He completed the EQUIPS Aggression program in 2019 and the EQUIPS Addiction program in 2020.

The defendant’s progress under his current ESO

1. [22]

   The defendant was released from custody pursuant to an ISO on 25 November 2021. His current ESO commenced on 25 February 2022. On 17 March 2022, he received a verbal warning for downloading gambling applications on his smartphone without prior approval from his DSO. I note that the applications were subsequently approved for him to download. On 24 August 2022, he tested positive in a drug swipe for cannabis. He reported having smoked a “joint” with another resident at his accommodation three days prior. The defendant proceeded to Stage 2 of the ESO in August 2022 and to Stage 3 in about February 2023, which did not require him to submit schedules.

2. [23]

   On Monday 17 April 2023, he was charged with an assault that he committed that day. The Police Facts were to the effect that at about 11.40am, he attempted to board a public bus at a bus stop. The bus driver informed the defendant that he was not allowed to board without a working Opal card. An argument ensued and the defendant punched the driver to his nose with the back of his hand. The defendant exited the bus and walked away. Police arrived and viewed the driver with a laceration to the right side of his nose, still in his seat, attempting to stop a nosebleed. Police saw the defendant nearby and arrested him as he attempted to climb over a gate. He was searched, which revealed a 15cm knife in his right pocket, which was a breach of his ESO. When asked why he was carrying it, he replied: “I eat apples”.

3. [24]

   The defendant gave an account of the incident to a psychologist who prepared a risk assessment report (considered below), which was to the following effect. He was intending to catch the bus to get his dose of methadone. He was running late that morning, having slept in, and inadvertently left his Opal card at home. He had cut up an apple for a bird, put the knife in his pocket and forgot it was there. When the driver told him he could not come on board without a working Opal card, he tried to persuade him to let him on by telling him he needed his methadone shot, but the driver would not be persuaded. The report’s author continued:

4. [25]

   On 20 June 2023, the defendant received a sentence in the Local Court of 12 months’ imprisonment for the assault offence and 14 months’ imprisonment for the offence of failing to comply with the ESO. On a severity appeal to the District Court, the commencement date and non-parole period of the sentence for the assault occasioning actual bodily harm was varied, so that he was released to parole on 16 August 2023. The sentence for the breach of the ESO was varied to 4 months, to expire on the same date. Addressing the defendant, Haesler SC DCJ said, in his Honour’s remarks on sentence:

5. [26]

   The defendant was residing in the Wollongong area at the time of the assault and wishes to remain there in the approved accommodation that he acquired shortly before his arrest. He has regular phone contact with his mother, who resides in a regional part of the state, and his sister, who lives in Sydney.

6. [27]

   According to the risk management report, he has been attending individual risk management intervention sessions with a Corrective Services NSW (CSNSW) Senior Psychologist and has accepted referrals to support services and programs. He is compliant with daily opioid replacement dosing.

7. [28]

   I understand the defendant has commenced litigation against the State in respect of assaults that were perpetrated upon him whilst he was detained in State institutions as a child.

Relevant provisions of the Act

1. [29]

   Section 10A of the Act relevantly provides that the Court may make an ISO if, in proceedings for an ESO, it appears to the Court that the defendant’s current supervision will expire before the proceedings are determined (which the defendant accepts to be so), and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

2. [30]

   Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act.

3. [31]

   Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to make an ESO, pursuant to the relevant statutory test in s 5B of the Act. Section 5B provides four prerequisites for the making of an ESO. The prerequisites set out in s 5B(a), (b) and (c) concern the manner of the application and the defendant’s custodial status. The parties agreed that these threshold criteria are satisfied. I am independently satisfied that they have been met.

4. [32]

   The key provision for consideration is s 5B(d), namely, whether the Court:

5. [33]

   The term “serious offence” is defined in s 4 of the Act to include “a serious violence offence” which, in turn, is defined in s 5A to include the offence of causing grievous bodily harm with intent to cause grievous bodily harm.

6. [34]

   Pursuant to s 5D, the Court is not required to determine that the risk of an offender committing a serious offence is “more likely than not” in order to determine that there is an “unacceptable risk” of the person committing such an offence.

7. [35]

   The defendant submits that the Court would not be satisfied that the test in s 5B(d) of the Act is established, so that pursuant to s 7(5), the application should be dismissed. In that circumstance, the defendant would seek an order for costs.

8. [36]

   Pursuant to s 10A, if the test provided in s 7(4) of the Act is satisfied, that is, that if it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, and that the defendant’s current supervision will expire before the proceedings are determined, then the court may make an order for an ISO: s 10A(a) of the Act; that is, it is a discretionary power.

9. [37]

   Section 9(3) of the Act stipulates the matters that the Court must have regard to in determining whether to make an ESO. The effect of ss 10A and 7(4) is that on an application for an ISO, some of these matters are also relevant and, in the course of this judgment, I have taken them into account.

10. [38]

    Section 9(2) of the Act provides that, in determining whether to make an ESO, “the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

11. [39]

    In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], in relation to comparable provisions in an earlier version of the Act.

A forensic psychiatric report

1. [40]

   The plaintiff relies upon a forensic psychiatric report, dated 24 January 2022, by Dr Kerri Eagle that was prepared for the final hearing of the previous application for an ESO before Lonergan J.

2. [41]

   Dr Eagle reviewed the documentation pertaining to the defendant and interviewed the defendant in December 2021. Following an extensive review of the defendant’s background, earlier assessments of his mental health and her own assessment, she determined that the defendant “did not display any signs or symptoms of a major mental disorder such as a psychotic illness or major disturbance of mood”. She diagnosed him as having a “substance use disorder on opioid maintenance treatment (methadone)”. He also displayed pervasive behaviours and attitudes consistent with an anti-social personality disorder.

3. [42]

   Dr Eagle gauged the defendant’s level of risk of committing another serious violent offence by applying an assessment tool known as the Historical Clinical and Risk Management – 20 Version 3 (HCR-20 V3). She described his level of risk in these terms:

A forensic psychological report

1. [43]

   Dr White, in a report prepared in January 2022 for the final hearing that resulted in the current ESO, took a personal history which is extracted at [4] above.

2. [44]

   As to the defendant’s then-current level of risk, Dr White also applied the HCR-20 V3 and arrived at a similar finding to that of Dr Eagle. As to risk scenarios, she opined:

Risk Assessment Report

1. [45]

   A risk assessment report dated 7 July 2023 was prepared by Samuel Ardasinski, a senior psychologist with the Serious Offenders Assessment Unit of CSNSW. Mr Ardasinski’s report is quite positive about the defendant’s performance in the community. Despite the transgressions by the defendant while subject to his current ESO noted above, Mr Ardasinski stated:

2. [46]

   In relation to the 2023 charges, Mr Ardasinski said:

3. [47]

   Mr Ardasinski noted that the defendant will be subject to the two CCOs, the latest not expiring until 19 June 2025. Later in his report, Mr Ardasinski placed the incident in a broader context of the defendant’s continuing rehabilitation:

4. [48]

   As to risk scenarios for violent reoffending, Mr Ardasinski reiterated what he said in an earlier report that pre-dated the April 2023 incident and was somewhat prescient. He stated that the defendant’s most likely scenario for future violent offending would involve:

5. [49]

   Mr Ardasinski noted that the defendant perceived his missing that bus as a threat, since it had been a long time since he had missed a daily dose of methadone. The defendant retaliated at the perceived injustice of the bus driver not letting him on the bus and immediately regretted it. There was no ongoing attack. Once the defendant had thrown the one punch he did not use the knife that he had on his person.

6. [50]

   As to the defendant’s current level of risk of reoffending with a serious crime of violence, Mr Ardasinski noted that the defendant had been assessed in March 2022 and January 2023 by the application of the Level of Service Inventory – Revised (LSI-R) to have a medium risk for general and violent reoffending within 12 months of release. Mr Ardasinski assessed his static and dynamic risk factors with the Violence Risk Scale (VRS) in 2017 and reassessed the results in 2021. The two tests placed him:

7. [51]

   Mr Ardasinski concluded:

8. [52]

   And later:

9. [53]

   Mr Ardasinski noted that an ESO provides a higher intensity of supervision, monitoring and case management than a CCO and advised:

Risk management report

1. [54]

   A risk management report, dated 3 August 2023, was prepared by Jenny Orr, who is a Team Leader at Wollongong Community Corrections. At the date of the report, the defendant was still serving his sentence for the April 2023 offences. As to the defendant’s level of risk of reoffending, Ms Orr noted that the LSI-R was readministered to the defendant on 24 July 2023, which I note is shortly after the date of Mr Ardasinski’s report, but only in relation to general reoffending. The result was the same, that is, a medium risk level. She noted that a psychological assessment on 7 December 2022 concluded that he fell into the moderate risk category of violent offending, but does not elaborate on the basis of that assessment.

2. [55]

   Ms Orr noted the significant reduction in the defendant’s prison disciplinary matters. She was able to establish from perusing the records that the “intimidation” matter in May 2023, when he was returned to custody for the April 2023 offences, was minor in nature.

3. [56]

   Ms Orr reported on the defendant’s pro-active approach to treatment, since he has been back in the community:

4. [57]

   As to the degree of supervision in any further ESO, Ms Orr said the defendant would be subject to electronic monitoring and to schedules “on a short-term basis”, to support his transition to community-based activities. Subject to his progress, it is envisaged that he would return to Stage 3 of monitoring after a short period, to provide him encouragement to break from institutionalised routines.

5. [58]

   The defendant will continue to receive one-on-one risk management sessions with a CSNSW senior psychologist and transition to community based psychological counselling via a referral from a General Practitioner. Ms Orr added:

Determination

1. [59]

   I am satisfied that the statutory prerequisites for an application for an ESO are met. The defendant submits that in view of his considerable progress over the course of the current ESO, the Court would not be satisfied that the matters in the supporting documentation would, if proved, justify the making of an ESO.

2. [60]

   Although I accept that the defendant has made considerable progress whilst subject to his current ESO, there has been a setback. In view of his criminal history, it is particularly concerning that he had a 15cm knife on his person at the time of the April 2023 offences. I note the similarities between the facts of that offending and the risk scenarios that forensic experts had advanced before it occurred. The provocation involved in that incident, although very minor, was sufficient to prompt the defendant to lose control to the point of hitting the driver to the head, in front of his passengers. It prompts one to consider whether, had he been involved in an incident with a greater degree of provocation and without witnesses, the knife might have been used. For that reason, although this is the only incident of consequence since his release from custody, the presence of the knife in the context of his history of violent offending means that it had the potential to be a devastating incident.

3. [61]

   Accordingly, in spite of the defendant’s progress, in particular, his reduction in the level of his risk of committing another serious violent offence, I am of the opinion that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

4. [62]

   As noted, pursuant to s 10A of the Act, this determination does not mean that an ISO is necessary; that is a discretionary matter. However, having regard to the all the material, I am of the view that there should be an ISO. In so determining, I do not lose sight of the solid progress the defendant is continuing to make in the community, in spite of the inevitable institutionalisation that he has experienced, consequent to the majority of his adult life being spent in prison.

Conditions of an ISO

1. [63]

   The conditions to the ISO that are sought by the plaintiff are identical to those that apply to the current ESO. The defendant referred to a decision of this Court where conditions of parole were found to provide sufficient protection to the community in respect of a defendant who was subject to parole: State of New South Wales v CD (Preliminary) [2021] NSWSC 1396. However, each case is determined on its own facts. In the circumstances of this particular case, it is appropriate that the full range of supervisory measures that are available through an ISO, which exceeds those available through CCO, are available.

Orders

1. [64]

   I make the following orders: