State of New South Wales v Nikua (Final)

1. [1]

   HIS HONOUR: This is an application by the State of New South Wales (“the plaintiff”) for an extended supervision order (“ESO”) made pursuant to s 5H of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The plaintiff applies for an order for a period of three years in relation to Mr Solomone Nikua (“the defendant”).

2. [2]

   The issues for my determination are whether an order should be made, and if so, the term of that order and the conditions to be imposed.

3. [3]

   For the reasons that follow, I am of the view an order should be made. However, I am not minded to impose all of the conditions for which the plaintiff contended.

Background

1. [4]

   On 2 July 2021, Cavanagh J made an order, pursuant to s 7(4) of the Act, appointing two qualified psychiatrists, psychologists (or combination of such persons) to examine the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court: State of New South Wales v Nikua (Preliminary) [2021] NSWSC 781.

2. [5]

   On the same date his Honour imposed an Interim Supervision Order (“ISO”) for a period of 28 days commencing on 11 July 2021. This order was subsequently extended on two occasions.

3. [6]

   In accordance with the order that the defendant be examined and reports provided, reports were obtained from Dr Furst and Dr Davis. The hearing seeking a final order proceeded before me on 23 September 2021. Dr Furst and Dr Davis were each called to give oral evidence. At the conclusion of the hearing, I reserved my decision.

4. [7]

   At the hearing, I was informed the ISO would expire on 2 October 2021. The most recent extension of the order was made on 27 August. That order renewed the ISO for a period of 28 days from midnight on 3 September. Midnight, is commonly (though not necessarily correctly) referred to as 12am. It divides one day from the next, and is, as a point without dimension, not part of either day (see Prowse v McIntyre (1961) 111 CLR 264 at 274, 278). In 24 hour time the point in time could be expressed as 24:00 on one day or as 0:00 on the next. But, the usual reference to 12am as midnight and 12pm as noon is more consistent with midnight being the first moment of the new day. A period of one day commencing from midnight on 3 September, on this basis, is all of 3 September up until the moment before 12 am on 4 September (cf. Interpretation Act 1987 (NSW), s 36(1); Acts Interpretation Act 1901 (Cth), s 36(1)). On this basis, I calculate a 28-day period from midnight on 3 September as concluding at the last moment of 30 September.

5. [8]

   A number of provisions within the Act are relevant to my determination.

6. [9]

   First, regard must be had to the objects in s 3 of the Act. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision of “high risk violent offenders”: s 3(1). Section 3(2) provides that another object of the Act is to encourage such offenders “to undertake rehabilitation”.

7. [10]

   Section 5B provides the test for the making of an order and is set out in full:

8. [11]

   There exists a discretion as to whether to make an order, even if each of s 5B(a)-(d) are satisfied, (given the use of the word “may” as opposed to “must”).

9. [12]

   There is no issue the defendant satisfies s 5B(a). That is, he is an “offender” (as defined in s 4A) and has served a sentence of imprisonment, by way of actual custody, for a “serious offence” (as defined in ss 4 and 5A). More particularly, the “index offence” (the term used by the parties to describe the offence triggering s 5B(a)) committed by the defendant falls under the definition of a “serious offence” by virtue of it being a “serious violence offence” (s 4). It is a “serious violence offence” as defined by s 5A as it is, a serious indictable offence (within s 5A(3)(a)) constituted by engaging in conduct causing grievous bodily harm to another person, with intention or recklessness as to causing that harm: s 5A(1)(a).

10. [13]

    The defendant is a “supervised offender” within the meaning of s 5I (as required by s 5B(b)) and an application for an order has been made in accordance with s 5I (as required by s 5B(c)).

11. [14]

    I did not understand either party to raise any issue with respect to s 5B(a), (b) or (c).

12. [15]

    Thus, the real question for resolution is the test in s 5B(d): that is, whether 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 the order.

13. [16]

    In determining whether or not an ESO ought to be made, regard must be had to s 9 of the Act.

14. [17]

    Section 9(1) provides I may determine the application either by making an order or by dismissing the application. Section 9(2) provides that in determining whether or not to make the order the paramount consideration must be the safety of the community. A non-exhaustive list of matters I must consider are to be found in s 9(3). To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the material tendered by the plaintiff, and to some extent that tendered by the defendant.

15. [18]

    The defendant is a 39-year old male with a history of offences involving violence. He is currently residing in the community under an ISO imposed under the Act. Because that ISO is shortly due to expire, there is some urgency in the determination of this application.

16. [19]

    The defendant and his family are from Tonga, where he resided from the age of one until the age of five. He is the youngest child, by 10 years, in a family of seven siblings, four of whom are half siblings. The defendant had disclosed in his interview with Dr Davis (one of the two court appointed psychiatrists in this matter) that he resented his siblings when he was younger.

17. [20]

    The defendant’s mother reported that the defendant did not present with any developmental abnormalities. She stated that he achieved appropriate milestones, noting that he was “very quick” to learn to walk.

18. [21]

    Following his early childhood years in Tonga, he moved back to Sydney, followed by a period of living in Melbourne. The defendant returned to New South Wales at the age of eight. It was said that the defendant did not leave the family home due to the ill health of his parents.

19. [22]

    The defendant reported that his father was physically violent towards him on occasions when he had misbehaved. He recalled one example from when he was twelve years old: he had used his brother’s hair-clippers to shave his head, and his father reportedly “went right off (using the) extension cord, whipping me … real thick whip-marks bulging out of my skin … I just thought it was something normal … but it was traumatic … if I knew I was gonna get a hiding (I would not have done it)”.

20. [23]

    The defendant stated he had also experienced violence from his mother, but said that “she wasn’t as bad as dad”. The defendant was also the recipient of violence from his siblings (who were, as noted above, significantly older than him); his brother reportedly beat him, which caused the defendant to be “scared of him”.

21. [24]

    The defendant stated that he had witnessed violence between his parents as a young child, where he had heard “screaming and things getting thrown around”.

22. [25]

    In relation to his education and school life, the defendant noted that he missed out on the whole of year nine. He characterised himself as a “rebel” during that time and was eventually asked to leave – at this point, his parents said they “had enough” with helping the defendant through school and asked him to “go to work”.

23. [26]

    The defendant’s employment history was characterised by warehouse-type positions; he noted that he did not commit to a course in order to get “a good job”. He said his drug use stopped him from going to work. The length of time he has been in custody has, obviously, also interfered with his employment in the community.

24. [27]

    Before being released from custody the defendant’s situation improved. He obtained employment as a sweeper in the gaol and was trusted and respected in this position. He recommenced the Violent Offender Treatment Program (VOTP). (He had previously commenced this program, but as further discussed below, was excluded as a result of committing the index offence.) Prior to leaving custody, the defendant had also established a relationship with a supportive partner.

25. [28]

    At the time of the hearing, he was receiving Centrelink benefits – in that respect, he stated he was “embarrassed” for having to rely on his partner for additional financial support.­­­ The defendant described his current partner as continuing to be supportive. She resides approximately one hour away from his residence.

26. [29]

    Separately, I note the following significant aspects of the defendant’s medical history (in very general terms): he contracted Hepatitis C on two occasions, and on both occasions he successfully completed interferon treatment in custody; he stated that he contracted that illness by sharing needles; he was also “knocked unconscious” during training in gaol, resulting in a head injury; and he is currently on a form of prescription medication, namely buprenorphine (a partial opiate).

27. [30]

    In terms of his psychiatric history, the defendant stated that he experienced depression as a young person, and he attributed to the care responsibilities he had taken on with respect to his parents from a young age. He denied ever having experienced suicidal thoughts. He reported having elevated mood in 2017-18 due to commencing methadone. Based on the defendant’s report of hearing voices, Dr Davis opined that his beliefs and mood at that time were generally consistent with paranoia and psychosis. Dr Davis suggested this may have been the sequelae of the defendant’s past methylamphetamine use. The defendant did not disclose any current signs or symptoms consistent with psychosis or paranoia at the time of, or in the lead up to, the hearing before me.

28. [31]

    In 2005, the defendant’s father passed away due to ill health. He currently resides with his mother in order to care for her and intends to continue to do so.

29. [32]

    The defendant’s criminal history began in 1997 when he was 14 years old with offences of stealing from a dwelling and possession of a prohibited drug. In 2005 he went to gaol for the first time for an offence of assault occasioning actual bodily harm arising from a “road rage” incident. The sentence imposed was one of 18 months with a non-parole period of 6 months. He committed a number of relatively minor offences before returning to custody in relation to an offence of aggravated break and enter, in company, with intent to commit a serious indictable offence for which he received a sentence of 5 years with a non-parole period of 3 years commencing on 20 April 2008. In 2011, a relatively short time after his release, he committed four offences of armed robbery for which he received a sentence of 6 and a half years with a non-parole period of 4 years and 3 months. During the course of this sentence the defendant received a further sentence for an offence of affray committed in 2014.

30. [33]

    The index offence is wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). This offence was committed on 16 June 2015 while the defendant was in custody serving the robbery sentences. The defendant and the victim were, at the time, enrolled in the VOTP and waiting to attend class. The defendant produced a gaol made weapon (or “shiv”) and, while holding the victim by the neck of his jumper, stabbed him in the head with what was described as “significant force” and continued to stab at the victim’s head a further nine times.

31. [34]

    On 7 April 2017, the defendant was sentenced in the District Court to a term of imprisonment of 4 years and 11 months, with a non-parole period of 2 years and 11 months, commencing on 12 August 2016 and concluding on 11 July 2019. He was ultimately released on at the expiry of the full term of the sentence, on the conditions imposed under the ISO.

32. [35]

    Following the commission of the index offence, the defendant committed further offences in custody.

33. [36]

    On 19 May 2017, the defendant was charged with affray, wound person with intent to cause grievous bodily harm, reckless wounding, and assault occasioning actual bodily harm in the company of others. The defendant ultimately pleaded guilty to common assault in full and final satisfaction of the indictment.

34. [37]

    On 17 January 2018, the defendant assaulted and injured a corrections officer. Approximately a month later the defendant was charged with assaulting a law enforcement officer (not police) and inflicting actual bodily harm, and a second charge of assaulting a law enforcement officer (not police). The defendant pleaded guilty to this offence and was sentenced to 14 months imprisonment commencing on 11 July 2019 and concluding on 10 September 2020, with a non-parole period of 8 months.

35. [38]

    On 17 February 2018 and 30 June 2018, the defendant assaulted law enforcement officers, for which he was given a wholly concurrent sentence.

36. [39]

    While the above offences did not extend the defendant’s total sentence, they did have an impact on his non-parole period. Perhaps more significant for present purposes is that they no doubt retarded his progress in custody towards lower security classifications, as well as any potential engagement in programs providing a more gradual integration into the community.

37. [40]

    I turn now to the submissions of the parties on the primary issue.

Submissions of the State on the primary issue

1. [41]

   The gravamen of the plaintiff’s submissions was that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision by way of an ESO.

2. [42]

   The bases for that position were as follows.

3. [43]

   First, the defendant has a conviction for a serious violence offence. It was noted that the index offence occurred against a background of a series of offences involving violence and weapons.

4. [44]

   While those other offences did not rise to the level of a serious violence offence, the plaintiff made the point that, in the case of at least some of those offences, there was the potential for the injury to have been greater.

5. [45]

   Secondly, the defendant has only recently, and at his second attempt, completed the VOTP.

6. [46]

   Thirdly, the defendant has spent approximately only 14 months in the community between December 2005 and his release in July of this year.

7. [47]

   Fourthly, the defendant has been assessed as an overall high risk of violent reoffending. Drs Furst and Davis expressed similar views – although the plaintiff conceded that Dr Davis was somewhat tentative in expressing his opinion.

8. [48]

   Fifthly, while most of the defendant’s violent offending occurred in custody, it was submitted that such offending indicated a propensity for “unprovoked and disproportionate violence in the community”. The plaintiff in this regard relies on the features of some of his previous offences, namely his “road rage” conviction from 2005, where a weapon was used to hit the victim; and the use of a knife to commit multiple armed robberies (one in which the defendant disclosed that he had nearly severed the victim’s finger).

9. [49]

   Sixthly, it was submitted the fact that the majority of the defendant’s offending occurred in custody does not of itself weigh against the risk of violence being carried out in the community.

10. [50]

    Seventhly, apart from the index offence, it was said that the defendant’s violence could be characterised as unplanned, and “a product of interplay between intentions and his level of emotional arousal”.

11. [51]

    Finally, it was emphasised that both experts were of the view that a period of supervision was required. It was said by Dr Furst that an ESO was required to manage the relevant risk factors. Dr Davis stated that the multiplicity of factors with which the defendant presented meant that he would require a lengthier period of stability before risk can be deemed to have been sufficiently reduced.

Submissions of the defendant on the primary issue

1. [52]

   The defendant opposed the ESO on the basis that he did not pose an unacceptable risk of committing another serious offence if not kept under supervision: s 5B(d).

2. [53]

   First, the defendant submitted that his criminal history prior to his incarceration in 2011 was unremarkable and not redolent of unacceptable risk. It was also said that the escalation of his violent behaviour could be attributed to the anti-social individuals one might encounter in custody.

3. [54]

   Secondly, it was said that there was no compelling statistical analysis to allow for a conclusion that behaviour in prison (including in segregation in maximum security) can provide a foundation to predict behaviour in the community.

4. [55]

   Thirdly, the defendant pointed to the statement of Dr Davis in his report, in which he stated that he was “cautious” about predictions as to whether any future violence would reach the magnitude of a serious violent offence.

5. [56]

   Fourthly, the defendant broadly relied upon several protective matters, including but not limited to: successful completion of the VOTP; the absence of a major mental illness; what was described as “a seamless move” into the community thus far; his stable residence and romantic relationship; and his development of a broad group of prosocial friends.

6. [57]

   The written submissions of the parties were maintained and developed orally at hearing.

7. [58]

   Consonant with the opinion of Dr Furst, the plaintiff submitted that it was significant that the defendant was still drug dependant in that he required buprenorphine injections to moderate his equilibrium for, at least, the time being.

8. [59]

   Separately, and in reply, the plaintiff referred to the judgment of Button J in State of New South Wales v Lynn [2013] NSWSC 1147, where his Honour stated at [16]:

9. [60]

   The plaintiff submitted that the defendant committed numerous other violent offences, and that in relation to those offences I must consider not only the features of the offending that actually occurred, but the potential consequences of acts where, while no more than actual bodily harm may have been contemplated, there was significant potential for far more dire consequences. Put bluntly (in my words), the submission was that while the defendant has only committed one offence of “serious violence”, this was the result of good luck rather than good management.

Evidence at hearing

1. [61]

   I turn now to the expert evidence given at the hearing before me. Because most of the matters raised by the experts at hearing are dealt with incidentally in my determination, this overview of evidence shall be concise.

2. [62]

   Dr Furst generally opined that the defendant posed a risk of committing a further serious violence offence in the community. He regarded as significant the defendant’s propensity towards associating with pro-criminal, drug-using, anti-social peers. He expressed concern over the nature of the defendant’s offending, due to the fact that such offending can (and in his experience, have) escalated and resulted in a fatality.

3. [63]

   Dr Furst considered there was no statistically significant reduction in the rate of violent offending amongst violent offenders who started or completed the VOTP compared to the control samples. When questioned by me as to the benefit that VOTP appeared to have had in the case of the defendant specifically, Dr Furst appeared to accept that the defendant had engaged with the program in a significant way. Dr Furst however emphasised that the VOTP was one of many factors to consider, and that he was more concerned with the defendant’s drug use, criminality, and anti-social personality traits, which as matters of history, are “static” risk factors.

4. [64]

   Dr Davis opined that any future violence that may be committed by the defendant has the potential to reach the magnitude of a serious violence offence under the Act, particularly should he be armed with a weapon. That conclusion was reached based on Dr Davis’ understanding that the most serious offences committed by the defendant occurred when the defendant was armed. He said that despite the good progress that has been made by the defendant, the static risk factors in the form of past offences and length of incarceration, remain. Dr Davis agreed with Dr Furst that substance use was to be considered an important factor, and separately echoed Dr Furst’s remarks on the importance of not associating with anti-social peers.

5. [65]

   Dr Davis emphasised that his conclusion in terms of the likelihood of a serious offence was a cautious one. He was clearly not as emphatic in his views as Dr Furst. Nonetheless, Dr Davis was of the view that, notwithstanding the fact that only the index offence reached the statutory threshold under the Act, and that the defendant had made real progress since that time, the nature and extent of the defendant’s other offences, including offences committed subsequent to the index offence, were cause for concern.

Determination of primary issue: whether to make the order

1. [66]

   For the reasons that follow, I am of the view that an ESO should be made. In coming to the view that the test in s 5B(d) is satisfied, I have had regard to the paramount consideration under s 9(2), that is, the safety of the community, and the other mandatory, non-exhaustive matters listed under s 9(3) of the Act.

2. [67]

   The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P), and subsequently applied by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [23]–[24] (citations omitted):

3. [68]

   The defendant pointed to the fact that the defendant has only been convicted of one offence which constitutes a serious offence under s 4 of the Act, that being the index offence. As noted above, that offence was committed in custody in 2015. However, while some six years have elapsed since then, further offences of violence (while not of the same seriousness) have been committed since that time, with the most recent conviction relating to an offence in June 2018. (And, while the most recent internal misconduct charge was in April 2020, I do not place any weight on that.)

4. [69]

   The defendant also pointed to the fact that the index offence, and various other offences, were committed whilst in custody, and submitted the commission of offences in custody is not a good indicator as to the likelihood of the commission of offences in the community. The experts, however, formed their views as to the risk posed by the defendant while fully cognisant of this history. Dr Furst found that the defendant suffers from substance use disorder and an anti-social personality disorder. He was also of the opinion that the defendant “has a loading of static factors and a moderate to high loading of current clinical factors that are associated with the risk of future violence, including future serious violence, meaning he is at high risk of future violent offending, including violent offences of [a] serious nature involving the use of a weapon”.

5. [70]

   Dr Davis, while not as firm in his opinion as Dr Furst, said (at p 46 of his report):

6. [71]

   Neither expert resiled from this opinion in oral testimony.

7. [72]

   The submission that the index offence and vast majority of his violent offences have been committed in custody can also be viewed in light of the fact that the defendant has been in custody for all but approximately 14 months between December 2005 and his recent release. In other words, it does not greatly assist him to say that his offending has occurred in custody when he has had relatively little opportunity to be tested in the community.

8. [73]

   In my view the situation can be broadly described as one in which the defendant has committed a number of violent offences, received sentences of imprisonment, and, until relatively recently, made little progress towards rehabilitation. As mentioned, the index offence was committed whilst the defendant was enrolled in the VOTP, and waiting to attend a class, leading, unsurprisingly to his removal from the program at that time and a disruption to his progress in custody (by way of his prison classification or otherwise).

9. [74]

   Against the above, I accept that the defendant’s more recent progress is impressive. He recommenced in the VOTP in 26 June 2020 (concluding his participation in that program on his release on his ISO on 2 July 2021). He engaged constructively with that program. Since his release, he has engaged positively with his DSO apparently forming a good relationship.

10. [75]

    It is also clear that the defendant has cooperated with the experts. This is particularly apparent in the report of Dr Davis, who spent almost 5 hours with the defendant. Dr Davis’s report reveals the defendant engaged with impressive candour and insight.

11. [76]

    In addition, the defendant has made prosocial connections in the community. He lives with and cares for his elderly mother. He has continued in a relationship, formed prior to his release. His partner appeared to be an extremely positive influence on the defendant, and her evidence showed her to be understanding and supportive. The defendant has re-established connections with other positive influences, such as Mr David Tulukitau, with whom he regularly exercises. He has also re-established a bond with his sister Ms Linda Sefo, who, for reasons one can readily understand had, prior to the defendant’s recent release, gone for many years without contact with him.

12. [77]

    These matters are all extremely promising indicators of the defendant’s potential rehabilitation. However, given the relatively short time he has been in the community, they remain just that – indicators of potential rehabilitation.

13. [78]

    It is to be borne in mind that the defendant’s release was from a maximum security environment. That is to say, he did not have the benefit of adjustment to either lower security prison environments or leave programs designed to assist with reintegration into the community. As Dr Davis opined, the transition from gaol to the community is itself a potential stressor. While things are presently going well it can fairly be assumed that the defendant will be tested by events over particularly the next 12 to 18 months (a period described by Dr Davis as critical). In short, despite the defendant’s impressive progress, the relatively short period over which that progress has been demonstrated is such that the expert opinion evidence to the effect that he presents a high risk of committing a serious violence offence is, in my view, soundly based.

14. [79]

    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 the order. No submission was made that, should I reach this state of mind, there were matters that would lead me to exercise my discretion to decline to make an order.

15. [80]

    For the reasons above, I am of the view that an order should be made. I turn now to the resolution of disputed conditions.

Determination of secondary issue

1. [81]

   Section 11(1) of the Act provides that an extended supervision order “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”. An inclusive list of directions which may be given is then set out at s 11(1)(a) to (n).

2. [82]

   Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.

3. [83]

   The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act (discussed earlier in this judgment).

4. [84]

   Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44]; citations omitted):

5. [85]

   Although the defendant was opposed to the making of any order, he accepted that, if an order were to be made, then various conditions sought by the plaintiff would be appropriate within the terms of s 11 of the Act.

6. [86]

   The defendant, subject to some relatively minor variations, accepted the appropriateness of the conditions imposed by Cavanagh J. With respect to the conditions conceded by the defendant to be appropriate, that concession was, in my view, appropriately made, and I propose to include those conditions.

7. [87]

   As a general proposition counsel for the defendant described the disputed conditions sought by the plaintiff as “a solution looking for a problem”. I understand this to mean the disputed conditions sought by the plaintiff have the potential to disrupt his transition into the community, particularly having regard to the progress made by the defendant whilst the subject of supervision under an ISO which does not include the contentious conditions.

8. [88]

   From the plaintiff’s perspective, however, whilst accepting that the defendant has shown himself to be amendable to the supervision currently in place and in that regard the situation is promising, the length of time over which this has occurred is such that it is, in essence, too early for confidence.

9. [89]

   There is some merit in the plaintiff’s contention. A period of less than three months, in the context of the defendant’s lengthy imprisonment is not a long time. While things are progressing remarkably smoothly, it is not known what stressors will in time be placed on the defendant and his capacity (given his history) to deal with any such stressor.

10. [90]

    Another way of viewing the matter, however, is that the plaintiff’s position might be seen as “all stick and no carrot”. The defendant has shown remarkable progress. As already observed, his engagement with Dr Furst and particularly Dr Davis appeared to be candid, complete, and demonstrative of a level of insight that appears to have been lacking in the past. Two things flow from this: first, the question as to the need for greater stringency in the conditions than presently exists, and secondly, a legitimate concern to see the current progress is recognised, encouraged, and not stunted by what may appear to be to the defendant a heavy-handed approach.

11. [91]

    I turn now to a consideration of each of the particular conditions.

Determination of specific conditions

1. [92]

   The parties agree that the conditions 1 to 3 imposed by Cavanagh J are appropriate.

2. [93]

   Condition 4 in the summons was not imposed as part of the ISO. The plaintiff maintains that the condition should be imposed. The condition sought was in the following terms:

3. [94]

   “4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.”

4. [95]

   The defendant opposed the condition.

5. [96]

   The plaintiff did not submit that electronic monitoring could prevent the defendant engaging in acts of violence, particularly with respect to spontaneous acts of violence. What was put on behalf of the plaintiff was that it would assist in ensuring the defendant’s compliance with the schedule set by the DSO. This in turn would minimise the risk of the defendant falling in with an anti-social peer group and relapsing into the use of illicit drugs.

6. [97]

   It can be accepted that anti-social contacts and drug relapse would impact the defendant’s rehabilitation and in turn increase the risk of a serious violence offence. Further, more effective monitoring would likely assist in detecting departures from the schedule. This was a point made by Dr Furst.

7. [98]

   Dr Furst conceded, however, he had not spoken to the DSO, nor made any other enquiries, as to what means of enforcement were available with respect to monitoring compliance with the schedule short of electronic monitoring. He was, for example, not aware as to whether any physical checks were done from time to time (see Tcpt, 23 September 2021, p 29). In this regard, it might be observed, that restrictions are commonly placed on persons, without the additional constraint of electronic monitoring. It is, for example, an extremely common occurrence in the context of bail. Dr Furst also candidly acknowledged that his opinion with respect to electronic monitoring did not involve any balancing of competing interests, that issue being one for me.

8. [99]

   Dr Davis also gave evidence in relation to the issue of electronic monitoring. He, too, described the question as involving a balancing act which was not one for him. Dr Davis, however, whilst acknowledging the obvious utility of electronic monitoring in enforcing compliance with scheduling, also expressed the opinion that the use of electronic monitoring may actually increase risk. The basis for this opinion is that the requirement to wear an ankle bracelet has the potential to stigmatise an individual. In particular, in the defendant’s case, Dr Davis expressed a concern that the defendant may believe that the bracelet will (wrongly) identify him as a child sex offender placing the defendant under greater stress and, as a result, at increased risk of reoffending. Dr Davis also noted the potential for such monitoring to undermine any relationship of trust between the individual and the DSO. That is of concern in this case having regard to the very positive relationship which appears to have developed between the defendant and his DSO, a matter which is to the credit of them both.

9. [100]

   For the above reasons, I am not persuaded that a condition requiring the defendant to submit electronic monitoring is appropriate in this case.

10. [101]

    The parties agree to conditions 5 to 7 in the terms imposed by Cavanagh J.

11. [102]

    In relation to conditions 8 and 10, the parties agreed with the conditions imposed by Cavanagh J.

12. [103]

    In relation to condition 9, the parties agreed to a modification of the order to extend the curfew to between 11pm and 6am. I agree that this is appropriate.

13. [104]

    In relation to condition 11, the defendant sought an amendment to add the words “a DSO should not unreasonably refuse a request by the defendant to spend the night at his partner’s address”. The plaintiff submitted that such a condition seeks to constrain the DSO and as such is inappropriate. Such a condition suggests the DSO could unreasonably refuse other requests rather than acting on the assumption that the DSO will act reasonably (see State of New South Wales v Pearson (Final) [2021] NSWSC 775 at [71]). I do not propose to make the amendment as sought by the defendant.

14. [105]

    The parties agreed to an amendment to condition 12 to include “a person is able to be added to a list of visitors for which notification is not required upon entry or remaining at the defendant’s approved address”.

15. [106]

    The parties also agreed to an amendment to condition 13 to include “a person is able to be preapproved to stay at the defendant’s address overnight”.

16. [107]

    These are agreed.

17. [108]

    Condition 28 is in dispute. The other conditions are agreed. Condition 28 in the schedule to the summons is in the following terms:

18. [109]

    “The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.”

19. [110]

    Cavanagh J declined to include this condition in the ISO. In doing so, his Honour said (at [64]):

20. [111]

    “I agree with the defendant’s submission that the history of his offending and associated risk factors is impulsive violence. Disclosure of his criminal history to other persons in advance is more likely to be deleterious to his reintegration and prosocial activities than mitigate any risk. I disallow Condition 28.”

21. [112]

    Since the judgment of Cavanagh J, Dr Furst had opined that the ability of the DSO to disclose the defendant’s criminal record if reasonably necessary “would be of assistance in preventing potential harm to others in the community, including the potential risk of serious violence” (report of Dr Furst, p 15). Dr Furst repeated this view in his evidence.

22. [113]

    As is the case with electronic monitoring, it can be accepted that disclosure of the defendant’s criminal history might assist in reducing risk. However, again, there is a balance to be struck. Dr Davis raised the, perhaps obvious, concern that disclosure of the detail of defendant’s criminal history to, for example, a potential employer, will make it difficult (if not impossible) for the defendant to obtain employment.

23. [114]

    My view, having regard to the deleterious effect that disclosure of the detail of the defendant’s criminal history may have on his reintegration into the community, is that a condition allowing the defendant’s DSO to disclose the defendant’s criminal history to others “if the disclosure is reasonably necessary” is not appropriate. I am fortified in my view having regard to the difficulty imposed on a DSO in deciding what may or may not be “reasonably necessary”. I do not propose to make condition 28.

24. [115]

    Conditions 31 to 33 – gambling

25. [116]

    These conditions are agreed by the parties.

26. [117]

    These conditions are agreed by the parties.

27. [118]

    There is no dispute between the parties that conditions which allow the defendant’s DSO to monitor his electronic communications and Internet access are appropriate. There is, however, a dispute as to how best to frame the conditions.

28. [119]

    In my view, the conditions in the terms proposed by the defendant, which essentially follow those imposed by Cavanagh J, are sufficient to allow monitoring of the defendant’s electronic communications. Broader conditions such as those sought by the plaintiff requiring the defendant to notify his DSO before using any device that accesses the Internet are fraught, given the defendant’s relative unfamiliarity with technology and the modern reality that many devices, including devices such as televisions, can be used to access to the Internet.

29. [120]

    With respect to conditions 40 to 44, the plaintiff sought imposition of these conditions as imposed by Cavanagh J, while the defendant opposed these conditions. In my view, these conditions do not present any particular difficulty with respect to compliance and are therefore appropriate. I propose making conditions 40 to 44 in their current form.

30. [121]

    These conditions are agreed with the exception of condition 48. In that regard the plaintiff seeks a condition that the defendant “must not significantly change his appearance without the approval of a DSO”. In relation to this condition, Dr Furst said that “allowing the defendant to change his appearance significantly without prior approval of a DSO would increase the likelihood of him acting in a criminal manner, such as disguising himself with the intention of committing a criminal offence, possibly an offence involving serious violence, such as robbery”. That is likely to be the case in any matter. The question is whether the condition is appropriate in the circumstances of this defendant.

31. [122]

    In relation to this condition Cavanagh J said (at [71]):

32. [123]

    “The defendant opposes the condition which prevents him from significantly changing his appearance without the approval of a DSO. It is a broadly worded condition. I am uncertain whether, for example, growing a beard or shaving off a beard would constitute a significant change in appearance. No doubt such a condition is designed to ensure that the defendant does not develop a means of avoiding detection if he is in places he should not be but, again, there is simply no evidence that this condition mitigates the risk in any way. None of his offending has been associated with any attempt to disguise his appearance and none of his risk factors are associated with offending which might be committed by persons endeavouring to attempt to disguise their appearance, such as loitering around schools or other places where certain types of offenders should not be.”

33. [124]

    I respectfully agree. I do not impose condition 48.

34. [125]

    The parties agree to conditions 51 to 55 as imposed by Cavanagh J. Cavanagh J declined to impose conditions 56 and 57. The plaintiff pressed these conditions. The defendant opposed these conditions. Condition 56, if imposed, would require the defendant to agree to his treatment and service providers, and health care practitioners sharing information with the DSO “as considered appropriate by those treating practitioners for addressing the defendant’s risks in relation to a serious violence offence”. In my view, such a condition is not appropriate. Dr Davis pointed out that healthcare providers (generally) have legal and ethical obligations to make disclosures where that practitioner forms a belief that the person poses a risk to someone else or to themselves”: Tcpt, 23 September 2021, p 44(27).

35. [126]

    Further, as Dr Davis pointed out, such a condition may be counter-productive in that it may lead to the defendant not seeking treatment when it is needed. Indeed, the difficulty that arises with such a condition, and its capacity to dissuade the defendant from seeking treatment, is that the defendant’s decision to decline to seek help due to an absence of confidentiality will not be based on any actual decision by the treatment provider as to whether disclosure is appropriate. Rather, it will be based on the defendant’s guess as to whether the treatment provider will consider disclosure appropriate. I decline to make condition 56.

36. [127]

    I decline to make condition 57 for largely the same reasons, noting that condition 57 will only prevent information sharing with respect to confidential information provided by the defendant. Section 24AF(1) of the Act places a duty on each relevant agency to cooperate with other relevant agencies “in the exercise of the functions of that agency that are concerned with risk assessment and management of offenders who are subject to this act”. Relevant agencies are defined to include, inter alia, Corrective Services NSW and the NSW Police Force: s 24AA of the Act. As the defendant pointed out in submissions, the evidence suggests relevant agencies are already co-operating.

Conclusion

1. [128]

   The conditions I regard as appropriate in all the circumstances of this case, based on the above reasons, are those set out in the schedule to this judgment.

2. [129]

   The plaintiff sought an order for three years. Dr Davis gave evidence that in his experience, for persons in a position similar to that of the defendant, entering the community having been in custody for a significant period of time, the first 12 to 18 months is significant. Dr Davis said that it is in that period, the stress of being in the community and potential encounters with prior anti-social peers may lead to relapse into substance use. He said “that when I see people two to three years afterwards, if they’ve kept their nose clean, that seems to be when I’ve been able to reduce their risk”: Tcpt, 23 September 2021, p 50(36). Having regard to this evidence, and the extremely promising transition the defendant has thus far made, I am of the view that the appropriate term of the order is two years.

Orders

1. [130]

   I make the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of two years from the date of the order.

   2. (2)

      Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, must comply with the conditions set out in the schedule to this judgment.