State of New South Wales v De Vries (Final)

By a summons filed on 11 June 2021, the plaintiff, the State of New South Wales, sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) in respect of the defendant, Mr Glen Devries, as well as interim orders pending the final determination of the matter.

A preliminary hearing took place on 27 July 2021. On 2 August 2021, R A Hulme J made the following orders:

His Honour’s reasons for making these orders are to be found in State of New South Wales v Devries (Preliminary) [2021] NSWSC 949.

The interim supervision order (ISO) was extended on a number of occasions with the result that it was due to expire at midnight at the end of 4 November 2021.

In accordance with the orders of R A Hulme J, the defendant was examined by Ms Thea Gumbert, psychologist, on 31 August 2021 and by Dr Calum Smith, forensic psychiatrist, on 3 and 13 September 2021. Each of those experts provided a report and a supplementary report on the defendant. It can also be noted here that the defendant provided a report of Dr Sally McSwiggan, neuropsychologist, which dealt principally with the form of the conditions which would be most appropriate for the defendant given his cognitive condition and his ability to understand, recall and comply with the proposed conditions.

The matter came on for final hearing before me on 28 October 2021. On that day, the plaintiff filed, by leave, an amended summons which sought essentially the same relief but with revised conditions proposed for inclusion in the ESO that was sought. These revised conditions were prepared with the considerable benefit of Dr McSwiggan’s observations and comments and reflected a commendable level of interaction and consultation on the part of both the plaintiff and the defendant and their legal representatives.

One or two days prior to the hearing on 28 October 2021 and on the day of the hearing itself, the parties filed and served a number of new or updated expert’s reports and affidavits. In particular, the defendant filed on the morning of the hearing an expert report dated 27 October 2021 from Aunty Glendra Stubbs, an Aboriginal woman of the Wiradjuri People of New South Wales with long experience in issues affecting the wellbeing of Aboriginal people. As I was informed, this was the first occasion when such a report has been put in evidence before the Court in relation to the conditions to be included in an extended supervision order sought to be imposed on an Aboriginal person under the CHRO Act.

On my initial reading of Aunty Glendra’s report, it included significant information and insights into the types of conditions that might be appropriate and inappropriate for an Aboriginal person such as the defendant and the support and management that might assist him to comply with any conditions imposed. In section 9 of her report, Aunty Glendra wrote in relation to the conditions that might be imposed as part of an ESO as follows:

This and related matters could not be properly considered if the parties were not given a sufficient opportunity to review Aunty Glendra’s report and the other more recent material and to attempt to develop appropriate conditions which might be included in an ESO and a plan to provide support for the defendant to comply with those conditions.

The defendant did not contend that the preconditions for the making of an ESO were not satisfied in this case or that an ESO was not appropriate in the circumstances. On the basis of the evidence admitted as at 28 October 2021, I was satisfied that the statutory requirements had been met and an ESO should be made.

Nonetheless, it appeared to me that the final form of any conditions to be included in the ESO and its duration should not be determined until after the parties had a sufficient opportunity to consider Aunty Glendra’s report and the other more recent material and to attempt to develop appropriate conditions which might be included in the ESO in light of that report and material. In the interim, the parties were content for conditions 1 to 4 and 8 to 51 in the form annexed to the amended summons to be included in the ESO and for it to be made for 3 years. Having regard to all of these matters, I made the following orders and directions on 28 October 2021:

On 11 November 2021, with the consent of the parties, the Court amended the times for compliance with the orders so as to allow time for proper consultation involving Aunty Glendra Stubbs and other support persons.

On 18 November 2021, the plaintiff filed a notice of motion in effect seeking to have changes made to the conditions with which the defendant was directed to comply as part of the ESO. There was no application to vary the duration of the ESO. As I understood it, this was to reflect what had been discussed in the consultation process and it also included expressing the conditions in language more readily understandable and suitable for the defendant. It was common ground that all of the conditions were then agreed between the parties except for conditions 5 and 6. Those two conditions related to scheduling, which was designed to operate in conjunction with electronic monitoring to which the defendant agreed.

The plaintiff proposed that those scheduling conditions be as follows:

The defendant opposed the making of the scheduling conditions in that, or any other, form.

On 24 November 2021, at the hearing of the matter, it was noted that some of the documentation had been filed the day before the hearing. As a result of that, as well submissions by the parties and discussions between the Bench and counsel concerning scheduling and potential appropriate alternatives, both parties indicated that they would appreciate an opportunity for further discussion and the obtaining of any necessary instructions. Consequently, on that day, the Court made the following orders:

With commendable good sense and cooperation, the plaintiff and the defendant filed all their material and reached agreement as to all conditions to which Mr Devries’s ESO should be subject by the time the matter came on for hearing on 7 March 2022. I was satisfied that the form of conditions agreed between the parties was appropriate and, consequently, on 7 March 2022, I ordered, in relation to the ESO imposed on Mr Devries by order 1 made on 28 October 2021, that the conditions be varied from 7 March 2022 so as to read as set out in the form of conditions which I initialled and dated and placed with the papers. The conditions so imposed are attached as a schedule to these reasons. At that time, I reserved my reasons for judgment.

In all the circumstances and given the agreement of the parties, my reasons for making the ESO and directing that the defendant comply with conditions as varied can be more shortly stated than might otherwise be the case.

From the evidence in this matter, including various psychological and psychiatric reports, it appeared that the defendant is a 32 year old Indigenous man who comes from the area of Bourke and Brewarrina and he is of the Gamillaraay people. He was born in Brewarrina and lived there until he was about three years old when his family moved to Liverpool in Greater Sydney. His parents were unable to care for him and the adults in the house where he grew up were his grandmother, Nan, and his uncle and auntie. He had a number of brothers and sisters and there were about 10 children in the house.

The defendant reported that his father abused alcohol and cannabis and engaged in domestic violence. He sustained beatings and, in addition to physical abuse and neglect, he reported having experienced child sexual abuse but did not want to talk about it. One of the incidents was said to have happened “at the creek” when he was nine or 10 years old and on another occasion it was said that three officers from Juvenile Justice were involved.

The defendant attended primary school in Liverpool and was suspended for fighting with other students. According to the defendant, he was expelled from high school in Year 9 as a result of hitting the Principal because the Principal had hit the defendant’s brother, spat on his face and lifted him. The defendant commented that he was into sports including swimming, football and a bit of athletics when at school and he follows Rugby League, being a South Sydney Rabbitohs supporter.

In about 2004, when the defendant was about 15 years old, his Nan died. After her death, the applicant said that he became homeless and lived on the streets between periods under Juvenile Justice supervision. He reported spending much of his time associating with what one of the experts described as “an antisocial peer network”. It appears, however, that at about this time he went to Queensland and worked on the trawlers where he reported that he got on “okay with other boys” at this time. He eventually returned to New South Wales. Since late 2007, almost the whole of the defendant’s life has been spent in custody.

The defendant’s criminal record, prior to the index offence, included (without attempting to be exhaustive) convictions for common assault, being armed with intent to commit an indictable offence, stealing property in a dwelling house, and two offences of aggravated sexual assault with infliction of actual bodily harm. The latter two offences resulted in the defendant being sentenced to imprisonment for six years and three months commencing on 20 May 2011 (with a non-parole period of four years) and seven years and three months commencing on 20 May 2012 (with a non-parole period of four years and three months), respectively. The defendant was released to parole on 22 February 2018, 24 September 2018 and 15 March 2019 but in each case returned to custody after only a short period.

The circumstances of the index offence, together with an unrelated assault offence, were recorded by Magistrate Abdul-Karim, when sentencing the defendant on 23 November 2020, as follows:

The learned magistrate imposed an aggregate sentence of 12 months imprisonment commencing on 5 August 2020 and expiring on 4 August 2021, with a non-parole period of eight months expiring on 4 April 2021. After allowing a discount of 25% for the pleas of guilty, the indicative sentences nominated by the sentencing magistrate were 11 months for the sexual touching offence and four months for the assault offence.

As has been noted above, an ISO was imposed on the defendant commencing on the expiration of his sentence on 4 August 2021.

In the present case, the parties accepted that the defendant was a “supervised offender” within the meaning of s 5I of the CHRO Act, that the prerequisites in s 5B(a), (b) and (c) of that Act were satisfied and that the requirements of ss 5H, 5I, 6 and 7 had been complied with. I am satisfied that this acceptance was well founded, particularly in light of the circumstances referred to above.

As to the making of an ESO in such a case, ss 5B and 5D relevantly provide:

The Court’s determination of the application for an ESO was governed by s 9 of the CHRO Act which provides:

In the present case, the parties were agreed that the ESO should be for a period of three years, as is permitted by s 10(1A)(a) of the CHRO Act.

In determining whether I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO, and whether to make such an order, I had regard to the safety of the community as the paramount consideration in accordance with s 9(2), the matters identified in the relevant paragraphs of s 9(3) of the CHRO Act and to the relevant provisions of the CHRO Act including those identified above and the two objects of that Act stated in s 3.

Since there was no dispute as to the appropriateness of the imposition of an ESO, I shall not refer in detail to all of the material I have considered. It is sufficient to set out in these reasons the most relevant aspects of the reports from Ms Gumbert and Dr Smith, which fall within par (b) of s 9(3) of the CHRO Act and which helpfully refer to the most pertinent other material within pars (d) to (i), some of which has also already been noted above.

Ms Gumbert’s report of 17 September 2021 notes, in relation to his recent relationship with his family, that the contact had been intermittent and that he would mostly see family during the periods when he was released. He reported that his mother now resides in Erskineville and that he had not had contact with her in the last year or two because “she rang the coppers on me”, but he was reluctant to discuss the incident further. The defendant told Ms Gumbert that he did not believe he would resume contact with his mother. He said that his brothers were “in and out of jail” but one of them currently lived in Liverpool and he described his sisters as not being involved in crime but they live in Queensland, Nowra and Liverpool and he speaks to them on the phone often although he had not seen them since 2004. The defendant saw his father, who died in August 2020, and his father’s new partner and son as family members and has a positive relationship with them. The defendant also has two sons and a daughter by three different mothers. In relation to his family generally, he said to Ms Gumbert “it kills me I can’t go and see them” due to his supervision orders and that “family is everything to me”.

Ms Gumbert recorded that the defendant had been assessed using the Static-99R actuarial measure of relative risk for sexual offence recidivism and his score placed him in the highest nominal risk category, which could be interpreted as his presenting a “well above average” risk of sexual recidivism. It was said:

Using the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend – Sexually (ARMIDILO-S) tool, Ms Gumbert concluded that the defendant’s risk rating overall was moderate. She also noted the previous risk assessments carried out by Ms Cieplucha, which were consistent with Ms Gumbert’s conclusions.

After describing the defendant’s dysfunctional, deprived and traumatic upbringing, Ms Gumbert noted that his education had to be viewed against a backdrop of borderline intellectual functioning and possible learning disability. She noted his substance abuse which served in part as a maladaptive means to cope with trauma and emotional distress. It was also recorded that that the defendant denied the most serious offences on his record, particularly those of a sexual nature, maintaining that he has been repeatedly “set up” in relation to the offences and that he had admitted to sexual offences and participated in treatment solely for pragmatic reasons. It was noted that his progress in community supervision had been poor. Ms Gumbert referred to the defendant’s acknowledgement of his extant diagnosis of schizophrenia and history of psychosis and mood instability but noted that he did not regard himself as in need of treatment or medication. He indicated resistance to receiving support as he disliked discussing personal matters or areas of difficulty. He also expressed resentment towards and a sense of injustice regarding the prospect of further community supervision under an ESO.

Ms Gumbert noted the defendant’s extant diagnosis of schizophrenia and expressed the opinion that he would require medium to long-term psychiatric review and management in that regard. She also concurred in the diagnosis of antisocial personality disorder previously made by Dr Richard Furst, psychiatrist, and was of the opinion that the defendant’s symptoms were consistent with a diagnosis of cannabis use disorder which would be classified as severe. Ms Gumbert was of the view that he may be able to reduce or cease cannabis use if provided with appropriate support which might include any combination of residential rehabilitation programs, community-based drug and alcohol counselling self-help groups, and cannabidiol replacement treatment. The possibility that the defendant may meet the criteria for diagnosis with a recurrent depressive disorder was also acknowledged.

Ms Gumbert was of the opinion that the defendant posed a significant risk of committing a further serious offence of a sexual and/or violent nature. The scenarios associated with particularly high risk was said to include those where the defendant was unsupervised in the community, was regularly using alcohol or other drugs, was experiencing increased emotional distress in relation to psychosocial factors and was non-compliant with his medication. Ms Gumbert relevantly concluded:

In relation to the proposed conditions, Ms Gumbert concurred with the opinion of Dr McSwiggan that the defendant’s cognitive limitations would be more salient considerations than his cultural background with regard to his capacity for understanding and complying with an ESO. Nonetheless, Ms Gumbert said:

In her supplementary report, Ms Gumbert adhered to her earlier views and noted that she remained of the opinion that the defendant would require “external support in order to arrange and attend treatment”. She also expressed her agreement with the recommendations of Dr Smith in regard to provisions for the defendant to visit his family and children whose support was important to him, and it was noted that undue restrictions on visiting his family may increase his risk of breaching an ESO.

Dr Smith provided a psychiatric report in which he diagnosed the defendant with complex post traumatic stress disorder, antisocial personality disorder, substance use disorder and cognitive impairment. It can also be noted that Dr Smith recorded that the defendant had been previously diagnosed with borderline intellectual disability and his clinical impression was broadly in keeping with this although a low level of formal education, which may have significant implications, was also noted.

Dr Smith did not, however, see any compelling evidence that the defendant had schizophrenia, a major mood disorder or bipolar disorder. He was of the opinion that there were past symptoms of psychosis in the presence of substance use that may indicate a substance induced psychotic disorder that is in remission, although he did note that the defendant was on treatment which may be masking the symptoms.

Dr Smith was of the opinion that the defendant could be categorised as presenting a high risk of violence and moderate to high risk of sexual offending. The doctor referred to previous risk assessments to a similar effect with which he concurred. Dr Smith was of the opinion that in this case substance misuse appeared to be very strongly correlated with the offending and if that substance misuse could be ameliorated then the defendant’s risk would ameliorate.

Dr Smith was of the opinion that the defendant should have contact with his family and should be supported to have a relationship with his children, given that there was nothing to suggest that the defendant would be a particular risk of offending against his own children. The doctor was also of the view that the defendant’s substance misuse was required to be addressed, that he needed to be followed up by a local community mental health team, that he needed to be compliant with medication and a long-acting injectable medication may be appropriate as well as an antidepressant. In addition, Dr Smith was of the view that there would be psychological benefits to him through understanding his experiences of sexual assault.

It was also noted that, as a result of his intellectual disability, the defendant has difficulties in impulse control, struggles with understanding complex issues and appears to have difficulties maintaining behavioural change for a prolonged period of time stop. In addition, this disability impacts on the defendant’s ability to understand restrictions and rules and therefore to follow them.

Dr Smith was also of the opinion that if the defendant engaged with structured week planning, was medication compliant and attended appropriate support groups, then some of the risk factors should be attenuated.

In Dr Smith’s supplementary report dated 27 October 2021, he indicated that his views had not changed but he did make a number of additional comments including the following in relation to written planning:

Dr Smith also endorsed Dr McSwiggan’s approach to the formulation of appropriate conditions in language readily comprehensible for the defendant.

In relation to the other material described in pars (c) to (i) of s 9(3), the parties did not draw my attention to anything that was inconsistent with the views of Ms Gumbert, Dr Smith and Dr McSwiggan and I did not discern that any of that material called into question in any way the opinions of those experts. In summary, all of that other material supported the making of an ESO in the defendant’s case.

In all the circumstances:

As has been noted above, the parties were agreed that the ESO should be for a period of three years. I accepted that this period was appropriate, in the light of the psychological and psychiatric evidence, the defendant’s circumstances and history of offending, and the nature and extent of the risk posed by the defendant.

As noted above, the parties reached agreement as to the conditions to be included in the defendant’s ESO after submissions and discussion between the Bench and counsel on a number of occasions. I accepted that these agreed conditions were appropriate since they covered, in a comprehensive way, the matters which were likely to ensure the immediate protection of the community and, at the same time, encourage the rehabilitation of the defendant, which is also likely to protect the community in the longer term. There were a number of additional considerations which supported the form of the conditions imposed which deserve specific recognition in this case.

First, the conditions deliberately did not mirror the wording of s 11(1)(a) to (n) of the CHRO Act or the standard formulation of some conditions often seen in ESOs. The report of Dr McSwiggan drew particular attention to the fact that the defendant’s cognitive limitations, in part developmental and in part the result of impoverished educational opportunities, meant that if conditions were expressed in a form which the defendant was able to understand and recall, he would be more likely to be able to comply with the conditions. Ms Gumbert agreed in large measure with Dr McSwiggan’s suggestions in this regard. In light of this material, the advisers of both the plaintiff and the defendant co-operatively developed a form of conditions with simplified language and pictures to illustrate what the conditions required, in order to enhance the effectiveness of the conditions.

Secondly, the Court and the parties had the considerable benefit of the two reports from Aunty Gledra Stubbs, as well as her input in discussions concerning the form and content of the conditions. Her evidence, obtained by the defendant’s legal advisers, was particularly helpful in coming to an appreciation of the cultural, family and social implications of the defendant’s Aboriginal heritage and background as a man of the Gamillaraay people and how the contents of the conditions could best be formulated and expressed to take these matters into account in an appropriate way. The plaintiff responded positively and constructively to Aunty Glendra’s evidence and input.

As a result, the agreed conditions contain a preamble which makes clear, in simple language, the nature and purpose of the conditions, as well as the fact that the defendant can obtain the benefit and assistance of an Indigenous support person in understanding the conditions and in talking to his Departmental Supervising Officer (DSO). The preamble also makes clear, in simple terms, that there are adverse legal consequences if the defendant does not comply with the conditions.

In addition, Aunty Glendra’s evidence was also of particular assistance in determining the nature of the defendant’s obligations in relation to scheduling or planning his activities. In the defendant’s specific case and having regard to the cultural appreciation of time, the cultural and social significance of family, and the defendant’s cognitive and literacy limitations, conditions requiring the preparation of and adherence to a weekly schedule, which would normally accompany and complement electronic monitoring conditions, were not included. This was so even though the defendant readily accepted that electronic monitoring was reasonably appropriate. In place of the more usual scheduling conditions, the parties agreed to conditions 5 and 6 which required the defendant to work with a DSO on developing a case management plan for things he might do during the day including such matters as going to rehabilitation programs and meetings, working with his NDIS support workers, visiting health professionals, learning skills and exercising. These conditions included the statement that the defendant “should make every effort to attend or take part in any activities in the [case management] plan.” In my view, these conditions were better adapted to the defendant’s cultural, family and cognitive circumstances and needs, and were more likely to assist in achieving both the protection of the community and the rehabilitation of the defendant.

I also noted that since his release from custody and up to the hearing on 7 March 2022, the defendant has made a very commendable effort to co-operate, as required, with his supervising officers and comply with the conditions of his ESO. He has not always been successful. The evidence, including the defendant’s affidavit of 15 February 2022, established that the defendant breached the conditions when he consumed prohibited drugs and acted aggressively. As I understood it, he pleaded guilty to breaching the conditions of his ESO, acknowledged his wrongdoing and has shown a positive attitude to abstaining from drugs in the future. In particular, I noted that he has asked his DSO to test him for illicit drugs every week to help him stay clean. In addition, I accepted that:

Finally, I accepted that the defendant’s increased insight and motivation to make the ESO a positive step in his life were demonstrated by the following evidence in his affidavit:

In my view, the conditions in the form imposed on 7 March 2022 were appropriate and well adapted to the purposes they should serve.

For all these reasons, orders to the following effect were made in the proceedings: