State of New South Wales v Helmhout (No 2)

1. [1]

   By Further Amended Summons filed with leave on 3 August 2016, the plaintiff seeks an order, pursuant to ss 5F and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), for the defendant to be made subject to a high risk violent offender extended supervision order for a period of 3 years. The defendant would, by such an order, be obliged to comply with a number of conditions regulating his conduct, as set out in the Schedule to the Further Amended Summons.

2. [2]

   The matter came before Schmidt J at a preliminary stage of the proceedings, when her Honour made orders for the appointment of two psychiatrists to examine the defendant and report to the Court. Her Honour also made an interim order subjecting the defendant to supervision pending final determination of the State’s application: State of New South Wales v Helmhout [2016] NSWSC 725.

3. [3]

   Prior to her Honour making the interim supervision order the defendant had been at liberty subject to parole, following his release from prison after serving a custodial sentence for the offence of murder. The defendant was tried in early 2000 for the murder of Paul Harris, and found guilty by a jury. He was subsequently sentenced by Bell J to a term of 18 years imprisonment, commencing on 20 June 1998. A non-parole period of 13 years and 6 months was specified: R v Pieter Egbert Helmhout & Anor [2000] NSWSC 651.

4. [4]

   The defendant was released to parole after serving the minimum term, but parole was revoked on 8 January 2013 following a number of breaches. He was released to parole for a second time on 19 September 2014, but parole was again revoked in early February 2015 after a further breach.

5. [5]

   With the total term close to expiration, the defendant was released to parole for a third time on 27 May 2015. The sentence expired on 19 June 2016. Presently, only the interim supervision order provides a basis for the defendant to be monitored and supervised.

6. [6]

   The State argues that the defendant poses an unacceptably high risk of committing further serious offences of violence and that he should be made subject to an extended supervision order (“ESO”) for three years.

7. [7]

   The defendant submits that he is no longer a high risk violent offender and that the Court should not make an ESO against him.

8. [8]

   The Act provides for the making of an extended supervision order for a “high risk violent offender”, whose custodial sentence has expired, or is about to expire, consistent with the purpose of the legislation, as set out at s 3 of the Act.

9. [9]

   The defendant does not dispute that he is a violent offender, in that he is a person over the age of 18 years who has been imprisoned following his conviction for a serious violence offence, that offence being murder. It is conceded that the statutory requirements set out in s 6 of the Act have been met.

10. [10]

    Division 2 of Part 1A of the Act provides for the making of an extended supervision order in relation to an individual who is a “high risk violent offender”. Whether the defendant is such a person within the meaning of s 5E is the principle dispute between the parties.

11. [11]

    The legislative framework and legal principles which govern applications of this nature have been discussed at length in a number of decisions: see, for example, Attorney General for the State of NSW v Tillman [2007] NSWCA 119; Attorney General for the State of NSW v Hayter [2007] NSWSC 983; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118; and Lynn v State of New South Wales [2016] NSWCA 57. It is not proposed to restate the principles here.

The Defendant’s Criminal History

1. [12]

   The basis of the State’s application is the defendant’s history of committing violent crime.

2. [13]

   Born in 1960, the defendant first appeared before the criminal courts at the age of 17 for an offence of malicious injury to property, and dishonesty offences. Prior to turning 18 the defendant was again before the Children’s Court in Canberra for an offence of assault male person. Within weeks, and having reached legal adulthood, he was before the Court of Petty Sessions in Canberra for assault occasioning actual bodily harm.

3. [14]

   The defendant was regularly before the Court of Petty Sessions in Canberra in the late nineteen seventies and into the mid nineteen eighties for criminal conduct, generally alcohol related. Offences in the latter part of the nineteen eighties and early nineteen nineties in New South Wales, Queensland, and the Northern Territory followed before the defendant was extradited from New South Wales to the Northern Territory to face charges. He was ultimately convicted of accessory after the fact to manslaughter and, in September 1993, a 2 year good behaviour bond was imposed upon him.

4. [15]

   In August 1995 the defendant beat a man to death by repeatedly striking him to the head with a heavy bag, supposedly because of some unwanted sexual advance. There were 23 separate sites of injury to the victim, who was left grievously injured and with his legs tied. The defendant, who had been drinking heavily at the time of the attack, was subsequently convicted of an offence described as “Dangerous Act Causing Death” and sentenced to imprisonment for 2 years and 6 months, with a non-parole period of 15 months specified.

5. [16]

   On returning to this State, his regular offending continued, with appearances before the criminal courts for drug, firearms, and dishonesty offences amongst the convictions recorded against him.

6. [17]

   In June 1998 the defendant was sentenced for the index offence of murder, a crime committed by the defendant and his younger brother on 20 June 1998. The murder of Paul Harris, who had been a friend, followed a session of heavy drinking and cannabis use during a wake held to mark the death and burial of the defendant’s brother. There appears to have been no real motive for the killing: Mr Harris had irritated Pieter Helmhout by talking too much and mentioning his late brother’s name in a way regarded by the brothers as insensitive, and had been assaulted by Pieter Helmhout. The assault continued intermittently, with the defendant joining in at some point. Mr Harris died after both brothers joined their efforts against him, and strangled him using two makeshift ligatures. His body was subjected to various degrading acts, before being dumped in bushland.

7. [18]

   Of the defendant’s participation in the crime, Bell J said (at [25]):

8. [19]

   As to the defendant’s prospects for the future, her Honour noted the following (at [57]):

9. [20]

   An appeal to the Court of Criminal Appeal against conviction was dismissed: Mark Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257.

10. [21]

    The defendant was released to parole in December 2011 but served a portion of what would ordinarily have been parole upon its revocation, as noted above at [4] – [5].

11. [22]

    On his first release to parole on 19 December 2011 the defendant was assessed by the Serious Offenders Review Council as being at “medium/low risk of general and violent offending”. His first parole order was revoked due to breaches of conditions recorded as:

12. [23]

    Urinalysis administered to the defendant whilst on parole had demonstrated drug use and there were reports of intimidating and aggressive conduct directed towards Corrections staff responsible for his supervision.

13. [24]

    The defendant considered the breach action to be the result of a misunderstanding between him and a psychologist and, after his return to custody, he wrote a letter of apology to the psychologist.

14. [25]

    He undertook and completed a number of courses in prison, such as the Health Survival Program and a Work Readiness Program.

15. [26]

    The defendant was again granted parole in September 2014 but was regarded as demonstrating poor compliance. He continued to use prohibited drugs despite undertaking a rehabilitative program, and parole was revoked in February 2015. A further parole order in May 2015 imposed a number of additional conditions including electronic monitoring.

16. [27]

    Whilst in custody serving the sentence imposed upon him by Bell J the defendant incurred a number of institutional violations, for drug related breaches, fighting, or failing to comply with correctional centre routine. The last such breach, for possessing or creating prohibited goods, occurred on 16 July 2013.

17. [28]

    On his third release to parole the defendant was supervised by staff of the Community Corrections Office at Nowra. He was required under the conditions of parole to reside at Oolong House in Nowra, and undertake a residential rehabilitation course offered there. The program consists of 16 weeks full-time treatment. The offender successfully completed the program, and there was evidence before the Court from Oolong House which spoke positively of the defendant’s engagement with the program, and other participants.

18. [29]

    A team leader at Oolong House described the defendant as “an exemplary client” who was a “great role model and leader within the program” (Letter of Tanya Bloxsome, pg 1). After the defendant completed the residential program he worked at Oolong House as a volunteer, supervising group activities, facilitating meetings of Alcoholics Anonymous, and driving residents of the program to appointments elsewhere.

19. [30]

    The defendant moved from his accommodation at Oolong House to a two bedroom dwelling leased from Housing NSW. His partner joined him initially at weekends, and now resides with the defendant permanently.

20. [31]

    The defendant was fitted with an electronic monitoring device on release to parole and has been obliged to provide his supervisors with fortnightly movement schedules. He has been generally compliant with the requirements placed upon him pursuant to parole and the interim supervision order.

21. [32]

    He has participated in regular counselling with a psychologist to address “…mood management, problem solving, focus upon the future and reframing thoughts to reduce negative outcome” (Affidavit of Brett Cousley, [24]). Urinalysis has produced results negative for illicit drugs, and home visits by Corrections staff have not revealed any difficulties.

22. [33]

    Notes maintained by Corrections staff and recorded on the Department’s Offender Integrated Management System (“OIMS”) suggest that the defendant has an “ongoing commitment to abstinence” of both drugs and alcohol.

23. [34]

    Whilst the defendant is described as being opposed to electronic monitoring, his supervisor regards it as having been beneficial to him in reducing impulsivity and a chaotic lifestyle. Whilst he is noted as having “gone off schedule” on some limited occasions over 13 months of electronic monitoring, the defendant has been sufficiently compliant with the requirements of scheduling and monitoring as to progress to “stage two”, permitting him more freedom of movement and greater personal control of his activities and whereabouts (Affidavit of Brett Cousley, [29]).

24. [35]

    The speed of transition from the most restrictive monitoring to the least restrictive monitoring appears to be dictated at least in part by the application of standard Corrections policy, rather than necessarily by reference exclusively to an individual’s personal performance. There is no suggestion in the evidence that the defendant’s performance has been other than satisfactory (Evidence of Debbie Thomson, 26 May 2016, T7 – 8).

25. [36]

    Overall, the defendant appears to have conducted himself in a law-abiding manner during the period of fourteen or so months that he has spent in the community subject to either parole or the interim order. His behaviour to date is very much a positive feature of his case.

Psychiatric and Risk Assessments

1. [37]

   The defendant reported coming from a close family and spent his childhood, which he described as “good”, in Canberra, Papua New Guinea and Brisbane (Report of Dr O’Dea, [9]). Both his parents have passed away. His father died of a heart attack in 1981 and his mother, an Aboriginal woman from Western Australia, in 2008. He has two brothers, one elder and one younger, with another brother having passed away from a drug overdose 18 years ago.

2. [38]

   The defendant was, in his own words, an “average student” and was expelled from one of the high schools he attended in Canberra. He enjoyed sports, such as football, hockey and swimming. He left school in Year 10, and went on to complete an apprenticeship as a mechanic. He then moved between the Northern Territory, working on prawn trawlers, and Canberra for a number of years, between 1988 and 1998.

3. [39]

   The defendant has had a number of serious relationships. He has four children from two previous relationships, ranging in age from 17 to 36 years.

4. [40]

   The defendant began drinking alcohol at a young age. The first time he was intoxicated was at the age of 11 or 12. The defendant told Dr O’Dea that while he rarely drank during adolescence, he started drinking excessively during his twenties, resulting in “blackouts” and “shakes in the morning” (Report of Dr O’Dea, [25]). He told Dr Furst that he was unable to hold down employment from the late nineteen eighties until the nineteen nineties because of his alcoholism, and was, on occasions, a “long-grasser” or homeless. He was abstinent from alcohol from 1995 until 1998.

5. [41]

   The defendant started smoking cannabis in his late teens. The defendant would use cannabis “…just to fit in” (Report of Dr O’Dea, [22]). However, by his mid-twenties, the defendant would smoke cannabis on a daily basis. The defendant has also tried speed, heroin and ‘magic mushrooms’, although he admits that the combination of cannabis and alcohol are “… the biggest problem” (Report of Dr O’Dea, [20]).

6. [42]

   He told Dr O’Dea that since he has been released on parole he has been “clean.” He reports that while his partner also previously abused drugs, she is now on a methadone program and that the house they reside in is “…alcohol and drug free” (Report of Dr Furst, pg 8).

7. [43]

   Dr O’Dea and Dr Furst both diagnosed the defendant as suffering from a longstanding and extensive substance use disorder. Dr O’Dea also noted a history of alcohol use disorder and cannabis use disorder. Both experts also diagnosed the defendant with a personality disorder with antisocial and narcissistic traits.

8. [44]

   Dr O’Dea and Dr Furst noted the significant progress made by the defendant whilst in custody, completing the Getting SMART and SMART Recovery Alcohol programs, and earning his forklift and traffic controller’s certificate. He has also been involved in art programs and worked as an Aboriginal artist. He told Dr O’Dea that he had “…a few dirty urines…for smoking dope” in his first eight years of custody, but later realised that he “…couldn’t afford to use…” if he wanted to continue to work as an artist (Report of Dr O’Dea, [46]).

9. [45]

   The report of Dr Parker also noted that:

10. [46]

    The defendant reported some previous issues with anxiety to Dr O’Dea, but otherwise did not report suffering from any symptoms of mood disorders, including anger, depression or suicidal thoughts. The defendant reported ongoing chronic back and hip pain following a motor vehicle accident in 1998, suffering a heart attack in 2001, and a stroke in 2010. He is on medication to manage his chronic pain and is currently receiving treatment for diabetes.

11. [47]

    The defendant expressed a positive outlook for his future. He indicated a wish to continue to abstain from alcohol and drugs, paint, reconnect with family, obtain qualifications in drug and alcohol counselling, and continue his volunteer work at Oolong House. He also attends Alcoholics Anonymous meetings and Narcotics Anonymous meetings at Oolong House weekly. He reported to Dr Furst that he had been “clean” since he was released on his current period of parole and that he intended to remain abstinent for his family and his own health. He told Dr Furst that he currently “walks around with his head held up high” and enjoys the respect he has earned from the Aboriginal elders and others in his community (Report of Dr Furst, pg 8).

12. [48]

    Despite these plans, Dr O’Dea noted that:

13. [49]

    Similarly, Dr Furst noted the defendant’s inconsistent, exculpatory statements regarding the index offence and other prior violence offences. Dr Furst opined:

14. [50]

    Dr Parker also noted that:

15. [51]

    Actuarial risk assessments of the defendant, such as the LSI-R, placed the defendant at a moderate or medium risk of violent re-offending. Dr Parker poisted that “…when he is violent, he is capable of extreme violence” (Report of Dr Parker, [6])

16. [52]

    Dr Furst also pointed to the unpredictability of the defendant’s offending, noting that the defendant’s criminal thinking could escalate quickly and catastrophically, particularly if the defendant is exposed to a sufficiently stressful situation, anti-social peers and/or an opportunity to consume alcohol or drugs.

17. [53]

    Dr O’Dea and Dr Furst each concluded that the defendant’s risk could be appropriately managed in the community, and that the proposed ESO conditions would be adequate to manage any risk posed by the defendant, although the experts differed on the appropriateness of electronic monitoring. Dr Furst posited that electronic monitoring was suitable given the defendant’s prior breaches of parole, while Dr O’Dea felt that electronic monitoring was not required in order to ensure successful ongoing abstinence.

Submissions of the Parties

1. [54]

   Placing reliance on the respective opinions of Drs O’Dea, Furst, and Parker that the defendant poses a significant risk (Dr O’Dea), or a moderate risk (Drs. Furst and Parker), of committing a serious violence offence in the future, the State argues that an extended supervision order of some years duration is necessary to manage the supposed unacceptable risk.

2. [55]

   The defendant points to his success in completing the residential drug and alcohol rehabilitation program and his compliance with conditional liberty over a 14 month period to submit that, whilst all risk is not mitigated, he does not pose an unacceptable risk to the community of the commission of offences of serious violence.

Consideration

1. [56]

   The Court’s power to order an offender’s subjection to ongoing supervision is found in s 9 of the Act. The section provides a number of matters to which the Court must have regard when determining whether to make such an order: s 9(3). I have considered all of the matters there referred to.

2. [57]

   The task of assessing whether to make an extended supervision order is an evaluative one “directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection”: Lynn v State of New South Wales at [61].

3. [58]

   The features relevant to the defendant’s situation most indicative of risk are the circumstances that applied to the three wrongful killings in which he has been involved, two of them directly, and the personality and substance abuse disorders which afflict him.

4. [59]

   The deaths for which the defendant has been personally responsible were impulsive crimes of great violence, committed in a context of alcohol and drug abuse, by an emotionally disordered individual. Those circumstances present a basis for ongoing concern. As Dr Parker observed:

5. [60]

   The defendant continues to exhibit traits consistent with an enduring personality disorder with antisocial and narcissistic features and, despite his commendable recent abstinence, to meet the criteria for a diagnosis of substance abuse disorder. Those disorders and his history of violent responses to relatively trivial conflict points to an ongoing risk of violent offending, a risk that may well be present until old age and infirmity diminish or extinguish it.

6. [61]

   Dr O’Dea concluded:

7. [62]

   The doctor considered abstinence from alcohol and illicit drugs as crucial in the mitigation of that risk, and believed that the goal of abstinence would most likely be achieved by the defendant’s ongoing engagement with structured and supervised alcohol and drug counselling and rehabilitation. He thought medical management including psychiatric treatment of the defendant’s substance abuse disorder was indicated.

8. [63]

   Dr Furst was broadly in agreement with Dr O’Dea, concluding that the defendant’s history of the commission of violent offences coupled with the destabilising role that alcohol has played in his life indicates that he remains at risk of committing further acts of violence. Dr Furst thought that the defendant’s substance abuse disorder, particularly his dependence upon alcohol, “is probably his most significant risk factor for future violent offending” (Report of Dr Furst, pg 17).

9. [64]

   He opined:

10. [65]

    Such risks remain despite the defendant’s steady progress since being released from custody in May 2015. It is perhaps significant that, in contrast to his two earlier unsuccessful periods of liberty in the community prior to the revocation of parole, the defendant’s most recent period of freedom has been more intensely supervised and monitored than was previously the case. The additional layer of support and supervision available to the defendant since May 2015 may well have been the feature that assisted him to break the pattern of speedy relapse into drug and alcohol abuse and a return to criminality, as demonstrated during earlier periods of liberty.

11. [66]

    The weight of expert evidence is that, for the defendant’s positive progress to continue, support and supervision should be maintained, with particular attention to drug and alcohol counselling that focuses on relapse prevention.

12. [67]

    Without that support and supervision there is a considerable risk that, despite his encouraging progress and asserted determination to remain drug and alcohol free for the future, the defendant may slip back into drinking and using prohibited drugs. Were he to do so, the risk of him committing another act of extreme violence when intoxicated is clear, and could readily manifest. I regard it as an unacceptable risk.

13. [68]

    For that reason, I have concluded that the State’s application should be granted, and the defendant made subject to an extended supervision order.

14. [69]

    The period of supervision has also to be determined. Originally the State sought an order of five years duration. The Further Amended Summons filed by the State at the final hearing seeks an order of three years duration.

15. [70]

    In my view, an order as sought is adequate to mitigate the unacceptable risk that remains to date. The defendant has already been at liberty since May 2015 without adverse incident. His conduct has been such that electronic monitoring is not required in the long term. There is a sound basis upon which to conclude that, if given a further period of supervision and support, the defendant will be enabled to make the transition to a permanently law-abiding lifestyle, particularly if he continues with alcohol and drug rehabilitation, and continues in his ambition to paint and exhibit his work.

16. [71]

    In that way, the twofold objectives of the Act may be met.

17. [72]

    I propose to grant prayer 3 of the Further Amended Summons.

    1. (1)

       Pursuant to ss 5F and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant is made subject to a high risk violent offender extended supervision order for a period of three years from today; and

    2. (2)

       Pursuant to s 11 of the Act, the defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in the Schedule annexed to these orders.