State of New South Wales v CT (No 2)

By notice of motion filed on 7 November 2019, the defendant sought orders varying the conditions imposed in respect of the extended supervision order (ESO) made on 21 June 2019. My reasons for making the ESO and imposing the original conditions are set out in my judgment of 5 July 2019: State of New South Wales v CT (Final) [2019] NSWSC 847.

On 22 November 2019, I made the following order varying the conditions imposed in respect of the ESO as follows:

A copy of the schedule of conditions as varied is set out in the appendix to these reasons.

At the time of making that order, I said that I would publish my reasons in due course. These are my reasons.

The background to the making of the order on 22 November 2019 is set out in some detail in State of New South Wales v CT (Final) [2019] NSWSC 847. Those reasons for judgment should be read together with these reasons. I have relied upon, but have not generally repeated here, what is contained in those earlier reasons.

On 21 June 2019, my orders included the following:

The continuing detention order (CDO) referred to in order 2 expired on 23 November 2019.

The making of the ESO was not in issue at the hearing on 22 November 2019 nor was the 3 year term of that order. The only issue was whether the conditions previously imposed on 21 June 2019 should be varied.

In my reasons of 5 July 2019 at [119], I said the following concerning the conditions to be imposed under the ESO:

As noted above, an order under s 13 of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) for variation of the conditions has now made by the notice of motion of 7 November 2019.

The conditions that may be imposed in respect of an ESO are governed by s11 of the CHRO Act, which is in following terms:

There was no dispute between the parties as to the relevant principles to be applied. It is sufficient to note the following.

Conditions ought not be imposed under an ESO that are unjustifiably onerous or simply punitive, but it may be appropriate to impose conditions that do not themselves directly relate to an offender's risk but are appropriate nonetheless because they promote the efficacy of an order containing other conditions which do: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [100]. In determining the conditions that are appropriate, I also take into account the comments of Adams J in State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]:

Counsel for both parties made useful submissions concerning the appropriate conditions that would now be appropriate in respect of the ESO in the light of the most recent evidence.

At this point it is appropriate to consider the evidence adduced on the variation application. It should be noted that the earlier evidence and findings concerning the defendant remain relevant and are set out in my earlier reasons, [2019] NSWSC 847 at [26] to [110].

The defendant relied upon the affidavit of Ms Hayley Le of 11 November 2019 which:

The State relied upon the following affidavits:

In addition, there were before the Court updated reports from the psychiatrists who had previously examined the defendant and provided reports under ss 7(4) and 15(4) of the CHRO Act:

Most, if not all, of the evidence adduced at the hearing on 21 November 2019 was not the subject of significant dispute. It is sufficient to observe that I accept that evidence both as to the opinions expressed by the experts and as to the factual matters referred to.

When the matter was heard in June 2019, the evidence established that there was no suitable accommodation for which the defendant would be eligible, other than the Forensic Hospital or some similar psychiatric facility, which could provide the stable and secure treatment and care which the defendant currently required. [1] By the time of the hearing in November 2019, the evidence disclosed that the situation had changed. Because of the improvement in the defendant’s condition with treatment, among other things, he had been approved for accommodation at the ISC from the date of the expiry of his CDO on 23 November 2019.

In his report of July 2019, the defendant’s treating psychiatrist, Dr White, was of the view that the defendant could be diagnosed with schizophrenia. This was complicated by substance use disorder arising out of his use of cannabis and methamphetamines. In his view, the ongoing symptoms in a controlled environment strongly suggested that the defendant had schizophrenia rather than a substance induced psychotic illness. If accommodation could be found where the defendant could live with some level of support, it was Dr White’s opinion that a community treatment order (CTO) and an ESO would lead to the risk he posed being manageable in that setting. Dr White did not support the defendant’s admission to the Forensic Hospital at that time.

Dr White also provided a report of 16 October 2019 concerning the defendant’s current presentation, recent progress and current treatment. Dr White confirmed the diagnosis of schizophrenia which had probably been undiagnosed for many years. It was noted that the defendant had had a period of over six months where he had accepted treatment and had clearly responded to that treatment. There had been no incidents of irritability, aggression, non-compliance or behavioural problems in that entire six months. From a psychiatric perspective, Dr White could see no reason why the defendant would not be able to be managed in the community setting. It was also said that his lack of insight was not uncommon in schizophrenia and that it should be manageable under the conditions of the CTO. It was observed that the defendant had residual symptoms but with ongoing compliance with treatment and abstinence from drugs there was no reason to believe that his condition would deteriorate. Dr White emphasised that abstinence from drugs would be a condition of his CTO and his ESO should reinforce that need to take his medication and be abstinent.

Dr Ellis, in his further report of 20 November 2019, noted that the information then available did not significantly alter his earlier opinion regarding the defendant’s risk or management. Nonetheless, Dr Ellis noted that it was pleasing that accommodation had been found for the defendant at the ISC. Dr Ellis was of the opinion that although the defendant had not gained insight into his mental illness, and presumably not into the motivations for his previous offending, this had not precluded his cooperation with treatment. It was also noted that he had displayed behavioural stability and no concerning attitudes regarding violence or co-operation with supervision. In relation to the conditions to be imposed as part of an ESO, Dr Ellis noted as follows:

Dr Martin, in his report of 18 November 2019, noted that his overall opinion regarding diagnosis and risk of violence had not changed. He observed, however, that the defendant’s mental state appeared to have substantially improved with antipsychotic treatment in a controlled environment and he was of the view that Dr White’s opinion regarding presentation, diagnosis, treatment and progress should be accepted.

Dr Martin was of the view that the defendant required ongoing assertive treatment and monitoring in a stable environment and his management plan should include close supervision and monitoring of any substance use. In Dr Martin’s view, the conditions of a CTO would not provide enough support and monitoring to adequately manage the risk issues. As to the proposed conditions, Dr Martin said:

In her affidavit of 18 November 2019 Ms Tulloh referred to her previous risk assessment report and emphasised the need for the defendant to remain abstinent from illicit substances and alcohol. She supported conditions such as not possessing or using alcohol, submitting to alcohol and drug testing, not entering licensed premises and not associating with persons consuming drugs or alcohol in order to promote effective risk management and monitoring. She also identified the need for any supervising officer to advise a new intimate partner about the defendant’s criminal history in light of the defendant’s previous violence towards a partner. Also in light of previous offending, Ms Tulloh recommended that the defendant should be monitored regularly for access to and possession of weapons. Finally, in relation to electronic monitoring, Ms Tulloh said that:

Ms Grabham’s evidence mainly concerned the management of ESO conditions by Corrective Services. As to electronic monitoring it was noted that this is usually subject to the supervising officer’s discretion and generally the discretion would be exercised in such a way that supervised persons are subject to stricter monitoring and more restrictive requirements at the beginning of the period during which an ESO applied but these are relaxed over time, depending on the supervised person demonstrating commitment to rehabilitation and ongoing compliance.

As to whether a condition for a schedule of movements should be incorporated in the defendant’s conditions, Ms Grabham said that it was unusual and also impractical for there to be electronic monitoring without a schedule of movements. This was said to be because these conditions generally worked together to foster and monitor compliance with the order. She also gave evidence of the four stages of electronic monitoring in which stage 1 is the initial monitoring stage and is most restrictive and stage 4 is the most advanced stage and is least restrictive. She also noted that in relation to the four stages of monitoring any requirement to provide notification of movements in advance can be flexibly applied. It was also said:

Ms Grabham also gave evidence that the electronic monitoring and the provision of a schedule of movements work together allowing monitoring staff to be alerted if the supervised person deviated from the schedule. The requirement to provide notification of movements in advance can be flexibly applied by the supervised person contacting the supervising officer in relation to proposed late changes and for adjustments to be made to the schedule. She also noted that a schedule of movements would be important for the defendant as it can help to promote progress and structure as well as assisting with the development of planning and self-management skills by maintaining structure and providing purpose.

Ms Grabham also gave evidence concerning use and implementation of conditions concerning accommodation, finance drugs and alcohol, non-association, search and seizure, personal details and appearance. In relation to the conditions concerning access to the Internet and other electronic communications, Ms Grabham noted the relevance of these matters to the previous offending in relation to his domestic partner and contacting her as well as his previous use of the Internet to purchase cannabis oil illegally.

Ms Grabham’s cross-examination focused upon “dry scheduling”. This refers to a supervised person, who is being electronically monitored, providing a summary of anticipated movements including the locations, purpose and means of travel but without times being specified instead of a schedule of movements (which includes detailed timings). Ms Grabham accepted that dry scheduling allowed some assessment of the person’s risk but not as fully as with a schedule of movements. She accepted that if the defendant were subject to an exclusion zone, for example around Albury consistent with an AVO, that could be monitored in real time with alerts. A difficulty identified by Ms Grabham was that any movement towards the exclusion zone would not be able to be monitored. An alert would only be raised when the exclusion zone was breached.

While Ms Grabham accepted that a summary of anticipated movements would provide some benefit, it would not necessarily achieve what was required in assisting the defendant to reintegrate into the community. It was also confirmed that the level of detail required in a movement schedule depended on the supervising officers assessment of what was required taking into account the supervised person’s background.

Ms Grabham gave evidence that a large number of persons who were the subject of an ESO and electronic monitoring had passed beyond stage 1 to stages 2 and 3 while a smaller number had moved on to stage 4. Based on a five-year ESO, progression from stage to stage had been at 12-monthly intervals but more recently she had noted quicker progression. Finally, it was observed, in effect, that the level of leniency depends on the progress being made.

Before and during the hearing, counsel for both parties adopted a very sensible approach of seeking common ground in relation to the conditions where possible and focusing evidence and argument on areas of real dispute. As a result, a measure of agreement was reached in relation to the terms of the appropriate conditions and as to the deletion of conditions that were not considered necessary in the circumstances. The bases of agreement were elucidated in submissions and discussions and I was satisfied that, where agreement was reached, the resulting conditions were appropriate under s 11 of the CHRO Act and it was not necessary to include the conditions that were proposed to be deleted. In these circumstances, these reasons focus on the conditions in relation to which there was no agreement.

The schedule of conditions imposed is set out in the appendix to these reasons and I shall refer to the conditions about which there was no agreement by their numbers in the schedule.

Schedule of movements, conditions 5, 6 and 7: The defendant was prepared to accept electronic monitoring if he was subject to “dry scheduling” with the summary being able to be varied on 3 hours’ notice rather than being required to provide a schedule of movements variable only on 24 hours’ notice. He also sought a condition that:

The State sought conditions that would require the defendant to provide a weekly schedule of movements, variable on 24 hours’ notice or such other time as the Departmental Supervising Officer (DSO) directed. It also sought a condition that there be no deviation except in an emergency.

Given the defendant’s circumstances and the fact that he was to be released on 23 November 2019 and this would be his initial experience of supervision under the conditions of his ESO, it appeared to me that it would be more appropriate to give the DSO the discretion to require a schedule of movements (with specified timings), noting, as Ms Grabham explained, that the stringency of this regime could be relaxed over time, if the defendant demonstrated his ability to plan, organise his time and comply with his schedule and the other conditions of his order. I accept that the benefits of having to provide a schedule of movements include those described by Ms Grabham. These would be beneficial not only in enhancing the security of the public but also for the rehabilitation of the defendant and his eventual reintegration into the community. In effect, “dry scheduling” could be introduced by a DSO, if it was thought that the defendant had made sufficient progress to justify that step and it was otherwise appropriate, having regard to the safety of the community and individuals and the interests of the defendant.

In addition, it appeared to me that requiring electronic monitoring to be supported by the provision of a schedule of movements, to the extent determined by the DSO, also appropriately reflected Dr Ellis’s and Dr Martin’s opinions as to the need for close supervision and monitoring of the defendant at this stage.

Nonetheless, in order to emphasise the flexibility inherent in the conditions, I amended the State’s proposed condition 5 so that it read “If and as directed by his DSO…”. I also included an option for a DSO to approve a lesser time in conditions 5 and 6.

As to deviation and condition 7, I did not accept that the defendant should be able effectively to deviate from his schedule and merely inform his DSO “as soon as is reasonably practicable afterwards”. This could significantly undermine the monitoring of the defendant. Notwithstanding this, I did alter the State’s proposed condition to permit deviation with the approval of the DSO, which could, for example, be obtained by mobile telephone immediately before the proposed deviation.

With the amendments that I made to the State’s proposals, I believed that conditions 5, 6 and 7 served adequately to protect the safety of the community while at the same time encouraging the rehabilitation of the defendant.

Curfew, condition 10: As the defendant will be living at the ISC, it was submitted that their curfew conditions would be sufficient and the State’s proposed curfew timings were inappropriate.

Since the ESO might extend to times when the defendant was not required to live at the ISC, it appeared to me that a curfew condition was generally appropriate subject to:

Accordingly, I amended condition 10 to reflect those requirements.

Visitors, condition 13: Once again in order to address the defendant’s contention that the State’s proposed condition 13 was unnecessarily restrictive, I included the word “or” between “generally” and “for” so that the DSO would have the flexibility to permit visits generally or for nominated individuals or in respect of specific occasions. Thus, if the defendant’s progress and compliance warranted visitors being allowed, this could be implemented in an appropriate manner.

Access to alcohol, conditions 20, 23 and 27: The defendant contended that he should be allowed to use alcohol in moderation and should be entitled to enter licensed premises and associate with persons consuming alcohol. Given the role that binge drinking and alcohol have played in his past and the opinions of Drs Ellis and Martin to the effect that it is essential for his wellbeing and the safety of the community that the defendant not consume alcohol or attend places where alcohol use is prominent, I do not accept the defendant’s submission. Nonetheless, to ensure that there is some flexibility in the conditions, which are to apply for 3 years, I have included in conditions 20, 23 and 27 the ability of the DSO to approve the defendant engaging in the alcohol related activities, if that otherwise became appropriate.

Access to the internet and other electronic communications, conditions 32 to 36: The defendant contended that conditions 32 to 36 proposed by the State were unnecessary and that much simpler conditions dealing with this subject matter should be imposed. The simpler proposed conditions were to the effect that:

As I understood it, there was no objection in principle to conditions dealing with access to the internet and other electronic communications and I accept that they are, in general terms, appropriate in the present case. The question is whether the simpler form proposed by the defendant or the more detailed form proposed by the State should be adopted.

One difficulty with the defendant’s proposal is that, while it is simpler, it lacks clarity as to: when and in relation to which specific devices disclosure is to be made; how and to what extent the devices may be inspected; whether and how access to, and information concerning, the devices by the DSO may be obtained; and, whether the defendant is required to comply with the DSO’s directions in relation to his use of any device. Although the State’s proposed conditions are more detailed, I am of the view that the details provide required clarity in those respects.

Another difficulty is that the defendant’s proposal deals specifically with cannabis oil and illicit substances but it does not deal with other potentially concerning aspects of internet use, including the defendant contacting his former partner in breach of any AVO or otherwise or entering other intimate relationships by means of the internet. Nor was it clear under the defendant’s proposal that the DSO would have access so as to permit monitoring of internet use that might indicate any deterioration in, or other issues with, the defendant’s mental health.

In the circumstances, I accepted that the form proposed by the State in its conditions 32 to 36 was preferable to that proposed by the defendant in this regard.

For all of these reasons, on 22 November 2019, I made the following order that: