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

1. [1]

   The State of NSW seeks final orders against the defendant under the Crimes (High Risk Offenders) Act 2006 (NSW) Act (“the Act”). The defendant has been in the community under an interim supervision order (ISO) with conditions since midnight 25 November 2021. The last extension of those orders that is available under the Act expires on 24 February 2022.

2. [2]

   The State seeks an order in its Amended Summons filed in Court on 16 February 2022 that the defendant be made subject to an extended supervision order (ESO) for a period of 4 years commencing at midnight on 24 February 2022.

3. [3]

   The defendant contended that the evidence does not justify an ESO being made at all and the alternative, it should be limited to 1 year. There was also argument about the form of and need for some of the proposed conditions.

4. [4]

   For the reasons that follow, I have decided that an ESO of 18 months length should be made on the conditions set out in the Schedule to this judgment.

The preliminary hearing and interim orders

1. [5]

   The Summons filed on 23 July 2021 initially sought a 5 year ESO. Mr O’Hara’s term of imprisonment for an offence of causing grievous bodily harm with intent to cause grievous bodily harm was to expire on 25 November 2021. Beech-Jones CJ at CL made an interim order for supervision with a small adjustment to one of the proposed conditions. He also made orders under s 7(4) of the Act for the defendant to be examined and reported upon by two experts.

2. [6]

   This was followed by extension of the ISO by Wright J on 16 December 2021 and then Garling J on 18 January 2022.

3. [7]

   At the final hearing on 16 February 2022, I extended the ISO to expire at midnight on 24 February 2022.

Evidence at the final hearing

1. [8]

   The plaintiff relied upon the affidavits of Ms Murty solicitor dated 23 July 2021, 14 October 2021, 28 January 2022 and 14 February 2022 together with two volumes of exhibited material contained in Exhibit JM1. An affidavit of Aftab Khan affirmed 25 January 2022 was read. That affidavit set out the rationale, practicalities and operational aspects of electronic monitoring. An affidavit of Kellie Grabham affirmed 28 January 2022 set out the role of the ESO team, the purpose in that context of electronic monitoring and other matters regarding implementation of an ESO, as well as commentary on the role and usefulness of the proposed suite of conditions and their inter-relationship.

2. [9]

   The defendant relied upon an affidavit of Michelle Macdonald solicitor affirmed 11 February 2022 which appended recent case management notes and a Programs Services Participation Report regarding the defendant.

3. [10]

   Pursuant to the requirements of the Act, the independent expert assessments of Dr White and Dr Eagle were provided directly to the Court. To that extent they are not evidence of one party or the other, but essential objective expert evidence provided for the assistance of the Court.

4. [11]

   Dr Eagle was cross-examined by counsel for the defendant for approximately one hour with a forensic focus on the extent to which, if at all, the risk management assessment tools utilised by Dr Eagle, (and others), have any real legitimacy in assessing the level of risk presented to the community by the defendant.

5. [12]

   Dr White psychologist, and Mr Ardasinski psychologist were required for cross-examination, but after issues were canvassed with Dr Eagle, a decision was communicated that they were no longer required.

The legislative scheme and principles

1. [13]

   The primary object of the Act is stated in s 3(1):

2. [14]

   A secondary object of the Act is to encourage rehabilitation of offenders. This is a feature of the legislation that has some importance to the issues debated at final hearing as a question mark was raised by the defendant over the extent to which conditions proposed by the State may be counterproductive to that object and are not conditions that have any real role in potentially reducing the defendant’s risk of violent offending.

3. [15]

   At a final hearing for an ESO, the Court must first determine whether it is satisfied to a high degree of probability that Mr O’Hara poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).

4. [16]

   The making of a ESO requires a state of satisfaction “to a high degree of probability”. This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).

5. [17]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, at [58], per Beazley P.

6. [18]

   The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk” (at [44] per Beazley P), however consideration of an offender’s circumstances, including the offender’s interest in liberty and privacy may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.

7. [19]

   In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that “unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

Mandatory considerations

1. [20]

   The Court is required to have regard to certain mandatory considerations set out in s 9(3) of the Act which include, relevantly to Mr O’Hara, reports from court-appointed experts - here Dr Eagle and Dr White, assessments prepared by any qualified psychiatrist, psychologist or registered medical practitioner addressing the likelihood of the offender committing a further serious offence; the results of any statistical or other assessment on that issue; any report by Corrective Services NSW as to the extent to which Mr O’Hara can reasonably and practicably be managed in the community; any treatment or rehabilitation programs participated in or offered; options available to the offender that might reduce the likelihood of him reoffending; the likelihood that he would comply with the obligations of an ESO; his criminal history and the views of the sentencing court at the time any sentences of imprisonment were imposed and any other information available as to the likelihood that the offender will commit a further serious offence.

Criminal history, pattern of offending and views of the sentencing court at the time of sentencing

1. [21]

   I adopt the summary of the offending history (which included the index offending) set out in State of New South Wales v O’Hara (Preliminary) [2021] NSWSC 1484 at [7]-[18] and [20]-[21]:

2. [22]

   When sentencing Mr O’Hara for murder in 1996, Justice Sully referred to Mr O’Hara’s genuine remorse, found that he did not intend to kill the victim and that it was a “robbery gone wrong” and noted that Mr O’Hara had entered an early guilty plea, also reflective of remorse.

3. [23]

   In October 2012, Judge Charteris SC DCJ sentenced Mr O’Hara for the reckless wounding on 8 November 2010 and the break and enters in January 2011. He made positive comments about Mr O’Hara having good prospects for rehabilitation and that his life to date had been a difficult one. He noted that Mr O’Hara seemed to be a genuine man who had the potential to live in the community and obtain employment.

4. [24]

   When sentencing Mr O’Hara in July 2013 for grievous bodily harm with intent to cause grievous bodily harm, (the attack with the sandwich press in custody) Coorey DCJ found extreme provocation in that the victim had threatened Mr O’Hara, called him a “dog”, and as a world champion kickboxer, had the potential to kill Mr O’Hara.

Court appointed experts

1. [25]

   The Court obtains substantial assistance from recently conducted, thorough and independent assessments by appropriately qualified psychiatrists and psychologists. The need for these assessments and the centrality of their role is enshrined in the Act as they must be obtained if a final order is to be considered. Given the Court has to assess the current risk presented by a defendant, old and differently directed expert assessments would often need to be given less weight than recent assessments.

2. [26]

   Issue was taken by counsel for the defendant about the validity of risk assessment tools used by Dr Eagle, Dr White and Mr Ardasinski referred to in their reports, in particular, the HCR-20 Version 3. It was submitted that:

3. [27]

   On that basis, objection was taken to large tracts of the reports of Dr White, Dr Eagle and Mr Ardasinski. I rejected the argument that there needed to be extraneous evidence about the risk assessment tools to make those parts of the reports using those tools admissible. It is no different to the application of any other medical knowledge and literature used to underpin an expert opinion. As argued by counsel for the plaintiff, an x-ray report is not invalidated by a radiologist’s inability to describe how the x-ray machine was built and it did not undermine that expert’s opinion on what the x-ray shows.

4. [28]

   There is also no valid basis to exclude the material under s 135 of the Evidence Act 1995 (NSW) as it is not unfairly prejudicial to the defendant and the reports have strong probative value on the issues for decision under the Act, even though they are only a part of the mandatory material to consider.

5. [29]

   What I needed to know about the assessment tools and their role and limitations was addressed within the experts’ reports. Dr Eagle’s structured professional judgment approach was further explained by her in her evidence:

6. [30]

   Further elucidation on the limitations associated with a “high risk” categorisation utilising the HCR-20 Version 3 risk assessment tool was obtained by counsel for the defendant during cross-examination of Dr Eagle:

7. [31]

   This was a specific illustration in my view of the type of limitations around such tools, candidly highlighted by Dr Eagle at the beginning and the end of her report which I deal with below. It should also be borne in mind that the risk assessment tools are not directed to the risk of committing a “serious violence offence” but just “violent offending” more generally, and so the conclusions reached by any expert by application of that tool does not purport at any level to pre-determine the Court’s conclusion on the issue of the risk to which the legislations is directed.

8. [32]

   Dr Eagle acknowledged in her January 2022 report the limits of the risk assessment process required to be undertaken:

9. [33]

   Dr Eagle outlined her diagnosis of Mr O’Hara:

10. [34]

    Under the heading “Clinical Factors”, Dr Eagle made reference to currently present positive and negative matters:

11. [35]

    With respect to fluctuating or dynamic risk factors, Dr Eagle observed:

12. [36]

    Dr Eagle concluded that Mr O’Hara is in a category of offenders at a high risk of violent reoffending with predominant factors being “entrenched antisocial cognitions regarding the world and others”, his emotional instability and a susceptibility to substance abuse and peer influence. She noted a significantly elevated risk of reoffending without appropriate support and interventions.

13. [37]

    Dr Eagle concluded that it was “likely to take at least 4 years of supervision and support for Mr O’Hara to address his risk factors for offending and sustain his lifestyle, allowing for a gradual withdrawal of supervision”.

14. [38]

    Dr White is a psychologist who carried out a s 7(4) assessment of the defendant in January 2022.

15. [39]

    Under the heading “Mental Health”, Dr White took this history:

16. [40]

    Like Dr Eagle, Dr White pointed out the limitations in attempting, as a clinician, to accurately predict whether a person will reoffend:

17. [41]

    Dr White added:

18. [42]

    In addressing risk formulation, Dr White observed:

19. [43]

    These are similar concerns to those voiced by Dr Eagle in particular regarding “minimising his role in violent acts” and “externalising issues”.

20. [44]

    Dr White’s conclusions and recommendations are:

21. [45]

    Dr White referred to both 2 and 3 years as appropriate periods for supervision in her report but in a follow up email, prompted by an email from the plaintiff’s solicitor, she stated that she had concluded a period of 3 years supervision was appropriate.

Reports and assessments of other psychologists and/or psychiatrists or medical practitioners as to the likelihood of the defendant committing a further serious offence; reports of psychologists or others applying statistical or other risk assessments regarding persons with histories and characteristics similar to the offender

1. [46]

   Most of these assessments pre-date 2015 and so are of somewhat limited relevance to assessing the current state of risk. The relevance is that they refer to long term diagnoses made of antisocial personality disorder and trauma-related symptoms (or PTSD) leading to hypervigilance. The reports also contain the social history of Mr O’Hara. He has clearly had an unstable home environment as a child with domestic violence and abuse and an absence of positive role models.

2. [47]

   Mr Ardasinski and Ms Cieplucha concluded on their assessment in April 2021 that Mr O’Hara was in the category of high risk of reoffending, given, amongst other things, his long history of violence, but noting that his violence had reduced over the last 2 to 3 years (which is now 3 to 4 years given the assessment is almost a year old and there has been no other violence).

Corrective Services Risk Management Report(s) re management in the community

1. [48]

   Ms Grabham and Mr Glover’s 2021 report outlined a suite of ESO conditions and how those conditions would be capable of managing Mr O’Hara’s risk in the community. Ms Grabham’s affidavit explained the inter-relationship of monitoring conditions and their purpose and role in reducing risk.

Treatment and rehabilitation programs offered in custody and the defendant’s participation in those

1. [49]

   Mr O’Hara attended the EQUIPS Addiction and Aggression courses. He attended the (VOTP) Violent Offenders Therapeutic Program twice, but as pointed out by Mr Ardasinski, because of his “significant trauma background”, he was found to be unsuitable to complete VOTP.

2. [50]

   This is not Mr O’Hara’s fault.

3. [51]

   Mr Ardasinski noted individual psychological therapy would be more suitable, but that Mr O’Hara has not been provided with this in custody.

What is the likelihood that the offender will comply with the ESO obligations?

1. [52]

   Dr Eagle offered this view in her report:

2. [53]

   In my opinion Mr O’Hara has excellent potential to remain offence free and comply with the ESO conditions, but he needs the support and monitoring provided by an appropriately structured ESO to help him in that quest. To that extent the ESO I will impose serves the secondary purpose of the Act in encouraging rehabilitation of offenders.

What has been his compliance so far with prior ESO or parole?

1. [54]

   Mr O’Hara’s compliance with his ISO during close to 3 months in the community has been very good.

2. [55]

   Dr Eagle commented upon Mr O’Hara’s “apparent ability to tolerate initial stressors associated with his reintegration into the community and the comprehensive supervision regime…”. This is a significant positive consideration.

3. [56]

   Mr O’Hara has also reflected to his assessors that the structure provided by the ISO conditions has helped him and it was “not as bad” as he thought it would be. This shows a mature attitude that is a further positive matter to take into account.

Does the defendant pose an unacceptable risk of committing another serious violence offence if there is no ESO?

1. [57]

   The evidence tendered and that I have evaluated satisfies me to a high degree of probability that the defendant does pose an unacceptable risk of committing a serious violence offence if not kept under supervision under the order.

2. [58]

   Whilst so far any reintegration stressors confronted by Mr O’Hara on the ISO have been well-managed, the risk of sudden violent response to an actual or perceived threat has not evaporated. There are many years of entrenched behaviours and thought patterns that are yet to be treated, and this risk needs to be monitored and managed for a period in the community where interactions are less controlled than in custody.

3. [59]

   Mr O’Hara knows that he is the person who controls his responses to stressors and events, but the report writers have all referred to a lack of real insight into his triggers for violence. Judges who have sentenced him for violent offending have referred to his positive attitude, valid perception of threat related to some of his offending (and violent over-reactions in others) and his genuine remorse, but still there were incidents of violent offending well after these observations in 2016 and 2017 while in custody.

4. [60]

   I am satisfied Mr O’Hara is entirely genuine in his wish to “turn his life around” and he has made large strides towards that. The question is, does this comprise a sufficient consideration to cause me to decline to make an ESO at all, or simply to make it shorter and/or on less intrusive conditions?

Should an ESO be made?

1. [61]

   Mr O’Hara has spent nearly all of his adult life in custody. He has had a complex and traumatic upbringing which has left him with cognitive distortions around violence. He – to an extent understandably – has hypervigilance. A lot of his offending has its origins in that hypervigilance and his sudden violent responses to perceived (and actual) threats.

2. [62]

   I am satisfied that he has shown remorse for his past violent offending and a determined and positive approach to avoiding violence in his last few years in custody. There has been a marked reduction in offences in custody over the last five years.

3. [63]

   He is intelligent. He is optimistic that he can avoid trouble. As observed by Dr Eagle, he has a number of positive factors, namely strength of character, the fact that he is articulate and intelligent, and that he is in regular contact with his family and has their support.

4. [64]

   It is worth noting that Mr O’Hara attended Court for his hearing and throughout the day calmly observed, occasionally instructing his solicitor and counsel in an appropriate manner.

5. [65]

   The question as to whether to impose an ESO is a complex one, involving as it does a weighing and balancing of risk and unknowns, against incursions into the liberty of a person who has already served his or her sentence(s) for prior offending.

6. [66]

   This is aptly described by Gleeson JA said in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57at [148]-[149]:

7. [67]

   I have concluded that an ESO should be made, but because of the positive factors already exhibited by Mr O’Hara, that order should be significantly shorter in time than the length contended for by the plaintiff.

8. [68]

   I am satisfied that to do so serves both the safety of the community and promoting rehabilitation of the offender in providing for a focussed period to demonstrate his capacity to remain free from violent offending, but with the assistance of focused supervision and monitoring for that shorter period. Mr O’Hara would be well aware that the plaintiff can apply for a further order if there is a basis demonstrated for it to do so. Mr O’Hara has the power over that prospect, depending on his compliance and engagement in the ESO.

Conditions and length of the ESO

1. [69]

   Section 11 of the Act provides for the Court to impose conditions that it considers appropriate, and sets out a series of the types of conditions that could be considered to be appropriate.

2. [70]

   The reality of applications under the Act brought to this Court is that almost invariably, the plaintiff submits the same or a very similar suite of conditions in every case. The common sense and interaction of those proposed conditions, in terms of reducing the risk presented to the community by a defendant, is sometimes very evident and sometimes not.

3. [71]

   In this case, substantial challenge was made by counsel for the defendant to the appropriateness of a number of the conditions. As observed by Beech-Jones CJ at CL at the preliminary hearing, in Lynn, Basten JA at [124] made some apposite remarks concerning the relationship between the potential conditions that might be imposed and the identified risk:

4. [72]

   To that I would add the following observations of Basten JA at [129] to [130] as applying to my task at this stage of my decision:

5. [73]

   Obviously questions of incursions into a defendant’s liberty include evaluating with care the appropriate length of an ESO. The plaintiff contended four years was appropriate, and the defendant, one year. I am satisfied something much closer to the defendant’s position is appropriate given in particular the positive matters demonstrated by the defendant over the last few years. The length of the ESO will be 18 months.

6. [74]

   Counsel for the defendant argued that the Court should impose only a small number of selected conditions, none of which would provide for monitoring and checking on Mr O’Hara or much of a basis to require him to comply with supervisory steps and strategies. The argument posed was that anything more than that would be unduly intrusive. However the package of limited conditions proposed by the defendant would in my view amount to no more than the defendant “checking in” weekly and telling his DSO what he had been doing.

7. [75]

   It would not be consistent with the purposes of the Act to impose a package of conditions that has no synergy to provide adequate supervision of an offender because there is no in-built basis for a DSO to monitor and manage Mr O’Hara’s behaviour, should he begin to stray into potential risky behaviours or associations. For that reason I have imposed many of the conditions contended for by the plaintiff, some with adjustments to take into account accepted submissions made by counsel for the defendant.

Monitoring and reporting: Proposed conditions 1, 4, 5, 6 and 7

1. [76]

   The defendant argued that “supervision and guidance” stated in proposed condition 1 is not provided for in s 11 and so is an “over-reach” of power. The plaintiff submitted that s 11 is a non-exhaustive list of permissible conditions (State of New South Wales v Davison (Final) [2019] NSWSC 1140 at [92]), and it is consistent with the provision in s 11 that an ESO “may direct an offender to comply with such conditions…” and so is simply an assertion of who will manage that direction.

2. [77]

   Given the expert views as to the susceptibility for relapse into an unstable lifestyle, some express power to manage a situation proactively is necessary. The condition in the form contended for by the plaintiff is imposed.

3. [78]

   Electronic monitoring and a schedule of movements is obviously intrusive, but has a significant role in assisting the defendant to plan and manage his time and stay out of trouble. It is in my view protective of the community, assists the defendant with compliance, and is appropriate and so conditions 4 to 7 are imposed.

Accommodation: Proposed conditions 9 and 10

1. [79]

   I have adjusted the curfew to 10:00pm to 6:00am. If the defendant obtains suitable employment that requires further adjustment to the time of curfew, no doubt that can be arranged.

2. [80]

   I am not prepared to impose condition 10 because to do so would criminalise failure to comply with a “rule or by-law” of accommodation where Mr O’Hara lives. There is no way of knowing whether such by-laws or rules made are reasonable or necessary. It would be unfair to the defendant to impose such a potentially problematic condition.

Employment, finance and education: Proposed conditions 18, 19 and 20

1. [81]

   I have adjusted condition 18 to allow the defendant some flexibility to seek out and obtain useful work, including volunteer work, without having to first have it approved. He must notify the DSO first, but Mr O’Hara is not a person who should be kept from exploring or involving himself in work because of the potential risk of committing a serious violence offence. If anything, having something useful and meaningful to do is protective.

Non-Association: Proposed condition 27

1. [82]

   The defendant opposed this condition that provided that Mr O’Hara must agree to his DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. It was argued that it will induce a feeling of no control or ability to navigate his own interactions with others.

2. [83]

   The plaintiff argued that because Mr O’Hara’s violence is reactive, and potentially overreactive, people living or working with him need an opportunity to develop safety plans. There is also a concern that he will minimize his past offending.

3. [84]

   Both arguments have merit. In my view the defendant should have a reasonable opportunity to disclose his offending, but he must do so accurately, hence the adjustment I have made to the condition proposed.

Weapons: proposed condition 30

1. [85]

   Given the defendant’s utilising of available items as weapons, some focus on what is and is not permitted in that regard is appropriate. The proposed condition has the effect of making the defendant mindful as to how he conducts himself at home as well as in public to ensure he is not unintentionally (or intentionally) conveying a sense of threat. For these reasons a condition making what is and is not allowed to be held or owned by him and in what circumstances is appropriate.

Search and Seizure: proposed conditions 42 and 43

1. [86]

   Powers of search and seizure have the effect of keeping Mr O’Hara mindful of weapons and their potential threat in his living environment. It is an appropriate condition for both safety of the community and safety of the staff supervising him.

Medical intervention and treatment: proposed conditions 48, 49, 50, 51, 52, 53 54 (now agreed) and 55

1. [87]

   Counsel for the defendant expressed concern that these conditions were repetitive and unnecessarily broad.

2. [88]

   Whilst on their face they may appear that way, they are directed to slightly different – and important – aspects of Mr O’Hara’s supervision.

3. [89]

   Condition 48 deals with the premise that Mr O’Hara should participate in these identified treatment goals and approaches. This is important given his unmet treatment needs.

4. [90]

   Condition 49 requiring identification of health care practitioners is important information for a DSO to have in terms of schedule of movements and health issues that may be relevant to know about and to help ensure these are being adequately managed to keep Mr O’Hara well and his stress levels down.

5. [91]

   Condition 50 emphasises Mr O’Hara’s obligations to attend and engage in relevant psychological, psychiatric and other relevant therapy sessions as well as cooperating with the process of securing a mental health care treatment plan with his GP, so this condition highlights the requirements Mr O’Hara needs to personally fulfill.

6. [92]

   Condition 51 is appropriately directed to Mr O’Hara’s admitted off-script use of legally prescribed drugs to get a “buzz”.

7. [93]

   Condition 54 was argued to be more properly confined to relevant public authorities rather than being “at large”. I accept that argument and so the confinement to police, DSO and CSNSW.

8. [94]

   Condition 55 – the disclosure of criminal history – I have determined should be limited to GPs, psychiatrists and psychologists as the relevant treating professionals who need to know about his criminal record. The defendant should, in agreeing to that, be fully aware of the importance that disclosure has to his treatment. More general revelations to other “health care professionals” I did not see as necessary as a group. This should be the subject of discussion with the DSO and management under condition 27.

Orders

1. [95]

   I make the following orders: