State of New South Wales v LC (Preliminary)

1. [1]

   The State of NSW by Summons filed on 5 September 2022 seeks interim and final orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant, LC. The final relief sought by the State comprises an extended supervision order (ESO) of 3 years.

2. [2]

   The interim orders sought at this preliminary hearing comprise mandating psychiatric and psychological examinations (under s 7(4) of the Act) and that the defendant be made subject to an interim supervision order (ISO) commencing at 12:01am on 17 December 2022 for a period of 28 days.

3. [3]

   I have been assisted by detailed written and oral submissions from counsel for both parties directed to the issues for determination at this preliminary stage. They are first, whether the statutory test for the imposition of an ISO is met, (i.e. whether the supporting documentation, taken at its highest, would, if proved, satisfy the Court to a high degree of probability that LC poses an unacceptable risk of committing another serious offence if not kept under supervision under the order), second, if it is, whether in the exercise of its discretion the Court should make an ISO, and third, whether the Court should order that the defendant attend examinations under s 7(4) but not impose an ISO at this stage given that the supervision provided by the Community Correction Order (CCO) in place, effectively keeps the risk of LC committing a serious violence offence to below the level of unacceptable, although as I understand the position, that third approach is no longer sought by LC.

4. [4]

   For the reasons that follow, I am not satisfied that an ISO should be made and the Summons is dismissed, with costs.

Background

1. [5]

   LC is a 47-year-old Ngunnawal man, currently serving the last three weeks of parole of a sentence for the manslaughter of his former partner’s 13-month-old baby in November 2007 (the index offence). He pleaded guilty to that offence and in August 2010 was sentenced to 14 years imprisonment with a non-parole period of 10 years 6 months.

2. [6]

   LC had committed that offence whilst he was on parole for an earlier manslaughter that he had committed in 1996 where he shot and killed a stranger in a brothel. That offence was the subject of a plea of guilty to manslaughter on the basis of “diminished responsibility” due to his borderline personality disorder and severe depression. For that offending LC had been sentenced in May 2000 to 12 years imprisonment, with a non-parole period of 7 years and 6 months.

3. [7]

   At the time of the 1996 offence, LC was abusing alcohol and illicit substances. He was abusing prescription medications at the time of the 2007 index offence. It is common ground that there is no evidence at all that LC is currently abusing either alcohol or drugs.

4. [8]

   The following family and social background is taken from the report of Dr Parker dated April 2022. Dr Parker is a Senior Psychologist from the Serious Offenders Assessment Unit.

5. [9]

   LC is the second youngest of eleven siblings. LC described his father as an alcoholic. His parents separated when he was eight. An older brother died in a car accident. LC said that he had good grades at school. One of his brothers was diagnosed with Leukemia when LC was 13 or 14 years old, and he felt bereft to be left with his alcoholic father whilst his mother focused her care on his ill brother.

6. [10]

   LC moved to Kempsey to live with his sister and her husband. He met a woman called Melissa with whom he fell in love but there were difficulties, including jealousy on his part, and when the relationship ended, he took refuge in drugs and alcohol and engaged in self-mutilation. In this part of his life he committed the first manslaughter.

7. [11]

   In 2007 while on parole for the first manslaughter, he formed a new relationship with a woman who had a baby belonging to her former partner. LC committed a number of acts of violence towards the baby causing the baby’s death on 8 November 2007.

8. [12]

   LC told Dr Parker that he used drugs from the time he was about 14 years old. He admitted to abusing numerous substances over the years, but since his last release to parole there have been no incidents of substance abuse.

9. [13]

   Dr Parker noted that a pattern of self-harm during his teens and early twenties seems to have abated with nothing at all noted in the Offender Information Management System (OIMS) notes referring to self-harm since 2007.

10. [14]

    LC was convicted in 2021 of an offence in September 2020 where it was alleged that he was hostile and intimidating towards police who were attempting to serve some papers on him. It is alleged that in a heightened emotional state, he made threats to kill a police officer who had attended the previous day. This led to LC’s arrest on 22 September 2020. He was convicted of the charge of intimidate police officer in the execution of duty. He was remanded in custody until he was granted parole on 7 October 2021, having been sentenced on 28 September 2021 to a 3 year Community Correction Order (CCO) for the intimidation offence.

11. [15]

    Dr Parker stated that since his release LC has continued to comply with parole reporting requirements, although his living situation has been somewhat unstable due to the behaviours of his brother with whom he resides, and LC often spends time staying with another brother.

12. [16]

    There has been no offences of any kind since 20 September 2020, a period of over two years.

The index offending - 2007 manslaughter of baby

1. [17]

   The circumstances of the index offence were summarised by the sentencing judge Hidden J as follows:

2. [18]

   Hidden J added the following observations regarding subjective features and the opinion of Dr Westmore, Psychiatrist:

3. [19]

   Hidden J found that there was no evidence of LC expressing remorse for his offending other than what was inherent in the guilty plea. He noted these specific subjective features present at the time of the offence:

4. [20]

   Hidden J also noted the opinion of Dr Westmore to the effect that LC’s personality difficulties make him vulnerable to stress and that his history of impulsive behaviour appears to have some relevance to this matter.

5. [21]

   Hidden J commented on LC's prospects of rehabilitation as follows:

Operation of the Act

1. [22]

   The Court needs to be satisfied that the statutory pre-conditions s 5C(a) to (d) of the Act are satisfied. These are first, that the defendant is an offender serving a sentence of imprisonment for a serious offence, second, that he is a “detained offender” and third, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious violence offence if not kept under supervision under the order.

2. [23]

   If so satisfied, the Court must make an order appointing two experts to assess the defendant: s 7(4), and then consider whether, in its discretion it should impose an ISO and if so, then to go on to consider such conditions as are appropriate: s 11.

3. [24]

   The purpose of the Act is protective, the primary object being to ensure the safety and protection of the community. Another object - obviously enough a secondary one - is to encourage offenders to undertake rehabilitation. I observe that a rehabilitated offender presents less risk to the community, but I must not elevate that concern to one that trumps the need to ensure the safety and protection of the community.

The nature of a preliminary hearing

1. [25]

   The purpose of and processes entailed in a preliminary hearing can be summarised as follows:

2. [26]

   It is clear that at this stage the Court does not assess, weigh, evaluate, accept or reject the expert opinions or material set out in affidavits tendered by the State, but must take them as assessments that have been made at those times of matters relevant to the defendant’s risk, and that evidence of the deponents contained in the affidavits and annexures is all true and correct.

3. [27]

   In that context it is worth observing that the Court is assessing current risk and so reports that are up to twenty years old may have more limited relevance to that assessment.

The evidence

1. [28]

   The State tendered two affidavits of Ms Fisher, solicitor, affirmed 5 September 2022 and 31 October 2022 as well as a volume of exhibited material addressing s 9(3) mandatory considerations.

2. [29]

   An affidavit of Ms Grabham affirmed 24 November 2022 was also tendered. This was supplemented by a further affidavit of Ms Grabham affirmed 2 December 2022 providing further details on the question of supervision under the current CCO and how that would change under the proposed ISO in terms of personnel.

3. [30]

   LC tendered an affidavit of his solicitor, Ms Macdonald, affirmed 22 November 2022 and an affidavit of LC sworn 22 November 2022.

4. [31]

   LC provided a further affidavit sworn 5 December 2022 in response to some questions raised during the 28 November 2022 hearing regarding what he has been told as to change of supervising personnel if an ISO is imposed.

5. [32]

   Objection was taken by counsel for the defendant Ms McGee to the contents of a Police Facts Sheet that contained a summary of what police assert were the circumstances that led to the September 2020 intimidation of police officer charge. Ms McGee submitted that I should reject the tender of that Facts Sheet because it contained nothing but untested allegations made by police. She submitted that although the offence was found to be proved, the Magistrate’s reasons as to what he or she accepted to be the facts and a transcript of the hearing would comprise the proper basis to inform the Court of those matters, but such material has not been made available by the Crown, despite request. Ms McGee submitted that I should exclude the Police Facts Sheet under s 135 of the Evidence Act 1995 (NSW) on the basis that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial or misleading or confusing.

6. [33]

   Mr Aitken for the State submitted that the Facts Sheet should not be rejected because s 25(3) of the Act provides that documents or reports produced under s 25 of the Act are admissible in proceedings under the Act, despite any Act or law to the contrary and so s 135 of the Evidence Act is not applicable.

7. [34]

   Mr Aitken cited two authorities. The comments of Garling J in State of NSW v Sturgeon [2019] NSWSC 559 (“Sturgeon”) at [5] to [6] provide some helpful context:

8. [35]

   In State of NSW v Heness (Preliminary) [2019] NSWSC 1710 (“Heness”) at [28] to [29] Fullerton J set out her views as to what “weighing” means in the context of the evaluative exercise the Court is to undertake at the preliminary hearing stage and so the status of any s 135 Evidence Act-type objection:

9. [36]

   I agree with the remarks of Garling J in Sturgeon and the conclusions by Fullerton J in Heness. Section 135 of the Evidence Act has no role to play in a preliminary hearing under the Act. The Police Facts Sheet will not be excluded from evidence, however the nature and role of that document must be evaluated and considered in context, that is, that it comprises a summary prepared by a police officer as to what police assert occurred on that day that provided the basis for the charge of intimidate police officer in the execution of his duty. It cannot be any more or any less than that.

Principles for the evaluative task in s 5C(d) of the Act - “unacceptable risk”

1. [37]

   These principles can be summarised as follows:

Relevant statutory considerations in determining whether to make an ISO: s 9(3) of the Act

1. [38]

   As noted above, in determining whether to make an ESO under the Act, the safety of the community must be the paramount consideration of the Court: s 17(2). Obviously that mandatory consideration applies equally to interim orders.

2. [39]

   Section 9(3) sets out the matters to which the Court must have regard when determining whether the defendant presents as an unacceptable risk if not kept under supervision under the order. Those relevant to this preliminary stage are:

Evidence in the supporting documentation of the matters required to be considered under s 9(3)

1. [40]

   LC was convicted of assault police, 2 counts, resist or hinder arrest and malicious damage in 1996.

2. [41]

   This was followed by a conviction for shooting a man he did not know in a brothel in December 1996. The agreed facts tendered on sentence state that on 17 December 1996, LC drank alcohol and smoked cannabis. He entered a unit in a brothel carrying a shotgun. Inside the unit were Ms Thomas and Mr Pagett (the victim). Ms Thomas asked LC if she could help him and LC replied that he wanted to see "Nina". Ms Thomas would not let LC see Nina. Mr Pagett asked LC his name and LC pointed the shotgun at Mr Pagett and said "you want to know my name" and shot Mr Pagett in the throat.

3. [42]

   The September 2020 intimidation of a police officer in the execution of his duty was, it seems, born of rage and frustration. On 18 September 2020, police attended LC's premises to discuss the firearms and weapons prohibition orders served that day. LC became defensive and aggressive and claimed police were harassing him. He screamed at police words to the effect that if the officer who had attended his residence the previous day returned, he would cut his head off and set him on fire. LC was observed to became extremely aggressive and repeated that he was not like other criminals and he would do what he threatened to do. Police feared for the officer’s safety.

4. [43]

   Greg James J found the shooting in 1996 was impulsive and unpremeditated. His Honour stated at [28]:

5. [44]

   As noted in the discussion of the index offending, in sentencing LC, Hidden J took the view that the defendant had reduced criminality given the evidence of emotional and physical abuse he suffered during his childhood as well as his underlying personality disorder.

6. [45]

   This has been an issue in the past although less so over the last year. The defendant has been non-compliant with requirements of parole on previous releases leading to revocation of parole.

7. [46]

   Whilst it is true that the defendant did not breach his most recent parole by violent offending, there was on his part intimidation and voluble and graphic threats of violence made towards a police officer doing his job.

8. [47]

   LC engaged in the Violent Offenders Therapeutic Program (VOTP) between August 2016 to March 2017 in custody. The VOTP report dated 21 April 2014 authored by Tara Rouse and Gillian Tulloh stated that LC demonstrated remorse for the victim (although not full acceptance of responsibility) and that he demonstrated significant grief for what was done. LC also showed remorse for the victim's family for the first manslaughter, and in particular the victim's children.

9. [48]

   Pre-treatment, LC scored 49.5% on the Violence Risk Score (VRS) (this is an actuarial tool designed to assess the risk of violent reoffending). Those offenders with the same score were criminally convicted of new violent offences within 5 years of release. This pre-treatment score put him in the high-risk category of violent reoffending with 14 of 20 risk factors rated as high treatment needs. After the program, LC's VRS score was 39.5%. Those offenders with the same score were convicted of a new violent offence within 5 years of release.

10. [49]

    He also endorsed attitudes supportive of violence and often justified his previous episodes of violence. The report commented on LC's history of "routinely carrying a weapon" during periods of his life. During the course of treatment, LC was able to acknowledge the problems that weapons cause and that he had made advances in this area, identifying the risks of carrying a weapon and minimising his access to weapons.

11. [50]

    Ms Tulloh and Ms Rouse go on to state in the report that LC developed practical strategies to manage his risk factors and made gains on all of his 19 risk factors during the course of treatment and has achieved as much as reasonably expected with someone with his risk profile over the course of an 8 month treatment program.

12. [51]

    It was noted that LC had insight into his violent beliefs, and viewed them as protective and useful but engaged in actively re-thinking those beliefs. The report concluded:

13. [52]

    Recommendations were made to reduce LC’s risks, including VOTP Maintenance (which LC attends and has done for five years), monitoring his distress tolerance techniques, (which is being done through VOTP Maintenance), maintaining quality relationships with family, and non-association with criminal peers.

14. [53]

    Ms Tulloch and Ms Rouse considered that LC may violently re-offend if he were not managing his risk factors and/or experienced the loss of positive goals. LC may lapse into violent behaviour if he believes someone has behaved in a manner that contradicts his values and required punishment. Alternatively, a high risk scenario would include a relationship break down. The authors considered that management of risk involved LC improving his level of functioning in these risk areas.

15. [54]

    As at May 2020, LC was participating in VOTP Maintenance and had already completed EQUIPS Domestic Abuse, Getting SMART, SMART Recovery and Managing Emotions and Anger Management programs.

16. [55]

    An old drug and alcohol report dated 19 January 2005 set out that LC completed the Basic Alternatives to Violence Course as well as Relapse Prevention, AOD Awareness and HIV Health Promotion courses. LC was also receiving one-on-one counselling on a regular basis whilst at St Heliers Correctional Centre. The report writer noted that LC displayed insight into his drug use and associated risks.

17. [56]

    Dr Parker noted in his April 2022 report that since his release in June 2020, while LC attended all appointments and participated in discussions, others have reported that his engagement in VOTP “appears to be superficial”.

18. [57]

    Other than Dr Parker’s April 2022 report and a 2013 review by a psychologist for the purposes of the Serious Offences Review Council, all of these assessments are at least twelve years old, and are focused on examining whether LC had a mental illness or abnormality of mind in 2007 or 1996 such that a partial defence to murder could be established. In that context there was little if anything specifically directed to the likelihood of him committing a further serious violence offence.

19. [58]

    Five psychiatrists assessed LC in the context of his sentencing hearing in 2000 for the 1996 shooting. Each offered a view on the question of whether the defendant had a mental illness or disorder.

20. [59]

    Dr Westmore diagnosed borderline personality disorder and severe depression, concluding that LC’s mood disturbance was significant and substantial and arose in part because of his dysfunctional personality. He described LC at that time as a man with few coping skills, particularly in terms of emotional disappointments arising from broken or dysfunctional relationships.

21. [60]

    Dr Strum also made a diagnosis of borderline personality disorder and severe depression. He concluded that the depression is part of his personality disorder and that alcohol and drugs contributed to the offending, but were not the predominant issue that caused the abnormality of mind.

22. [61]

    Dr Skinner diagnosed borderline personality disorder characterised by a pervasive pattern of instability of interpersonal relationships and marked impulsivity.

23. [62]

    Professor Hayes diagnosed borderline personality disorder and severe depression concluding that:

24. [63]

    Dr Wilcox took a history that outlined LC’s escalating use of drugs and his self-mutilation and distress leading up to the time of the offences. She diagnosed borderline personality disorder with anti-social traits. She described this as:

25. [64]

    In April 2010 LC was again assessed by Dr Westmore for sentencing proceedings for the 2007 manslaughter of the baby. Dr Westmore concluded:

26. [65]

    A “Violent Offender Psychological Report” in September 2013 prepared for the purpose of “identifying risks/needs/responsibility factors to assist in the case management of the offender in custody” by Dr Donna Hillier, Psychologist, concluded that LC’s risk of violent re-offending was within the high range, with risk situations identified as when LC is feeling stressed, angry, overwhelmed or frustrated. She identified that this risk is “further heightened by acute substance intoxication and/or access to weapons”. This assessment was directed to identifying the need for LC to participate in the VOTP (which LC undertook, including five years on the maintenance program) and other recommendations for in custody management, including urine testing for drug use. Given its function and the fact that the report is nine years old, its content needs to be viewed in context in which it was written.

27. [66]

    In his report dated April 2022, Dr Parker noted that actuarial risk estimates place LC’s risk of reoffending as “moderate” to “high” and that at the time of his assessment LC had been “relatively stable since being released from custody, but in the scheme of things six months is a relatively short period. However it does continue on from an extended period of improved behaviour in custody”.

28. [67]

    Dr Parker concluded:

29. [68]

    After a short discussion on studies on “Shame” by Nathanson (1992) Dr Parker continued:

30. [69]

    There are many pages of OIMS notes in the tendered material that deal with the positive behaviour of LC upon release but also refer to some difficulties encountered by Corrective Services staff in managing him on occasion. A potentially troubling feature noted is anger and temporary withdrawal of cooperation if LC perceives he has been treated unfairly.

31. [70]

    In the Risk Management Report prepared by Mr Saad and Ms Grabham of Community Corrections ESO Team dated May 2022, ongoing risk factors were noted to include (based on Dr Parker’s April 2022 assessment), criminal thinking comprising: normalisation of violence, “I am the law”, “beat or be beaten” and “I get out out of control” as well as substances abuse.

32. [71]

    Mr Saad and Ms Grabham concluded that response to previous periods of supervision in the community are “underpinned by hostility towards supervision conditions and a generally anti-authority view”. None of this pre-supposes this behaviour is necessarily a precursor to any serious violence offending.

33. [72]

    The report goes on to set out the usual suite of conditions including electronic monitoring and schedules and why they are required, even though the State is not actually seeking those “usual” conditions. There is a flavour of formulaic approach in the report that is suggestive of a lack of nuanced consideration as to what is actually necessary and appropriate to manage the risk LC presents.

34. [73]

    It was submitted by Ms McGee that any risk presented by LC can be managed by the combination of the regimens of orders that apply to him. First is the CCO in place until 27 September 2024:

35. [74]

    The firearms prohibition order makes it an offence for LC to acquire a firearm or firearm part or ammunition, or possess ammunition or a firearm or firearm part or to attend a firearms dealer or shooting range and police are permitted to detain him, enter his premises and search as well as to search LC personally or any vehicle or vessel occupied by him.

36. [75]

    The weapons prohibition order has the effect that LC must not possess or use a prohibited weapon (as defined). There is a potential maximum penalty if LC does so of 10 years imprisonment. The order provides that any weapon found in or on any premises he is occupying is taken to be his.

37. [76]

    The framework for supervision under the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”) was set out comprehensively in Ms McGee’s written submissions:

38. [77]

    Ms McGee submitted that there is evidence of police acting on these obligations and checking in on LC and that LC’s compliance with these obligations has been exemplary. The CPOR order would expire in 2028.

39. [78]

    Ms McGee submitted that LC’s current risk of committing a violence offence (as opposed to a serious violence offence) was rated as moderate, and that his risk is likely to be able to be managed in the community by the supervision provided by the CCO in place until September 2024 and the requirements of the weapons and firearms prohibition orders and the requirements of the CPOR Act in place until 2028.

40. [79]

    Ms McGee also submitted that the proposed 52 conditions of the ISO add nothing by way of addressing any risk of committing a serious violence offence that is not already covered in those other regimes and requirements, (although the evaluation I need to make at this initial stage is whether, absent an ISO, I am satisfied to a high degree of probability on the evidence tendered that LC poses an unacceptable risk of committing a serious violence offence, rather than assessing how the proposed ISO may ameliorate that risk).

41. [80]

    Mr Aitken on behalf of the State argued that the purpose of the CCO and the statutory regimes for weapons and firearms prohibition and child protection are very different, that a high risk offender order is specifically directed to risk, and this Court should not be “distracted” by aspects of those other regimes and the CCO that may seem, on their face, to be similar to conditions of the proposed ISO. I am unpersuaded by that argument. A number of the ISO proposed conditions in fact mirror or replicate the CCO and weapons and firearms prohibitions orders, the obligations under the CPOR Act are comprehensive and the statutory regimes of this actively and directly involve the police in a supervisory and investigative role.

42. [81]

    This is a slightly complicated issue and has required a careful reading and consideration of all of the material tendered including the more recent OIMS case notes. As demonstrated in the past in the two periods on parole, LC seems to be going well, and then will suddenly career out of control with violence of a most serious kind, (2007), and threats of violence (in September 2020). He has however, to his credit, worked hard at strategies to manage his overwhelming emotions. I am satisfied that he has ceased using alcohol and non-prescribed medications. His cooperation with parole requirements since October 2021, whilst the subject of complaint by him on occasion regarding things he sees as unfair, has been responsive, intelligent and constructive.

Decision - Unacceptable risk - is the statutory test in s 5B(d) satisfied?

1. [82]

   I have considered all of the material tendered by the State on this application including the historical assessments by well-qualified psychiatrists regarding LC’s personality disorder, the 2013 and 2022 psychological assessments, his very difficult upbringing and his periods of self-abuse, drug and alcohol abuse and distress. He has in my view made very significant strides towards addressing his negative patterns of behaviour and negative thoughts about himself. He has cooperated and learnt from the strategies taught.

2. [83]

   He has been assessed as in the “moderate” to “high risk” category for violent reoffending, more recently (and so more relevantly) in the “moderate” category, although the significant limitations around the risk assessment tools utilised have been acknowledged by those who use them.

3. [84]

   None of those tools assess the risk of committing a serious violence offence with which this Act is concerned.

4. [85]

   LC has borderline personality disorder, but the experts observed that the effects of this disorder on behaviour can, and do, recede with time.

5. [86]

   He has ceased abusing drugs and alcohol. He has sought out and focused on people - his siblings - and things that matter to him such as reconnecting with country and culture. He is now 48 years old. He has participated in multiple risk reducing programs and therapies over many years that were prescribed to him for the purpose of addressing his criminal thinking and behaviours with good gains and understanding. His last serious violence offence was 15 years ago in a situation of high stress, immaturity and significant drug abuse.

6. [87]

   The supervision in the community under the CCO and the requirements of the statutory regimes to which he is subject and the orders that prohibit gun and weapon possession and the policing of those matters are also all protective matters.

7. [88]

   I am not satisfied to a high degree of probability that LC poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order.

8. [89]

   I am persuaded by Ms McGee’s submissions, as well as by the evidence of LC’s own evolution in understanding and managing his difficulties, his efforts to structure a life where he can manage stresses and avoid violent offending and his obvious and sustained commitment to maintaining abstinence from drugs and alcohol.

Orders:

1. [90]

   I make the following orders:

   1. (1)

      The Summons is dismissed.

   2. (2)

      The plaintiff to pay the defendant’s costs.