State of New South Wales v Ryan (Final)

1. [1]

   By a Summons filed on 9 December 2022, the State of New South Wales (“the State”) sought the following final relief in relation to Mr Benjamin Michael Ryan (“the defendant”):

   1. (1)

      An extended supervision order (“ESO”) for a period of three years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”);

   2. (2)

      An order pursuant to s 11 of the Act, that the defendant comply with the conditions set out in the Schedule attached to the Summons for the period of the ESO.

2. [2]

   A Further Amended Summons was filed on 10 August 2023 in which the final orders sought by the State remained the same, but the Schedule of conditions had been revised.

3. [3]

   On 14 August 2023, both the defendant and the State filed further written submissions which reflected recent developments relating to the defendant’s drug overdose. In these further written submissions and in closing submissions at the hearing, the issues in dispute were narrowed to conditions 13 and 38 (per the Schedule in the Further Amended Summons).

Procedural History

1. [4]

   On 3 March 2023, following a preliminary hearing of the matter, Fagan J made orders appointing qualified experts to conduct examinations of the defendant and write a report and imposed an interim supervision order (“ISO”) on the defendant: State of New South Wales v Ryan [2023] NSWSC 236 (“Ryan No 1”). His Honour’s judgment detailed much of the background to this application, which I will not repeat.

2. [5]

   Pursuant to those orders, reports were provided by Dr Sathish Dayalan, forensic psychiatrist, on 15 May 20223 and Ms Lisa Zipparo, clinical neuropsychologist on 15 May 2023.The matter was then listed for final hearing on 15 August 2023.

Evidence

1. [6]

   The plaintiff relied on the following evidence in support of the application:

   1. (1)

      Affidavit of David Yang affirmed 12 December 2022, together with Exhibit DY-1;

   2. (2)

      Affidavit of Kelli Grabham affirmed 26 February 2023;

   3. (3)

      Report of Dr Sathish Dayalan dated 15 May 2023;

   4. (4)

      Report of Lisa Zipparo dated 15 May 2023;

   5. (5)

      Affidavit of David Yang affirmed 14 July 2023; and

   6. (6)

      Affidavit of John Banton sworn 17 July 2023.

   7. (7)

      Affidavit of David Yang affirmed 8 August 2023;

   8. (8)

      Affidavit of John Banton sworn 11 August 2023.

   9. (9)

      Updated OIMS Case Notes filed in Court.

2. [7]

   The defendant relied on the following evidence in the final hearing:

   1. (1)

      The affidavit of Michelle MacDonald affirmed 20 February 2023.

   2. (2)

      The affidavit of Michelle MacDonald affirmed 3 March 2023.

   3. (3)

      The affidavit of Hannah Bruce affirmed 4 August 2023.

The Statutory Preconditions

1. [8]

   Section 5B of the Act provides as follows:

2. [9]

   A “serious offence” is defined at s 4. It includes a “serious sex offence”. A “serious sex offence” is defined in s 5. It includes certain offences under Div10 of Pt 3 of the Crimes Act 1900 (NSW) (and other enumerated offences).

3. [10]

   As noted by Fagan J in Ryan No 1, the statutory preconditions in s 5B(a)-(c) are satisfied in this matter. His Honour stated and, I agree, with respect, at [3]:

4. [11]

   I also note that both parties accept that ss 5B(a)-(c) are satisfied.

Section 5B(d) of the Act and the Assessment of s 9 of the Act

1. [12]

   In the assessment of whether the defendant poses an unacceptable risk of committing another serious offence under s 5(d), it is appropriate for the Court to consider the factors under s 9 of the Act in addition to any other matter it considers relevant: see State of NSW v Kamm [2016] NSWSC 1 at [42]; State of New South Wales v Fisk [2013] NSWSC 364.

2. [13]

   Section 9 of the Act provides as follows:

3. [14]

   Again, I note that the parties were agreed that the defendant poses a risk under s 5(d). The defendant did not oppose the making of an ESO.

4. [15]

   Ultimately, this is a question for the Court but, on the evidence, I have reached the requisite state of satisfaction for the purposes of s 5B(d). I am satisfied, per s 9(2) of the Act, that the safety of the community would be best served in the making of an ESO.

5. [16]

   I turn now to consider the factors under s 9(3) in that context.

6. [17]

   The defendant is a 42-year-old Aboriginal man with several vulnerabilities, including a history of homelessness, trauma, mental health issues and drug addiction. He has an extensive criminal history which includes matters involving violence, as well as matters that are directly or indirectly related to his drug addiction.

7. [18]

   The defendant has very recently been discharged under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in respect of two charges of stalk/intimidate and one count of failing to comply with an ISO.

8. [19]

   The index offences were helpfully summarised by the State in their written submissions and are extracted here as follows:

9. [20]

   The defendant has an extensive criminal history involving serious historical violence offences. Fagan J summarised the defendant’s record of principal violent offences at [5] in his judgment Ryan No 1. With respect, I adopt his Honour’s summary:

10. [21]

    Dr Dayalan’s report was based on a review of the materials filed in the case, together with an interview with the defendant on 1 May 2023. At the interview, the defendant presented as highly agitated during the assessment, had “minimal interest in discussing topics that he regarded as not relevant” and “struggled to stay on topic.”

11. [22]

    Dr Dayalan diagnosed the defendant with borderline personality disorder, antisocial personality disorder, an acquired brain injury and alcohol, opiate, cannabis, stimulate and benzodiazepine use disorders.

12. [23]

    Dr Dayalan noted that the findings of the assessments contained in the brief indicate the presence of cognitive impairment which, in the defendant’s case, is a manifestation of his acquired brain injury. Dr Dayalan reviewed an occupational therapy assessment report and noted that it is indicative of a significant impairment in the defendant’s level of functioning. As a result, the defendant will have difficulty learning new information (including any conditions imposed under an ESO).

13. [24]

    Dr Dayalan assessed the defendant’s risk of violent offending using the Violence Risk Appraisal Guide – Revised (“VRAG-R”) actuarial risk assessment tool. The defendant was assessed to be in the high-risk category of violence risk.

14. [25]

    Dr Dayalan identified the defendant’s main contributory factors for violent offending are substance use, poor regulation of emotions and behaviour, and unstable social circumstances and interactions with antisocial individuals. Dr Dayalan also noted that the defendant’s personality traits perpetuate his substance use disorder. Overall, Dr Dayalan considered that the defendant poses a risk of committing a further serious violent offence.

15. [26]

    Dr Dayalan noted that the defendant’s history of aggressive behaviour appears to be largely impulsive and reactive to his situation which makes it challenging to predict.

16. [27]

    In relation to managing the defendant’s risk, Dr Dayalan said:

17. [28]

    Dr Dayalan considered that an ESO would be the most appropriate and effective means of managing the defendant’s dynamic risk factors relevant to him committing a serious violence offence.

18. [29]

    Dr Dayalan opined that a period of 3 years would be appropriate to allow the defendant to make progress with treatment and rehabilitation and to provide for a graded reduction in the conditions imposed so that he is on minimal conditions when the order expires.

19. [30]

    Dr Dayalan generally supported the conditions imposed by Fagan J on 3 March 2023. However, Dr Dayalan noted the defendant’s concern regarding his inability to remember all the conditions imposed and the potential for inadvertent breaches. Dr Dayalan suggested that input from a psychologist in providing the information in a format that is easier for the defendant to register, repetition of information and visual aids may assist the defendant. Dr Dayalan also reviewed the simplified conditions in the Amended Summons and noted that “[a]ny efforts to minimise the content in the document will improve [the defendant’s] registration of the conditions if an ESO was imposed” and therefore could assist with reducing the risk of breaches.

20. [31]

    Ms Lisa Zipparo, a fellow of the College of Clinical Neuropsychologist, a member of the Australian Psychological Society and a member of the Australasian Society for Traumatic Stress Studies, prepared a report of her psychological examination of the defendant based on a review of the materials filed in the case, together with two interviews with the defendant.

21. [32]

    During the first interview, the defendant attended with his NDIS support worker. He was highly emotionally dysregulated and fixated on obtaining a prescription which his GP had refused to provide. He was in an agitated state for two hours without being able to be calmed or diverted to other topics. As a result, the interview was terminated. The second interview occurred via AVL as the defendant had been reincarcerated. The defendant indicated that he was unable to participate due to not having received his methadone and therefore being unable to concentrate.

22. [33]

    Ms Zipparo opined that the defendant meets the criteria for the following conditions:

    1. (1)

       Cluster B Personality Disorder – Borderline Personality Disorder;

    2. (2)

       Substance Abuse Disorder – severe for opioids and stimulants;

    3. (3)

       Major Neurocognitive Disorder due to traumatic brain injury with behavioural disturbance;

    4. (4)

       Post-Traumatic Stress Disorder.

23. [34]

    Using the HCR-20 structured professional judgment risk assessment tool, Ms Zipparo identified various risk factors relevant to the defendant’s risk of future violence:

    1. (1)

       Historical risk factors: history of violence, antisocial behaviour, employment, substance use, major mental disorder, personality disorder and problems with supervision and treatment compliance.

    2. (2)

       Clinical risk factors: poor insight into his triggers for emotional dysregulation and his need for appropriate treatment, poor treatment compliance.

    3. (3)

       Risk Management factors: the defendant has some protective factors, including a supportive relationship with his adoptive parents, a trusting relationship with Uncle Chris and a $400,000 NDIS plan.

24. [35]

    Overall, Ms Zipparo assessed the defendant as having a high risk for future violent offending, noting that he has “a number of significant risk factors which overlay each other to create a significant risk of future violence”. She considered that the defendant’s diagnoses will impact on the risk of him committing a serious violent offence because his symptoms feature emotional dysregulation, difficulties with impulse control, affective instability, and inappropriate intense anger and aggression.

25. [36]

    Ms Zipparo opined that the defendant’s risks could not be managed in the community without an ESO. She went on to say:

26. [37]

    Ms Zipparo expressed the view that an ESO of 3 years duration is a minimum but that 5 years is more appropriate given the defendant’s high risk of recidivism, the complexity of his presenting problems and his many long-standing difficulties. She generally supported the conditions imposed by Fagan J. Ms Zipparo said that he is unlikely to have good planning capabilities and will be unable to plan ahead in order to comply with various conditions. She opined that the defendant’s heightened impulsivity and mental inflexibility will pose the greatest challenge to his ability to comply with the conditions and that he will require significant assistance from his support workers to assist in complying with the various conditions.

27. [38]

    Sarah Wright, Senior Psychologist, prepared a Risk Assessment Report (“RAR”) in relation to the defendant, dated 13 July 2022. Ms Wright interviewed the defendant via AVL for 3.5 hours over two occasions. A third interview was scheduled but the defendant refused to attend, which meant that information relating to current attitudes to risk factors and his release plans was not obtained.

28. [39]

    Ms Wright noted that an AVL interview necessarily has some limitations, such as not being able to identify any issues with hygiene and body language not captured by the Webcam. Ms Wright noted that some agitation was present, with sometimes tangential speech and repetition. However, she considered that the defendant did not demonstrate perceptual disturbance or psychotic symptoms. He reported ongoing passive suicidal ideation but denied current plans to harm himself.

29. [40]

    In relation to the defendant’s risk of general offending, an assessment carried out in February 2022 (just after his release to parole) using the LSI-R determined that the defendant’s risk/needs were within the medium/high risk category.

30. [41]

    The defendant was assessed using the Violence Risk Appraisal Guide – Revised (VRAG). His score placed him in the highest of nine ‘bins’ which would classify him as high risk. 76% of violent offenders in this category re-offended within 5 years.

31. [42]

    The defendant was also assessed using the Violence Risk Scale (“VRS”). The VRS is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, in particular, those who are being considered for release from institutions to the community after a period of treatment. The overall result of the VRS estimated the defendant’s risk of being convicted of further violent offences as being within the high-risk range. The defendant’s score was compared to a group of 918 federally sentenced Canadian inmates who had also been rated on the VRS. Of those offenders from this group who obtained a similar score to Mr Ryan, 44.5% were criminally convicted for a new violent offence within five years after release to the community, while 67.8% were criminally convicted for a new non-violent offence within five years after release.

32. [43]

    The defendant’s criminogenic needs include substance abuse, his mental health issues, impulsivity when under the influence of substances, violence in relation to perceived threat or as a response to anger.

33. [44]

    Given his substantial history of violent offending, including his escalation of violence in recent years, Ms Wright considered that it is possible that any future offending would reach the threshold of a “serious violence offence”.

34. [45]

    Ms Wright notes that any potential future violence would almost certainly occur in the context of substance use and may occur in the context of medication non-compliance and a destabilisation in his mental health. Ms Wright identified non-compliance with medication, substance use, homelessness, associating with anti-social peers as warning signs of increased risk for the defendant.

35. [46]

    Mick Glover, Community Corrections Officer, prepared a Risk Management Report (“RMR”) dated 22 August 2022. The report suggests that previous drug and alcohol-related interventions in 2001-2007 appear to have had limited success at least in part due to the defendant’s “apparent inability to disentangle himself from a chaotic and disorganised lifestyle.”

36. [47]

    During the interview, the defendant was seen as able to acknowledge the nexus between drug use and deteriorating mental health, however “he found it difficult to acknowledge that this had led to serious offending in the past and was also relevant to his current situation.”

37. [48]

    Mr Glover proposed the following risk management strategies:

    1. (1)

       weekly contact with his Community Corrections Officer and unannounced home visits monthly;

    2. (2)

       attempting to use behavioural change therapy through various exercises (including managing high risk environments, managing cravings and managing impulsivity);

    3. (3)

       field visits and surveillance;

    4. (4)

       monitoring associations;

    5. (5)

       electronic monitoring, and;

    6. (6)

       future psychological risk management intervention.

38. [49]

    Other engagement/supervision contemplated includes a curfew and schedules, accommodation requirements conditions, place and travel restrictions, finance/expenditure monitoring, employment monitoring, alcohol, drugs and weapons possession conditions, non-association conditions, internet/social media conditions to permit associations to be monitored, search and seizure relating to compliance with the ESO and associations, and conditions enabling directions to be given concerning engagement with mental health clinicians.

39. [50]

    The defendant has participated in a variety of interventions, treatments, and rehabilitation programs. Despite this, he has not maintained a prolonged period of abstinence: s 9(3)(e).

40. [51]

    I agree with the State that the defendant requires carefully guided and intensive supervision to ensure he complies with the obligations of any ESO.

41. [52]

    The defendant has a history of non-compliance. His has, in the past, breached parole conditions, breached bonds, failed to abstain from substance use and committed further offences: s 9(3)(f).

42. [53]

    The defendant has serious mental health and substance abuse problems which increase the risk that he will commit further serious offences: s 9(3)(i).

Principles

1. [54]

   The defendant referred to the decision of Wilde v State of New South Wales [2015] NSWCA 28 as to how the Court should assess the appropriateness of a disputed condition urged by the State in the context of the scope, purpose and objects of the Act, (see State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 (“Wilkinson”) at [44] (iv) and State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 (“Boney”) at [119]) and the more recent cases dealing with the appropriateness or otherwise of various standard conditions including search and seizure, employment, association and disclosure of criminal record).

2. [55]

   In considering the imposition of conditions, I note the following principles from Wilkinson set out by Hoeben CJ at CL (as his Honour then was) at [44]:

3. [56]

   Despite it being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127] in which the principles for the imposition of conditions are applicable. Those principles are as follows:

Conditions in Dispute

1. [57]

   In the Further Amended Summons and at the hearing, the conditions in dispute were narrowed to the following conditions proposed by the State:

   1. (1)

      Condition 13: “The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained. In the event of a breach of this condition, there is discretion to direct the defendant to engage in further treatment related to the drug involved in the breach rather than the defendant to be subject to breach proceedings under s 12 of the Crimes (High Risk Offenders) Act 2006”; and

   2. (2)

      Condition 38: “Subject to the restrictions on information sharing set out in condition 37, the defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, the NSWPF ESO Investigation Team and any other police officers working with or assisting that team, and CSNSW.”

2. [58]

   Condition 4 of the Further Amended Summons was not pressed by the State.

Condition 13

1. [59]

   After judgment in this matter was reserved, the defendant sought to file further evidence and make further submissions as to this contested condition. For convenience, I will set out the parties’ original submissions followed by that which emerged in evidence and submissions after the reopening of the defendant’s case, in this respect.

2. [60]

   In its original form, in summary, the defendant made the following submissions as to condition 13:

   1. (1)

      There is evidence that the defendant is a drug addict. There is recent evidence as to the extent of the defendant’s drug addiction, which resulted in an overdose and admission to hospital. It is not known whether any charges arise from this. There is a real concern that the defendant will be criminally charged and arrested with breaches of the ESO each time he engages in drug use, even if he admits it to his DSO and even if there is a discretion to direct him to engage in treatment. Given the defendant’s struggle with drug addiction, the defendant seeks deletion of condition 13 and submits there is still a suitable legislative regime to disincentivise (and criminalise, where appropriate) drug use by the defendant.

   2. (2)

      While the condition notes a discretion, it does not direct the DSO to operate in favour of the discretion over breach, nor does it guarantee that the discretion will necessarily be exercised over the three-year period of the order. It could have no practical effect if the DSO so chooses.

   3. (3)

      The defendant has a continuing pattern of drug use and addiction. One instance of this has resulted in the defendant being criminally charged with breaching the ISO. Most recently, the defendant was admitted to hospital after an overdose, in the context of concerning and distressed comments made about self-harm and suicide (despite later saying that the overdose was accidental). The defendant remains in hospital in a detoxification program.

   4. (4)

      The Court should be cautious of the consequences of over-criminalisation. An ESO condition prohibiting use or possession of prohibited drugs, or abuse of drugs unlawfully obtained, runs the following risks:

3. [61]

   At the hearing, the defendant submitted that there are other conditions proposed that are fashioned to target the risk associated with substance use, including conditions 14 and 17. Those conditions concern the prohibition of possession or consumption of alcohol without prior approval of a DSO and the defendant’s mandatory attendance and participation in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO.

4. [62]

   In its original form, the State submitted, in summary, the following, with regard to condition 13:

   1. (1)

      It is not merely the case that “the defendant is a drug addict.” His use of illicit drugs is one of the main contributory factors for his violent offending. In the judgment delivered following the preliminary hearing, Fagan J observed that “defendant has been a user of illicit drugs for at least two decades and has battled to control them. Their affects upon him undoubtedly contribute to his commission of violent offences.” Dr Dayalan stated that “Substance use has been an important contributory factor to Mr Ryan's violent offending. The disinhibiting effects of certain substances and increased physiological arousal associated with stimulants increase the risk of violent behaviour”.

   2. (2)

      Dr Dayalan also stated that improved “regulation of emotions and behaviour along with abstinence from substances will significantly reduce his risk of committing a serious violent offence”. Similarly, Ms Zipparo stated that “past offences seemed to be linked to his drug use and therefore it is possible that if Mr Ryan achieves abstinence from substance abuse, that this would have a significant impact on his likelihood of reoffending.”

   3. (3)

      Hence, the condition seeks to address one of the defendant’s central risk factors. Further, it is directed to achieving both objects of the Act (namely, ensuring the safety and protection of the community and encouraging the defendant to undertake rehabilitation): s 3 of the Act. Neither of the court-appointed experts suggested that the condition should not be made by the Court. Ms Zipparo stated that the condition would assist. Further, Fagan J imposed the condition following the preliminary hearing.

   4. (4)

      The non-inclusion of condition 13, in the face of the defendant’s risk profile, would be antithetical to the primary object in s 3(1) of the Act. Moreover, the absence of that condition might leave the defendant with the impression that the Court does not have any concerns with his drug use, with the likely consequence that he will be less incentivised to avoid illicit substances.

   5. (5)

      Whilst the defendant pointed to the availability of criminal offences for drug use under other State and Commonwealth legislation, the existence of such offence provisions is not a sufficient reason for not imposing condition 13, particularly in light of the strong link between the defendant’s drug use and his violent offending. There are numerous instances of the Court having imposed a condition similar to condition 13, despite the availability of criminal offences for drug use under other State and Commonwealth legislation: e.g. State of New South Wales v McGee (Final) [2023] NSWSC 546; State of NSW v RC (Final) [2023] NSWSC 26; State of NSW v Biber (No 2) (Final) [2021] NSWSC 104; State of New South Wales v Wynne (Final) [2021] NSWSC 488.

   6. (6)

      The defendant’s submissions as to condition 13 express a “real concern that the defendant will be criminally charged and arrested with breaches of the ESO each time he engages in drug use…even if there is a discretion to direct him to engage in treatment”. The concern is not grounded in the evidence. The evidence discloses that, since the ISO was imposed, there have been at least 4 instances where those supervising the defendant have exercised their discretion not to charge the defendant with a breach of the drug condition, despite the defendant admitting (or seemingly admitting) that he used illicit substances. That evidence suggests that those supervising the defendant are well aware of the need for a balanced approach and the importance of steering the defendant towards rehabilitation to address his substance abuse disorder.

   7. (7)

      Finally, given the evidence in the preceding paragraph it is not necessary to insert a note of the type sought by the defendant. Those supervising the defendant are, evidently, exercising their discretion in a manner that is reflected in that note.

5. [63]

   On 30 August 2023, the defendant filed a Notice of Motion seeking leave to re-open the defendant’s case in order to file further evidence and consequently made further submissions.

6. [64]

   The defendant’s submissions in support of the Motion were, in summary, as follows:

   1. (1)

      The defendant sought leave for a short re-opening of the defendant’s case, by way of written evidence and submissions only. The entirety of the evidence sought to be adduced is contained in the affidavit of Hannah Bruce dated 30 August 2023 (“HB affidavit”). The re-opening is sought on the basis that it is in the interests of justice, based on the following principles from ASIC v Rich (2006) 235 ALR 587:

   2. (2)

      As to 2(b) above, the evidence is relevant in the following ways as it demonstrates the following facts which bear upon the discussion as to condition 13:

   3. (3)

      The new evidence shows that the defendant’s drug addiction is chronic and continuing. The defendant has, in effect, returned to where he started. The risk of the “perpetual cycle” continues. His vulnerability also continues. It is also noted that the continued incidents and drug use have not resulted in any violent offending.

7. [65]

   On 31 August 2023, leave was granted to the defendant to re-open his case insofar as the re-opening was confined to issues relating to proposed condition 13. The application was not opposed by the Crown and the factors relied upon for the re-opening amply established that the application should be granted in the interests of justice.

8. [66]

   That further evidence in substance, consisted of an affidavit affirmed by Hannah Bruce on 30 August 2023 (as mentioned) which contained evidence effectively summarised above and further written submissions for both the defendant and the plaintiff, in reply.

9. [67]

   The defendant filed further submissions to the following effect:

   1. (1)

      The defendant is now in possession of evidence which demonstrates that the position at hearing is no longer the correct current position. On the basis of the new material, the correct current position is:

10. [68]

    I interpose to note that I accept this summary of the fresh evidence.

11. [69]

    The defendant’s submissions in support of deleting condition 13 continued as follows:

    1. (1)

       The defendant continues to suffer serious drug addiction and is not in a rehabilitation facility, is further supported by these most recent developments.

    2. (2)

       The new evidence demonstrates that on 21 August 2023, the defendant was arrested after a positive drug test at Rainbow Lodge.

    3. (3)

       The arrest was made by police. The police would have had the discretion to charge the defendant with a breach of bail, or a breach of the interim supervision order, or both (in this case, the discretion was exercised to arrest for a breach of bail). The police also have a discretion as to whether or not they arrest at all for a breach of bail (s 77A of the Bail Act 2013 provides that the police may take other steps such as taking no action, issuing a warning, issuing an application notice or issuing a court attendance notice). Despite the availability of alternatives, the police exercised the discretion to arrest. In future, where the defendant is not on bail, but is subject to an ESO, the police maintain a discretion to charge and arrest the defendant for a breach of the ESO (as it is a criminal offence).

    4. (4)

       The fact that police exercised their discretion to arrest the defendant for breaching his bail as a result of his drug use, rather than exercising an alternative, lends support to the submission that when the defendant is no longer subject to bail conditions but is subject to the ESO, police may exercise the discretion to arrest him for a breach of any drug use condition on an ESO. The defendant submitted that the higher likelihood of arrest and incarceration undermines efforts for rehabilitation and stability. This was a feature of his most recent instance of incarceration, where he was released unsupervised (despite the best efforts of his DSO) and then put up at a motel. As submitted at the hearing, the defendant is concerned that condition 13 may mean that the defendant is “set up to fail” – doomed to a perpetual cycle of drug use, incarceration and temporary housing, thwarting the possibility of any meaningful rehabilitation.

12. [70]

    In their written submissions, the Crown reply was as follows:

    1. (1)

       That the latest developments referred to by the defendant support, rather than detract from, the making of condition 13.

    2. (2)

       There can be no dispute that significant efforts have been made to get the defendant accepted into a rehabilitation facility however the defendant’s own behaviour has impeded these efforts.

    3. (3)

       There is no evidentiary basis for the submission that because the police exercised their discretion to arrest the defendant for breaching bail that they would do the same when the defendant is subject to the ESO.

13. [71]

    It is clear from the evidence before the Court that the defendant’s use of illicit drugs significantly contributes to his commission of violent offences and his risk profile generally. That conclusion is a fortiori given the further evidence called in the reopening of the hearing.

14. [72]

    I agree, therefore, with the State, that the defendant’s use of substances is a risk issue that must be addressed by the conditions of an ESO. Whilst I accept the defendant’s contention that treatment and adjustment from drug use is an appropriate consideration because it is directed to rehabilitation, the primary objective under the Act is the protection of the community (s 3(1)).

15. [73]

    It is regrettable that the defendant has not yet been placed in a rehabilitation facility, but I accept that the State has made strenuous effects to help the defendant attend such a facility and such effects have been thwarted, in many respects, by the defendant. There is no evidence that the State’s efforts to find a facility have diminished.

16. [74]

    I agree with the submission of the State that the existence of other legislation which prohibits drug use has not prevented Courts from imposing similar conditions to this one in the past. Further, in my view, the ESO is required to address the particular violence risk factors associated with the applicant.

17. [75]

    As aforementioned, since the ISO was imposed, there have been at least four instances where those supervising the defendant have exercised their discretion not to charge the defendant with a breach of the drug condition, despite the defendant admitting (or seemingly admitting) that he used illicit substances. The Crown is correct in its contention that those supervising the defendant are well aware of the need for a balanced approach and the importance of steering the defendant towards rehabilitation to address his substance abuse disorder.

18. [76]

    This is reassuring evidence to combat any concerns of overcriminalisation and also indicates that those supervising the defendant are aware of the importance of prioritising his rehabilitation. The condition itself recognises the need for such a discretion.

19. [77]

    I accept the submission of the State that the defendant’s submission regarding discretion is speculation. That is, I accept that challenge by the State to the submission that that if the defendant was no longer the subject of bail conditions but the subject of an ESO (incorporating condition 13), that police would exercise a discretion to arrest for a breach of the ESO for breach of the drug condition. The proposition that the police will simply revert to arrests for beaches of the ESO does not sit comfortably with the evidence that when given an opportunity to arrest for breach of bail or the ESO, police selected the former only.

20. [78]

    In any event, I consider that the amended version of condition proposed by the defendant further reduces any concerns raised regarding overcriminalisation and the thwarting of rehabilitation progress for the defendant. The alternative condition provides some further urging upon the future personnel dealing with the defendant over the next three years, when exercising their discretion, to account for any disclosure he has made and any steps that he may have taken in seeking help.

21. [79]

    The amended version of condition 13 proposed by the defendant, ensures, in my view, the appropriate balance of the objectives under s 3(1) of the Act, namely, exercise of protection of the community as well the rehabilitation of the defendant.

22. [80]

    However, I accept the State’s suggestion that the word “should” replaces the word “must” in the note attached to the amended condition, so as not to ‘direct’ the DSO in an inappropriate way.

23. [81]

    Accordingly, I have determined condition 13 should be in the following form:

Condition 38

1. [82]

   The defendant submitted the following with respect to condition 38:

   1. (1)

      The sharing of the defendant’s medical, psychological, and counselling disclosures with NSWPF disincentivises frank disclosures by the defendant to his healthcare practitioners, in circumstances where such frankness would encourage his rehabilitation and result in appropriate treatment from healthcare providers. Loss of patient confidentiality is counter-productive to the objects of the Act.

   2. (2)

      The defendant has expressed his concerns about his comfort levels in being frank with treating practitioners where that information will be shared with the DSO, the police and Corrective Services, to the effect that “I won’t want to get help. It’s just increasing my fear of all these people and that they will lock me up again”. The defendant expressed this directly to the Court at the preliminary hearing, with Fagan J stating at [15]:

   3. (3)

      There are appropriate safeguards available generally in terms of the limitations of doctor-patient confidentiality, in circumstances where an exception arises where there is a serious and imminent threat to the life, health or safety of the individual or another person, or a serious threat to public health or public safety. A similar safeguard exists with respect to psychologists, where there is an immediate and specified risk of harm. These safeguards provide some comfort that any disclosure by the defendant involving a risk of harm to himself or others would be not be shrouded in confidentiality, but subject to sufficient reporting requirements without the need for a further condition waiving the defendant’s confidentiality.

   4. (4)

      In the present case, there are sufficient safeguards imposed upon medical and psychological practitioners to report imminent harm, so as to warrant the protection of the defendant’s privacy in declining to impose the condition in its current terms.

2. [83]

   At the hearing, the defendant agreed that the terms of the condition could stop at “the DSO” and the State would have achieved its objectives in proposing the condition.

3. [84]

   The State, in written submissions, submitted that having regard to the balancing the concerns raised by the defendant, on the one hand, and the reality that there are members of the NSWPF who form part of or provide regular assistance to the ESO supervision team, on the other hand, a revised condition in this area would be appropriate as follows:

4. [85]

   At the hearing, the State clarified that the information about the defendant’s health related issues referred to in the condition would only be shared with police who are members of the ESO team or working with them in the supervision of the defendant. That is, the State agreed with the defendant that the terms of the condition could stop at the words “the DSO”. Consideration

5. [86]

   During the hearing, the State made clear that it is not the intention of condition 38 to make information available to the police generally, but only to police who are part of the supervision of the defendant. It was not disputed that the condition would have the same effect if it was limited to the acronym “DSO”.

6. [87]

   Hence, to accommodate that acquiescence made during oral submissions, I grant condition 38 amended as follows:

DIRECTIONS

1. [88]

   The State shall bring in Short Minutes of Order reflecting this judgment by 4pm, Tuesday 5 September 2023.