State of New South Wales v Colb (Preliminary)

1. [1]

   On 28 April 2023, I conducted a preliminary hearing pursuant to s 7(3) of the Crimes (High Risk Offenders) Act 2006 (the HRO Act). What follows are the reasons for the orders I made on that day.

2. [2]

   The plaintiff, the State of New South Wales (the State), commenced proceedings by Summons filed on 2 March 2023 seeking orders that the defendant, Mr Grant Colb, be subject to an Extended Supervision Order (ESO) pursuant to ss 5B and 9(1)(a) of the HRO Act for a period of 3 years subject to conditions as set out in the Schedule to the Summons. I gave leave to the plaintiff to file in court an Amended Summons dated 27 April 2023. The only amendments were to conditions contained in the Schedule to the Summons.

3. [3]

   At the preliminary hearing, the plaintiff sought only the interim and interlocutory relief as set out in prayers 1 and 2 and the ancillary order at prayer 4 of the Amended Summons as follows:-

4. [4]

   The defendant sought the following additional orders, which were consented to by the plaintiff:

5. [5]

   There was no opposition by the defendant to the making of an Interim Supervision Order (ISO) and the associated orders, although the defendant reserved his rights with respect to the imposition of an ESO and its conditions for the final hearing. I observe that the defendant is currently in custody, bail refused for a charge of common assault which is alleged to have occurred between 22 March 2023 and 24 March 2023.

6. [6]

   Both the State and the defendant provided written submissions that addressed the proposed conditions. There was some disagreement during the course of the preliminary hearing as to the wording of some of the conditions sought. There was debate about some, but not all of them. The conditions I imposed are set out at Annexure A to this judgment.

7. [7]

   I am grateful to Ms New who appeared on behalf of the State and to Ms Khalilzadeh who appeared on behalf of the defendant, for the collaborative manner in which they approached these proceedings.

Exhibits

1. [8]

   Before me were three exhibits, as follows:-

   1. (1)

      Court Documents including affidavits of James Palmer affirmed 2 March 2023 and 26 April 2023 on behalf of the State, and an affidavit of Sarah Salman sworn 21 April 2023;

   2. (2)

      Part 1 of Exhibit JP-1 (exhibited to the affidavit of Mr Palmer affirmed on 2 March 2023), which includes a great deal of historical material relating to Mr Colb, including material relevant to his conviction for murder, other offending in Queensland which preceded the murder, custodial and Community Corrections records and parole records; and

   3. (3)

      Offender Integrated Management System notes.

2. [9]

   I have had regard to the content of all three exhibits.

Background

1. [10]

   The defendant is currently 46 years old. He has an extensive criminal history which began when he was 14 years of age.

2. [11]

   Mr Colb is serving an 18-year sentence of imprisonment for the murder of David McKeever on 12 May 2005 (the index offence). This offence was committed after Mr Colb was released on a suspended sentence for an offence of inflicting grievous bodily harm (the GBH offence) on 13 April 2005. Mr Colb pleaded guilty to the index offence and was sentenced on 11 August 2006 by Latham J (see: R v Grant John Colb [2006] NSWSC 811). The sentence was fixed to commence from 20 May 2005 with a non-parole period of 14 years. The non-parole period expired on 19 May 2019 and the head sentence will expire on 19 May 2023.

3. [12]

   Mr Colb was released to parole in respect of the index offence on 6 July 2022 but it was revoked on 23 September 2022 because the defendant was found to be using methamphetamine, and there were concerns about Mr Colb’s escalating risk factors. The State Parole Authority (the SPA) rescinded this revocation of parole on 14 November 2022. However, on 12 December 2022, Mr Colb’s parole was again revoked after he tested positive to methamphetamine, and because Mr Colb had deviated from his schedule of activities and his accommodation arrangements had broken down which resulted in him becoming homeless. This revocation of parole was rescinded on 24 January 2023. Mr Colb’s current parole includes conditions such as electronic monitoring and a schedule of activities.

Legislative Framework

1. [13]

   The following sections of the HRO Act have relevance.

2. [14]

   Section 3 of the HRO Act sets out its objects:-

3. [15]

   Section 7 of the HRO Act sets out the requirement for a preliminary hearing to take place and the orders that the court must make if it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO:-

4. [16]

   Thus s 7(4) of the HRO Act provides that if, following a preliminary hearing, the Court is satisfied that the matters alleged in the supporting documents would, if proved, justify the making of an ESO, it must make the order sought by the plaintiff for the appointment of the experts to conduct examinations. If, following the preliminary hearing, the Court is not so satisfied, pursuant to section 7(5), it must dismiss the application.

5. [17]

   The effect of s 7(4) is that on an application for an ISO, the factors set out in s 9(3) are relevant. Therefore, although this is a preliminary hearing, it is necessary to look at the supporting material in Exhibits 1, 2 and 3 and to evaluate whether or not it is sufficient (if proved) to justify the making of an ESO.

6. [18]

   Section 10A of the HRO Act provides:

7. [19]

   The defendant’s head sentence expires on 19 May 2023, satisfying s 10A(a).

8. [20]

   Section 10C of the HRO Act provides:

9. [21]

   Section 5B sets out four pre-requisites for the making of an ESO. I note that the parties do not dispute that the requirements of each of subsections (a) –(c) are met in this case, and I observe that I am independently satisfied. Section 5B provides:-

10. [22]

    As to s 5B(d), it is the key provision with respect to the making of an ESO.

11. [23]

    I observe that s 9(2) of the HRO Act provides that, in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration.” This is consistent with the primary object of the HRO Act as set out in s 3(1).

12. [24]

    Section 9(3) sets out the matters to which the Court must have regard in its determination as to whether or not an ESO should be imposed:-

13. [25]

    As to conditions that may be imposed when making either an ISO or an ESO, s 11 provides:

14. [26]

    As I have already indicated, in this matter there was no real dispute about whether or not an ISO should be made. There were only brief disputes about conditions, which were easily resolved during the hearing.

15. [27]

    In its written submissions, the State helpfully set out the approach the court is required to take in this matter. I note that Ms Khalilizadeh agrees with that approach. First, I must determine whether the court can order an ESO, which is governed by the “gateway” provision in s 5B. Second, I must determine whether the court should order an ESO or otherwise dismiss the application, taking into account the matters the Court must consider in s 9(3).

16. [28]

    The evidence discloses (and it is not disputed) that Mr Colb has been sentenced to imprisonment for a serious offence (murder) satisfying s 5B(a), that the application was commenced prior to 19 May 2023 when Mr Colb was on parole as a “supervised offender” satisfying s 5B(b) and that the application meets the timing requirements of s 5B(c).

17. [29]

    As to s 5B(d), I must consider the factors in s 9(3), which is an evaluative task of assessing risk.

Section 9(3) Factors

1. [30]

   Mr Colb had a deprived, disadvantaged and dysfunctional childhood, which included a history of being the victim of significant assaults for which he now has complex trauma issues. I observe that this background provides context for his criminal history (to which see below). He lived with his father, his mother and then in various institutions. He was described by his father as an “uncontrollable child” who refused to attend school. At age 13 he became a ward of the State and was placed in foster care in Victoria for 8 weeks. Thereafter, Mr Colb was variably homeless or housed in juvenile justice facilities. At age 16 or 17, Mr Colb began engaging in sex work in Kings Cross to make money to fund his drug habit. Mr Colb has a history of chronic polysubstance use, having commenced the use of cannabis at age 12 or 13. He was using heroin from age 16 and cocaine by age 18 or 19. In the days leading up to the index offence, he was regularly using methamphetamines and amphetamines.

2. [31]

   In 1993, when Mr Colb was 15 years old, he hitchhiked in Surfers Paradise and was brutally assaulted by a man who picked him up in his car. Mr Colb has reported being similarly assaulted numerous times in prison, including on an occasion in Queensland in 2003. After that assault, Mr Colb repeatedly self-harmed and was placed on suicide watch. He has been diagnosed with post-traumatic stress disorder (PTSD).

3. [32]

   Mr Colb’s criminal history began when we has 14 years old. He was convicted of an offence almost every year from age 14 up to the commission of the index offence. The charges between 1991 and 1996 largely involved property crime. The first time Mr Colb served a custodial sentence was in 1995 when he was sentenced to 9 months for robbery in company.

4. [33]

   In 1996, Mr Colb’s offending escalated in violence when he committed an offence of assault occasioning actual bodily harm (AOABH). Thereafter, Mr Colb continued to commit theft and drug related offences, including offences for which he was sentenced to 6 months imprisonment in 1997. He was further imprisoned in 1998 and 1999 for several driving and theft offences. He was convicted of theft and AOABH in the ACT and convicted and imprisoned in Victoria in June 1999 for possessing heroin and the possession of goods suspected of being stolen. In 2002, Mr Colb was convicted in Queensland of stealing and drug related offences. In July 2002, Mr Colb was arrested and taken into custody for the GBH offence for which he was sentenced on 13 April 2005 to a 5 year suspended sentence without supervision.

5. [34]

   On 12 May 2005, while serving the suspended sentence for the GBH offence, Mr Colb murdered Mr McKeever, after going to visit him in South Duras on that day. Mr Colb stayed the night with Mr McKeever. Mr McKeever was found dead the next morning by his mother. He had suffered several injuries including stab wounds to his face and neck.

6. [35]

   Mr Colb was arrested on 20 May 2005. In an ERISP, when Mr Colb was asked why he killed Mr McKeever, he said that when he was 16 years old, he and his brother were indecently assaulted by Mr McKeever on a beach at Bateman’s Bay. Mr Colb’s brother, however, denied that this incident occurred.

7. [36]

   Mr Colb pleaded guilty on 11 August 2006 and he was sentenced by Latham J. In her remarks on sentence, her Honour found that there was no direct evidence of a sexual relationship between Mr Colb and Mr McKeever, but that Mr Colb exploited Mr McKeever’s sexual interest in him in the hope that he would continue to support him when needed. Her Honour found that this was consistent with Mr Colb’s conflicted sexual identity, in the context of his experience living on the streets and engaging in sex work with older men in return for means of support.

8. [37]

   Her Honour was not prepared to make a finding that Mr McKeever had assaulted Mr Colb and his brother. However, she found that Mr McKeever did or said something that was interpreted by Mr Colb as a betrayal, or as a sexual advance, which her Honour found was an unremarkable outcome in the context of his disturbed psychiatric state arising from past traumatic assaults.

9. [38]

   On 28 July 2002, Mr Colb and a female entered the unit of the victim to steal back a mobile phone that they had earlier sold to the victim. Mr Colb told police that the female initially tried to take the mobile phone, but the victim pushed her away, so he punched the victim once with a clenched fist before running out of the unit. The victim was hospitalised with a fractured skull and skull fragments lodged in his brain, for which he required significant surgery. The victim also suffered substantial facial and head bruising and lacerations. The victim was unable to recall the object that had struck him and he denied assaulting or provoking Mr Colb prior to the attack.

10. [39]

    Mr Colb pleaded guilty to robbery with actual violence in company and inflicting grievous bodily harm and he was sentenced to the 5-year suspended sentence referred to above. The sentencing judge noted that Mr Colb had worked and completed courses whilst in custody, that he had stopped using illicit substances and that he had “embarked on his own rehabilitation.” Within a month, Mr Colb committed the index offence

11. [40]

    Dr Michael Giuffrida, forensic psychiatrist, prepared reports dated 26 May 2006 (the May report) and 22 June 2006 (the June report). They were commissioned by Legal Aid for Mr Colb’s sentence hearing with respect to the index offence. These reports are now 17 years old.

12. [41]

    In the May report, Dr Giuffrida stated that Mr Colb had a history of using illicit drugs, and that Mr Colb reported amphetamine and methamphetamine use prior to the index offence. He also summarised Mr Colb’s history of sex work and the significant assaults perpetrated upon him. The State submits that Dr Giuffrida’s comments are relevant to evaluating Mr Colb’s current risk of committing another serious violence offence, given his relapse to using methamphetamine since being released to parole. With respect to Mr Colb’s history of engaging in sex work and the history of significant assaults against him, the State submits that Mr Colb’s complex trauma issues were never addressed whilst he was in custody, and this fact is relevant to evaluating the current risk of repeat serious violence offending.

13. [42]

    Dr Giuffrida was of the view that Mr Colb had an “extremely high level of dependency” on staff generally, and in particular the medical staff in prison. Dr Giuffrida offered an opinion that those staff members may have fulfilled Mr Colb’s emotional needs. Dr Giuffrida referred to this as a “seemingly gross even total dependence” and “institutionalisation with its inevitable effects”. Dr Giuffrida believed that Mr Colb’s emotional needs were not met following his release from custody in April 2005. The State submits, based on Dr Giuffrida’s findings, that Mr Colb requires high intensity supervision and support when he is returned to the community.

14. [43]

    In the May report, Dr Giuffrida diagnosed Mr Colb with:-

    1. (1)

       PTSD as a result of his history of being violently assaulted;

    2. (2)

       Learning disorders in childhood, with his adolescent records suggesting that he suffered from Attention Deficit Hyperactivity Disorder;

    3. (3)

       Conduct Disorder in childhood which manifested in aggression, destruction of property, deceitfulness, lying and from age 12 onwards “serious violation of societal rules and a persistent criminal career”;

    4. (4)

       Antisocial Personality Disorder (ASPD) which manifests in an exacerbation of the behaviours associated with his Conduct Disorder;

    5. (5)

       Borderline Personality Disorder with a “pervasive pattern of severe instability and interpersonal relationships and self-image, with marked impulsivity in the full range of contexts”; and

    6. (6)

       Substance Abuse Disorder.

15. [44]

    In the June report, Dr Giuffrida said that upon his release to the community, Mr Colb would require ongoing support, including counselling and supervised accommodation. In Dr Giuffrida’s view, extensive support and supervision would substantially reduce the risk of harm to himself and to the community.

16. [45]

    Dr Beech, psychologist, prepared a report for the sentence proceedings in respect of the GBH offence. Dr Beech reported Mr Colb’s claims of significant assault, both in prison and as a 15 year old, and the significant deterioration of his mental health as a result of PTSD and self-harm. In Dr Beech’s opinion, Mr Colb had a “highly prejudicial childhood with a deterioration into early onset Conduct Disorder with a later development of significant antisocial activities in a context of polysubstance abuse,” and diagnosed PTSD and ASPD.

17. [46]

    Ms Patrycja Luketic, senior psychologist at the Serious Offenders Assessment Unit, prepared a comprehensive Risk Assessment Report (RAR) on 4 October 2022. In my opinion, it is the most important document tendered in the proceedings because of its contemporaneity. Ms Luketic notes concerns about the relationships Mr Colb was forming whilst on parole with vulnerable people in the community, including a 16 year old boy and people with limited cognitive capacity. In Ms Luketic’s opinion, Mr Colb’s behaviour suggests that he is willing to utilise support structures available to him, but his institutionalisation creates significant obstacles that may cause him to relapse, which will increase the risk of him committing further serious violence offences.

18. [47]

    In Ms Luketic’s opinion, Mr Colb has numerous dynamic risk factors predictive of a risk of repeat violent offending. They include:-

19. [48]

    In Ms Luketic’s opinion, if Mr Colb were subject to an ESO, he would receive intensive case management and supervision which would significantly mitigate the risk of him committing a further serious violence offence.

20. [49]

    Noting the limitations of risk assessment tools, Ms Luketic assessed Mr Colb as being in the high risk category for repeat violent offending. In coming to this conclusion, Ms Luketic applied or noted other experts’ application of the Level of Service Inventory-Revised tool and the Violence Risk Scale.

21. [50]

    The RMR dated 22 November 2022 was prepared by Ashley Newby, Community Corrections Officer, Extended Supervision Team. Similarly to the RAR, it is amongst the most contemporaneous of the documents tendered. Ms Newby found the same criminogenic needs as identified by Ms Luketic. At the time that the RMR was written, Mr Colb’s parole had been revoked and he had returned to a methadone program. Mr Colb told Ms Newby that he was not taking his prescribed mental health medication because of how it made him “feel”. Ms Newby commented that Mr Colb was initially compliant with parole and that he engaged with support services. However his willingness to participate in supervision declined overtime. Concerning behaviour included the use of methamphetamines, communication with a 16 year old male, associating with a child sex offender subject to an ESO and signing up to dating websites. Ms Newby recommends measures to assist in risk management should Mr Colb be released on an ESO.

22. [51]

    Some of the matters detailed in the parole material demonstrate that:-

    1. (1)

       As of February 2019 there were concerns for community safety, and it was not recommended that Mr Colb be released to parole;

    2. (2)

       In March 2020, after Mr Colb completed the VOTP, he still presented with dynamic risk factors indicating repeat violent offending, although he expressed a willingness to comply with high intensity supervision. Parole was not recommended and was refused;

    3. (3)

       In March 2021, parole was (again) not recommended because it was considered that Mr Colb needed to complete addiction treatment programs, that there was no suitable accommodation available upon his release and there was a lack of progression to ready Mr Colb for release;

    4. (4)

       By about October and November 2021, parole was recommended because of Mr Colb’s “improved behaviour, community support and the limited time available for supervision on parole.” However due to a breakdown in his relationships with his siblings and the unavailability of suitable accommodation, parole was not recommended in December 2021;

    5. (5)

       Mr Colb was released to parole on 6 July 2022. In August 2022, he disclosed that he had used methamphetamines. It was also reported that he had been associating with a known sex offender. Conditions were put in place to address these behaviours, but parole was revoked on 22 September 2022;

    6. (6)

       The September 2022 revocation was rescinded by the SPA on 14 November 2022. However Mr Colb’s parole was again revoked on 14 December 2022 due to Mr Colb breaching his schedule. The Community Corrections Officer noted in his breach of parole report that Mr Colb was “superficially compliant” with parole. This revocation was rescinded on 24 January 2023; and

    7. (7)

       Mr Colb is currently in custody for a charge of common assault allegedly committed whilst on parole.

23. [52]

    Mr Colb completed the VOTP in May 2020 and attended maintenance sessions from that time until his first release to parole in 2022. It was reported that Mr Colb engaged well in sessions but failed to engage strategies aimed at mitigating his emotional dysregulation and/or risk of violence. There were varying accounts about Mr Colb’s behaviour. Whilst there were some gains made across various dynamic risk factors, further work was said to be needed to assist Mr Colb in employing strategies to manage his risk factors.

24. [53]

    The RAR summarised programs that Mr Colb completed in custody. These include the Controlling Anger and Learning to Manage program, the EQUIPS program and the CONNECT program, which is a general therapeutic program that addresses logic and emotional thinking, acceptance, communication and resilience. Mr Colb has also been on the methadone program since 2010.

Plaintiff’s submissions

1. [54]

   The State submits that the court can be satisfied that the evidence, if proved, justifies the making of an ESO. In particular, the State says that the Court can be satisfied to a high degree of probability that Mr Colb poses an unacceptable risk of committing a serious violence offence unless he is supervised and that an ESO would be justified and appropriate because:-

   1. (1)

      Mr Colb presents with a range of dynamic risk factors including:

   2. (2)

      Risk assessment tools categorise Mr Colb in the high risk category of repeat violent offending; and

   3. (3)

      Experts believe that Mr Colb is institutionalised and that he has a high level of criminogenic needs which require intensive supervision, support services, ongoing therapy and monitoring to mitigate the risk of reoffending.

Defendant’s position

1. [55]

   The defendant did not oppose the making of an ISO and but reserved his position with respect to an ESO until the final hearing of the matter.

Conclusion

1. [56]

   Having regard to the evidence before me, the thoughtful submissions of counsel and the matters identified in s 9(3) of the HRO Act, I was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In my opinion, those matters would, if proved, satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is released back into the community and not kept under supervision. For these reasons, I made the orders sought and the conditions that are annexed to this judgment.

2. [57]

   Finally, I note three matters that arose during the hearing. First, it appears that Mr Colb has had contact with the National Disability Insurance Scheme (NDIS). It may be that he has been provided with a plan or a package. Any information about Mr Colb’s involvement with the NDIS will be highly relevant to the court hearing the final application. Second, there is a strong suggestion in the evidence that Mr Colb, perhaps 30 years ago, suffered a traumatic brain injury. If that is so, then the effect of that injury on his mental and physical function will likewise be highly relevant to the final application. Third, if the brain injury is established, it may be appropriate for him to undergo neuropsychological testing.

Orders

1. [58]

   The orders I made on 28 April 2023 are as follows:-

   1. (1)

      An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

   2. (2)

      An order:

   3. (3)

      The parties to have liberty to relist the matter on two days’ notice, including but not limited to circumstances where:

   4. (4)

      Where the defendant is required to attend the examinations referred to in Order (1) above, and where criminal proceedings against the defendant are either still on foot or have been finalised prior to the examination for a period of 28 days or less, the practitioners conducting psychological and/or psychiatric examinations of the defendant are directed to not ask the defendant any questions about or arising from those charges and their criminal proceedings. This order does not prevent the experts referring to the fact of the charges and the allegations in their reports, if the experts consider those aspects relevant to their assessment of the defendant’s risk(s).

   5. (5)

      Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of this Court and, if any application for access is made by a non-party in respect of that document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

   6. (6)

      The matter is stood over to the High Risk Offenders list on 11 May 2023.