State of New South Wales v Carney (Final)

By a further amended summons dated 21 August 2019, the plaintiff seeks orders:

It should be noted that since the commencement of the proceedings, the plaintiff has amended Schedule A by removing a number of the conditions which were originally sought. [1] Those amendments reflect the fact that the defendant is currently in receipt of treatment, and is subject to a protective regime which has been implemented and supported by a number of persons, including, in particular, his mother. That regime includes a Community Treatment Order (“CTO”) which I have discussed further below.

On 28 May 2019 Garling J made an order that the defendant be subject to an Interim Supervision Order (“ISO”) on and from 24 June 2019. That order expires on 15 September 2019. On that occasion his Honour also ordered, pursuant to s 7(4) of the Act, that two qualified psychiatrists, psychologists, or any combination of such persons, conduct separate examinations of the defendant and furnish reports to the court as to the result of the examinations. [2] Pursuant to that order, the Court has received reports from Dr Adam Martin, Psychiatrist, of 29 July 2019, and Dr Richard Furst, Psychiatrist, of 1 August 2019.

The following affidavits were read by the plaintiff:

Ms Cieplucha and Ms Grabham gave oral evidence at the hearing.

The following affidavits were read by the defendant:

As previously noted, the Court has also received reports of Dr Martin and Dr Furst. Dr Martin gave oral evidence at the hearing.

Section 5B of the Act is in the following terms:

The provisions of 5B require the Court to be satisfied of four matters before the discretion to make an extended supervision order is enlivened, namely that:

The term “serious offence” is defined in s 4 of the Act as either a “serious sex offence” or a “serious violence offence”. “Serious violence offence” is defined in s 5A(1) in the following terms:

The satisfaction to a “high degree of probability” which is required by s 5B(d) constitutes a standard of proof which is higher than the civil standard, but lower than criminal standard. [3]

The term “unacceptable risk” is not defined in the Act. However, its meaning is to be determined having regard to its context and purpose. [4] In State of NSW v Thomas (Preliminary) [5] Hulme J concluded that a risk will be unacceptable if it is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made. [6]

The concept of unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate. [7] A risk is unacceptable if there is a real or substantial chance of it materialising, although the chance of materialisation need not be more likely than not. The question to be determined is whether the Court is satisfied that the facts and circumstances which have been proved provide a firm foundation for a conclusion that there is a real or substantial chance of the defendant committing a serious violence offence if he is not subject to an ESO.

Counsel for the defendant has expressly conceded each of the matters in [9](a) to (c) above. The only issue for my determination is that in [9](d), namely whether I can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

The following summary of the defendant’s history of offending is not in dispute and is drawn from the written submissions of the plaintiff. [8]

On 28 January 2006, in the company of a co-offender and a juvenile, the defendant entered the home of another person (“the deceased”) to purchase a quantity of cannabis. He repeatedly hit the deceased with a metal pole. Following a trial, the defendant was found guilty of murder by a jury and was sentenced to imprisonment for 22 years with a non-parole period of 16 years. However, his conviction was quashed by the Court of Criminal Appeal and a re-trial was ordered. [9]

At his re-trial, the defendant was found not guilty of murder, but guilty of manslaughter. He was sentenced by Schmidt J on 7 November 2012 [10] to imprisonment for 9 years with a non-parole period of 6 years. In sentencing the defendant, her Honour concluded that he had engaged in excessive self-defence which was grossly disproportionate to the threat which was posed to him, [11] and had repeatedly hit the deceased in the head with a metal pole, not only when the deceased was standing, but after he had fallen onto a bed. [12]

In terms of the defendant’s mental state at the time of the offending, her Honour said the following: [13]

Her Honour made it clear [14] that her finding that the defendant had good prospects of rehabilitation was predicated on the assumption that the defendant would be abstinent from drugs and alcohol, and would remain compliant with anti-psychotic medication which had resulted in his mental illness going into remission.

On 26 December 2006 the defendant was pursued by police driving recklessly through red lights and on the wrong side of the road in an effort to avoid arrest. Eventually, the defendant stopped his vehicle. As two policemen approached him, the defendant removed a rifle from his vehicle before running through a vacant area of land next to a bus shelter, where there was a bus carrying several passengers. The defendant fired a number of rounds towards the police. The police took cover behind their vehicle, which was struck by some of the rounds which were fired. The defendant also fired in the direction of a police helicopter which had been deployed to pursue him. During this time he emptied and reloaded the firearm which was in his possession. The defendant had previously called his mother and brother, who eventually came to the vicinity, whereupon the defendant dropped the rifle and was arrested. He later pleaded guilty to the following offences:

He was sentenced in respect of those matters as follows:

All sentences were ordered to be served concurrently.

In imposing sentence, his Honour Judge Christie QC found [16] that the defendant was unstable at the time of the offending. In reaching that conclusion, his Honour had regard to an expert report from Professor David Greenberg, [17] who expressed the opinion that although at the time of the offending the defendant was suffering paranoid thoughts, his mental state had since stabilised with psychiatric medication.

On 27 December 2006 the defendant was travelling in a Corrective Services truck when he assaulted another inmate. He pleaded guilty to a charge of assault occasioning actual bodily harm and was sentenced to 8 months imprisonment.

On 24 December 2015, whilst working in the kitchen of the Goulburn Correctional Centre, the defendant lunged towards a fellow inmate with a knife following an argument. The victim fell to the floor, following which the defendant stood over him and stabbed him multiple times. The defendant was convicted of one count of reckless wounding and was sentenced to 20 months imprisonment, with a non-parole period of 12 months.

On 26 January 2016 the defendant allegedly assaulted another inmate while he was in bed asleep. It was suspected that the defendant had taken an illegal substance at the time but no further action was taken in relation to the matter.

On 3 March 2016 the defendant was being transported from custody to Nepean Hospital. He was seated in the rear passenger seat of a Corrective Services vehicle and was handcuffed at the front, attached to a waist restraint, and had leg shackles around his ankles. As he was getting out of the vehicle, the defendant broke free of the officers who were escorting him. He ran a distance of 20 metres across a car park before being apprehended. He was convicted of attempting to escape from lawful custody. The matter was disposed of pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

I have set out the plaintiff’s evidence above. [22] The following aspects of that evidence are of particular significance.

Samuel Ardasinski, a senior Psychologist with Corrective Services NSW, prepared a report dated 13 September 2018. [23] In summary, [24] he concluded that the defendant presented a medium risk of violent re-offending, relative to other male offenders. He considered that the defendant was partially treated with respect to his offending, in the sense that he had completed some intervention aimed at addressing criminal violence, but said that he had done nothing in terms of a relapse prevention plan.

Mr Ardasinski also noted [25] that the defendant had been formally diagnosed with a psychotic illness when he entered custody, and had been treated with various anti-psychotic medications over the years. He expressed the view that the defendant had had insufficient time, in less restrictive settings, to demonstrate any significant behavioural change. He also expressed the view that if the defendant were subject to an ESO, the mitigation of any future risk may be enhanced by ongoing community supervision and support, in circumstances where he had never been subject to such supervision. He said that the defendant would require assistance to monitor his transition to community-based responsibilities, and to maintain his mental health and behavioural stability.

Mr Ardasinski also said: [26]

Mr Ardasinski went on to say: [27]

Ms Cieplucha is the Chief Psychologist of Risk Management Programs at Corrective Services NSW. In that capacity she supervises Mr Ardasinski and is responsible for reviewing his report. On the basis of that report, and the material which had been available to Mr Ardasinski, Ms Cieplucha said in her affidavit: [28]

Ms Cieplucha concluded: [29]

When cross-examined, Ms Cieplucha confirmed her view that the defendant’s current support network was “comprehensive” [30] and said that she understood that it included: [31]

Ms Cieplucha accepted [32] that few persons in the defendant’s position had as comprehensive a support network available to them. She also accepted [33] that her review of case notes indicated that the defendant was maintaining compliance with his medication regime, and [34] that the defendant was currently behaviourally stable, and compliant with supervision and reporting obligations. She was then asked: [35]

In re-examination, Ms Cieplucha clarified that her opinion as to the appropriateness of the defendant’s current support network assumed the inclusion of support from the team which would administer any ESO: [36]

Mr Grabham is the Operational Governance Officer of the Extended Supervision Order team in Corrective Services, NSW. In her first affidavit, she set out the nature and extent of the supervision implemented by her team in respect of offenders who are subject to an ESO. In her second affidavit, Ms Grabham explained [37] that the conditions which were originally sought to be imposed on the defendant had been amended, and “tailored to the defendant’s unique circumstances and identified risk factors, taking into account matters raised in the expert reports”. Ms Grabham also said: [38]

In cross-examination, Ms Grabham acknowledged [39] that the defendant had a comprehensive regime of treatment providers at the present time, and that no services had been added by her team during the recent period during which the defendant had been subject to the order made by Garling J. She also accepted that:

Ms Grabham was then asked: [43]

Ms Grabham accepted [44] that the defendant’s current support network included his parents, his extended family, a Community Mental Health Team, the Clozapine Clinic, personnel from “Partners in Recovery” (an organisation providing support to persons suffering from mental illness), a General Practitioner, a Psychiatrist, a drug and alcohol counsellor, and two case managers. In these circumstances, Ms Grabham’s attention was drawn to that part of her second affidavit [45] in which she had asserted that the defendant’s support network was limited to his family unit: [46]

Dr Martin diagnosed the defendant with schizophrenia. [47] He expressed the view, [48] based on the defendant’s account that he was abstinent from all substances, that he appeared to be in remission. However, Dr Martin said that substance abuse disorders should be regarded as a long-term vulnerability. He also thought it noteworthy that in 2017, whilst in custody, the defendant was sanctioned for failing a prescribed drug test. Dr Martin concluded: [49]

Dr Martin was asked to specifically consider the question of whether the defendant posed a risk of committing a further serious violence offence. In this respect he said: [50]

Dr Martin was also asked [51] to assess the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious violence offence. In this regard he thought it relevant that the defendant had a history of:

Dr Martin expressed the view [52] that the defendant could not be diagnosed with a personality disorder, and thought that his previously antisocial behaviour could be seen in the context of major mental illness and substance use.

Significantly, Dr Martin said [53] that the defendant demonstrated a reasonable insight into the nature of his conditions, the importance of taking medication, and the importance of avoiding substances. He also noted that the defendant did not express any violent ideation or intent, that he did not appear to be suffering symptoms of any current mental illness, that there was no apparent current or recent instability, and that he appeared to have responded reasonably well to treatment and supervision in more recent times. [54]

In terms of risk management, Dr Martin said [55] that the defendant appeared to have available to him reasonable professional services and plans, a stable living situation, and good personal support. He considered it likely that the defendant would maintain a reasonable response to treatment and supervision, and said that whilst he may have limited coping skills, he appeared to have responded well to his situation, and did not appear to be unduly stressed by the future, including any proposed ESO.

Having regard to all of these matters, Dr Martin said: [56]

Dr Martin was also asked to express his opinion as to whether, in the event that he considered that the defendant posed a risk of committing a further serious violent offence, such a risk could be managed in the community. In this regard, he said: [57]

In terms of the proposed conditions attaching to any ESO, Dr Martin said: [58]

Whilst acknowledging that the defendant was currently abstinent from illicit drugs, and that this was an obviously positive factor in mitigating any future risk, Dr Martin said: [59]

Dr Martin concluded: [60]

In his evidence before me, Dr Martin agreed [61] that in addition to the support provided by his family, the defendant now had a number of treatment providers available to him. He specifically agreed [62] that the defendant was:

In relation to these arrangements, Dr Martin said: [63]

Dr Martin agreed [64] that under the terms of the CTO, the defendant had fortnightly contact with his case worker, as well as contact with “Partners in Recovery”. He also agreed [65] that the defendant was living in an appropriate home with his family, had a supportive domestic network, and that his mother had previously contacted services for assistance. Dr Martin was then asked: [66]

Despite the extensive support network which is already in place, Dr Martin remained of the view that the defendant continued to pose a risk of committing a further serious violent offence. [67] He was asked: [68]

In terms of the last answer in the passage immediately above, Dr Martin conceded that when the condition of a mentally ill person deteriorates, the people who normally detect such deterioration in the first instance are those who are closest to the person, and who see him the most frequently. [69] Dr Martin made that concession in the context of evidence that the defendant lives with his parents: [70]

Dr Furst provided a report of 1 August 2019. He too diagnosed the defendant with schizophrenia, [71] on the basis of recurrent symptoms of paranoid thinking, auditory hallucinations, mood disturbance and paranoid delusions, both as reported by the defendant and as noted in relevant medical records.

Dr Furst concluded [72] that the defendant was at a low to moderate risk of causing serious physical harm to others, and he specifically stated that there were no indications of any imminent risk of violence to others posed by the defendant. He expressed the view [73] that a risk assessment of the defendant, and the clinical observations of the defendant over a number of years, suggested that he was most at risk of serious violence, or committing a serious violence offence, when he was acutely psychotic. He said: [74]

Dr Furst then said: [75]

Having noted [76] that the defendant was already subject to a CTO, Dr Furst concluded: [77]

He went on to say: [78]

Having regard to all of these factors, Dr Furst concluded [79] that an ESO was not necessary, and that the current provisions of the CTO and those under the Mental Health Act 2007 (NSW) were adequate in terms of addressing any risk.

I have already noted that two affidavits of the defendant’s mother, Gail Carney, were read without objection. In the first of those affidavits Mrs Carney explained [80] that she and her husband live with the defendant, their other son, their daughter, and a grandchild. [81] She explained [82] that if she is not with the defendant every day, her husband, or other family members, or friends, are with him. Mrs Carney said [83] that the treatment of the defendant’s medical condition was her primary focus, and that she had undertaken a course over 12 weeks at Liverpool Hospital which was designed to assist families supporting patients with schizophrenia. As a consequence of this, and also as a consequence of having had to deal with mental illness in respect of other members of her family, Mrs Carney emphasised [84] that she was aware of the defendant’s symptoms, and was alert to any “warning signals” that he may be mentally unwell. She cited, [85] as an example, a tendency on the part of the defendant to withdraw from the family at times when he was unwell, and said [86] that based upon her previous experience, she believed that she would become aware of any symptoms of concern, and would therefore be alert to any circumstances which might require external intervention. She also explained [87] that the defendant is always accompanied to outside appointments.

In her second affidavit, Mrs Carney confirmed [88] that the defendant’s family circumstances and living arrangements as set out in the her first affidavit had not changed. Mrs Carney continues to support the defendant by (inter alia) attending the Clozapine Clinic with him, monitoring his treatment by Dr Tablante, liaising with medical practitioners as to her own observations of the defendant’s health and behaviour, and managing his diary. [89] She also expressed the view [90] that the conditions imposed pursuant to an ESO may be counter-productive in various ways, an opinion not inconsistent with that expressed by Dr Furst.

Annexed to Mrs Carney’s second affidavit is a copy of the CTO imposed upon the defendant by the Mental Health Review Tribunal on 1 August 2019 for a period of 6 months. Pursuant to that order, the defendant is obliged to:

Also annexed to the same affidavit [91] was a report from Dr Tablante, the defendant’s treating General Practitioner, which stated (inter alia):

Mr Manzione provided an affidavit of 23 August 2019. He is a transition worker employed by “One Door Mental Health” who administers the “Partners in Recovery” program, in which the defendant is a participant, and which is designed to transition persons into the National Disability Insurance Scheme. Mr Manzione described [92] the defendant as having been “highly engaged” throughout the program, and said that he had achieved “key outcomes while completing all his obligations”. Those key outcomes [93] included:

Ms Hall, the defendant’s solicitor, provided an affidavit of 30 August 2019 to which she annexed a report of Xenia Hagidemetriou, a transition worker with the Community Restorative Centre, an organisation dedicated to supporting prisoners, ex-prisoners and their families, and which operates a program entitled “the Transitional Alcohol and Other Drugs Project”. The defendant has been engaged in weekly contact with that project since July 2018.

Ms Hagidemetriou said the following:

In addition to any other matter which might be considered relevant, the Act mandates that I consider certain matters insofar as they are applicable.

Reports were received from Dr Martin and Dr Furst, and their opinions have been summarised above.

As I have outlined, Dr Martin expressed the view that an ESO was both appropriate and necessary. One of the fundamental reasons for that view stemmed from what Dr Martin saw as risks which were not wholly addressed by the CTO. He also concluded that absent an ESO, the management of the defendant’s future risk(s) would necessarily depend mainly on the support and co-operation of his family. However, it must be emphasised, in light of the unchallenged evidence of Mrs Carney, that the support of the defendant’s family is both constant and unequivocal. Importantly, Dr Martin accepted that in addition to that support, the defendant now had the benefit of a number of treatment providers.

The unchallenged opinion of Dr Furst was that an ESO would add little to the defendant’s current clinical management, or to his longer-term risk management, beyond what is in place, and beyond that provided by the Mental Health Act 2007 (NSW). Moreover, Dr Furst expressed a view that the imposition of an ESO may be counter-productive, a view shared by the defendant’s mother.

There are other medical assessments which have been prepared in relation to the defendant over a number of years. Generally speaking, they do not directly address likelihood of the defendant committing a further serious offence. Moreover, many of them date back a number of years. Nevertheless, I have taken them into account and they may be summarised as follows:

The terms of the defendant’s CTO have been previously set out. [105]

I have already noted the opinions of Mr Ardasinksi [106] and the evidence of Ms Cieplucha [107] in this respect. Although Mr Ardasinski concluded that the defendant presented a medium risk of violent offending relative to other male offenders, it must be emphasised that his assessment was conducted, and his opinion expressed, almost 12 months ago. Moreover, it is evident that such opinion was partly based upon a conclusion that the defendant had not had, at that point, sufficient time in a non-custodial setting to demonstrate any significant behavioural change. The defendant has now been in the community for an extended period of time. The evidence before me establishes that in that time, he has displayed the significant behavioural change which was absent at the time that Mr Ardasinski prepared his report. He has done so with the assistance of the support network described by Ms Cieplucha as “comprehensive”.

A pre-release report of 24 March 2016 [108] noted that the defendant had (inter alia) demonstrated a reluctance to abstain from illicit drugs, on the basis of which an opinion was formed that he was unwilling to adapt to normal community life. In those circumstances parole was not recommended. Accepting that one of the factors relevant to a determination of the likelihood of committing a further serious offence is the defendant’s attitude to his previous offending, it is relevant to note that in the same report [109] it was noted that the defendant was “defiant” when discussing his offending and that he tended to minimise that offending at the same time as stating that he was remorseful.

In a subsequent report of 19 April 2017 [110] it was noted that the defendant’s family remained supportive, and that the defendant had reached the point where he had become more amenable to discussing his offending behaviour. However, in circumstances where his behaviour had been reported as inconsistent, and where his mother had expressed a view that the he was mentally ill, parole was not recommended.

In a report prepared in 2018, [111] the defendant was described as “forthcoming” when discussing the index offence. It was noted that he appeared to accept responsibility, and that such acceptance was mixed with self-concern. An improvement in his behaviour was noted, as was a concern that he continued to engage in drug use and was suspected of diverting his prescribed medication. A supplementary report of 24 August 2018 [112] described him as “settled and compliant” and expressed an anticipation that a Community Treatment Order would be made upon his release to encourage his continued compliance with mental health treatment.

It is apparent from the reports of Dr Martin [113] and Dr Furst [114] that the position has now been reached whereby the defendant acknowledges his offending, has expressed remorse, and takes responsibility for his actions.

The defendant completed a program at Goulburn Correctional Centre in 2009 entitled “Preventing and Managing Relapse”. [115] He was deemed ineligible for alcohol and drug related programs in 2016. [116]

In 2018 he was not afforded the opportunity to participate in such programs due to his mental health treatment classification, [117] and was similarly deemed ineligible to participate in violent offender treatment programs, although he expressed a willingness to do so. [118]

The terms of the current CTO have already been noted. [119] The plaintiff has expressly conceded [120] that the defendant has complied with all conditions of his parole and that there is significant external support available to him. [121]

There is no dispute that the defendant has complied with his parole obligations, the conditions of the ISO imposed by Garling J, and the conditions of his current CTO. There is no reason to suggest that he would not comply with any obligations imposed by an ESO if such an order were made.

There is evidence that whilst in custody for the index offending, the defendant was the subject of five citations relating to violence, and eight relating to drug taking. There were also periods in which he was placed into segregation. [122] There is evidence that the citations in respect of violent behaviour were connected to the defendant’s active psychosis. [123] Those incidents, and indeed the defendant’s history of offending, come against a background of a history of alcohol consumption which commenced at about the age of 14, and illicit drug use which commenced at about the age of 17. [124] I have previously noted the fact [125] that the defendant had only limited access to rehabilitation programs whilst in custody. What must be said however is that the evidence establishes that since these events, the defendant has come to terms with, and has acknowledged, his offending and has made significant positive steps towards his rehabilitation.

In written submissions, counsel for the plaintiff made reference to the various assessments of Mr Ardasinski, Dr Martin and Dr Furst. Counsel submitted that the defendant would always pose a moderate risk of committing another serious violent offence, and that the evidence established that the defendant’s risk of committing such an offence was inextricably linked to his diagnosed psychiatric illness which was enduring, as was his diagnosis of substance abuse.

Counsel submitted that these diagnoses, combined with historical factors, led to a conclusion that the defendant’s risk assessment was unlikely to change over time. It was submitted that in all of the circumstances, I would be satisfied that the defendant would always pose an unacceptable risk of committing another serious offence.

In oral submissions, counsel for the plaintiff submitted that a principal concern from the point of view of the plaintiff’s risk of further offending stemmed from the fact that the CTO was operative only until February 2020, and may not be extended beyond that time. It was submitted that if this were to eventuate, a significant part of the defendant’s current support network would evaporate. Counsel further submitted that because of the defendant’s history of violent offending, an ESO remained appropriate, in circumstances where each instance of violent offending had occurred in association with a deterioration in the defendant’s mental health. Counsel also relied on the specific findings of Schmidt J when sentencing the defendant.

Counsel emphasised that the nature of the risk posed by the defendant was enduring because of the combination of historical factors and the diagnosis of schizophrenia. Counsel also pointed to the fact that the defendant had been out of custody for only approximately 11 months.

Counsel also emphasised that the plaintiff had acknowledged the defendant’s current level of support by removing a number of the conditions which were originally sought. It was submitted that the conditions now sought were directed towards ensuring that there was an appropriate level of monitoring and supervision.

In written submissions, counsel for the defendant submitted that the risks posed by the defendant were adequately and appropriately managed by the current CTO, and the ongoing treatment which was being provided in the safe and supportive environment provided by the defendant’s family and his community treatment providers.

In oral submissions, counsel for the defendant again emphasised the support which is currently available to the defendant. Whilst accepting that such support was necessarily dependent upon the defendant continuing to avail himself of it, counsel submitted that in light of the efforts made by the defendant thus far, the overwhelming inference was that he would remain, as it were, “on track”, and would continue to voluntarily avail himself of whatever services and support he could. Counsel also submitted, in my view with some force, that even if at some point the defendant deviated from his current path, and even if the CTO was not renewed beyond February 2020, it remained the case that he could be rendered an involuntary patient pursuant to the Mental Health Act 2007 (NSW).

In terms of the plaintiff’s reliance upon the findings of Schmidt J, counsel for the defendant pointed to the fact that at that time her Honour obviously did not have the benefit of the plethora of material which is now available to this Court. It was submitted that there was now a significant difference in the defendant’s circumstances, arising from the fact that not only had his condition been diagnosed, but he now had available to him professional and other support to enable him to function appropriately in the community.

Counsel for the defendant also pointed to the fact that the support network currently available to the defendant included mental health practitioners who were assessing him on a regular basis. It was submitted that even if an ESO were made, the functions of any ESO team would (at least in that respect) essentially be limited to referring the defendant to the practitioners who were already monitoring him. It was further submitted that the unchallenged evidence of the defendant’s mother was that she was already performing that role, and that it would be unrealistic to conclude, in circumstances where the defendant was supported by such a large number of people, that any deterioration in his mental health would go undetected, much less be ignored. It was submitted that a large number of people were monitoring the defendant, that they had contact with him on a regular basis, and that they could (and, on the evidence, would) act on any early warning signs which indicated a deterioration in the defendant’s mental health. Counsel also pointed to the evidence which, she submitted, would satisfy me that the defendant has insight into his mental illness. It was submitted that in these circumstances, the possibility that the current CTO may not extend beyond February 2020 was not a factor which was of any real concern.

In all of these circumstances, counsel’s submission was that whilst there was some risk of further offending, I could not be satisfied in all of the circumstances to a high degree of probability that any such risk was an unacceptable one.

In considering the evidence and the submissions of the parties, two matters should be stressed at the outset.

The first, is that both parties accepted that the defendant poses some risk of further serious offending. The second, is that both parties also accepted that this case is unusual, in the sense that an order is being sought in circumstances where the defendant already has the benefit of a substantial network which provides comprehensive supervision and support of various kinds on an ongoing basis. That second matter assumes particular significance in the present case.

In all of these circumstances, and in light of the manner in which the proceedings have been conducted, there is a single issue for determination, namely whether I can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an ESO.

The principal, but not the only, support for the order sought are the opinions of Mr Ardasinski and Dr Martin. I have previously noted the fact that Mr Ardasinski prepared his report almost 12 months ago. As my summary of the relevant evidence indicates, a great deal has happened since that time in terms of the defendant’s progress. I have the benefit of a great deal of evidence in that regard which was obviously not available to Mr Ardasinski. His opinions must therefore be assessed in that context.

I have already set out the opinions of Dr Martin [126] . One of Dr Martin’s concerns stemmed from what he saw as the need to monitor “any worrying signs”. He took the view that the CTO did not address that issue in its entirety. Clearly however, Mrs Carney has assumed that monitoring role. In this respect, it is important to note that Dr Martin expressly accepted that those who normally detect a deterioration in the condition of a mentally ill person are those closest to that person. Mrs Carney certainly falls into that category.

Leaving aside what he saw as the inadequacy of the CTO, Dr Martin pointed out that there was no guarantee that it would be extended beyond its currently intended expiry in February 2020. Whilst this is undeniably the case, it must be emphasised that the CTO is not the only support that the defendant currently has in place.

Moreover, there is, in my view, some degree of displacement between Dr Martin’s ultimate opinions and his express acknowledgement that the defendant:

A primary focus of the present proceedings has been on the support network which the defendant currently has available to him. On any view of the evidence, that network is both substantial and multi-faceted. It comprises a combination of both lay and professional assistance, of which the defendant has availed himself consistently over a significant period. There is absolutely nothing to suggest that the defendant will not continue along that path. Indeed, there is every indication that he will.

The unequivocal opinion of Dr Furst does not support the making of the order. Moreover, and whilst it is impossible to predict, it would seem unlikely that the current CTO would not be extended for at least some period beyond its current proposed expiry. Importantly however, even if that proved to be the case, it would not result in the defendant, as it were, languishing in the community without any support. The remaining aspects of the support network that he currently has would remain. Moreover, as counsel for the defendant pointed out, and as Dr Furst noted, the defendant would, in those circumstances, still remain subject to the provisions of the Mental Health Act 2007 (NSW).

In order to make the orders sought, I must be satisfied to a high degree of probability that there is an unacceptable risk of the defendant committing another serious offence if he is not kept under supervision pursuant to an ESO. Whilst there is a risk, I am unable, for the reasons I have expressed, to be satisfied to the requisite standard that such risk is unacceptable. The defendant’s progress since his release, and the support which is available to him, lead me to the conclusion that the risk is not present to the point where the safety and the protection of the community cannot be ensured unless the orders sought are made. Whilst the gravity of the risk that could eventuate is significant, the present circumstances are such that in my view, the likelihood of the risk eventuating is very much at the lower end of the scale.

In these circumstances I make the following order: