State of New South Wales v Prince (Final)

1. [1]

   HIS HONOUR: The State of New South Wales (“the State”) filed a summons whereby it sought a high risk violent offender extended supervision order for a period of two years against Mr Ian Prince (“the defendant”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The Act was amended by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) ("the Amendment Act") effective from 6 December 2017. The amendments apply to the present proceeding: Pt 10 of Sch 1 of the Act. One of the effects of the amendments is that the order sought by the State is now simply for an “extended supervision order” (“ESO”).

Legislative provisions

1. [3]

   Section 3 specifies the objects of the Act:

2. [4]

   Section 5B of the Act provides for the making of extended supervision orders:

3. [5]

   The matters in s 5B(a)-(c) were not controversial and I am satisfied that they are each established. The issue in the proceeding is confined to the matter in s 5B(d).

4. [6]

   Section 5D provides that for the purposes of s 5B (and s 5C, which is irrelevant to the present case) "the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence". (Emphasis added)

5. [7]

   A "serious offence" means either "a serious sex offence" or "a serious violence offence": s 4(1).

6. [8]

   A "serious violence offence" is defined in s 5A which provides (relevantly for the present case):

7. [9]

   Ms Wright, counsel for the State, made reference to the observation of Button J in State of New South Wales v Lynn [2013] NSWSC 1147 at [16] that the term "serious violence offence" is not confined to offences of homicide or even the intentional infliction of serious violence. The definition in s 5A includes an offence of causing grievous bodily harm to another person where the accompanying intention is only to cause actual bodily harm or where the offender is reckless as to the causing of actual bodily harm.

8. [10]

   Part 2 of the Act is concerned specifically with ESOs. In the present case the requirements for the making of applications by the State and for pre-trial procedures are uncontroversial and have been adhered to.

9. [11]

   Section 9 provides for the determination of an application for an ESO. The Court may determine an application by making an ESO or by dismissing the application (sub-s (1)). A new provision was inserted by the Amendment Act in sub-s (2) (replacing a requirement formerly in s 9(3)(a) that the Court must have regard to the safety of the community):

10. [12]

    The list of matters in s 9(3) that the Court must have regard to (in addition to any other matter it considers relevant) was also the subject of amendment. Those matters will be discussed later.

11. [13]

    Section 10 provides (amongst other things) that an ESO may be made for a term of up to five years.

12. [14]

    Division 4 in Pt 2 provides in s 11 a non-exhaustive list of conditions that the Court may direct an offender to comply with under an ESO.

13. [15]

    A final matter to observe as it was mentioned in the course of the hearing is that s 12 provides that a person who fails to comply with the requirements of an ESO (or an interim supervision order) is guilty of an offence for which the maximum penalty is imprisonment for 5 years and/or a fine of 500 penalty units.

Construction of some of the terms of s 5B

1. [16]

   In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal considered the term "high degree of probability" in the context of an application for a continuing detention order for a high risk sex offender. The term appeared in s 17 of the Act but its construction in that context may be applied to the same term in the current s 5B. The Court (Mason P, Giles and Hodgson JJA) said (at [21]):

2. [17]

   The term “unacceptable risk” was considered in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. It was held that the determination of whether a risk is unacceptable is an evaluative task (at [51] per Beazley P; Gleeson JA agreeing). The evaluation to be made is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection (at [61]). Her Honour was concerned with the language in the former s 5E(2), but it is relevantly identical to that now appearing in s 5B(d). This was said in the context of the primary object of the Act referring to the making of extended supervision and continuing detention orders "so as to ensure the safety and protection of the community". Safety of the community is given further emphasis with the new requirement to have regard to safety of the community as the paramount consideration: current s 9(2).

The proceedings

1. [18]

   The defendant is serving a sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years 6 months commencing 20 July 2012 for an offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). This is an offence that falls within the definition of a "serious violence offence" in s 5A of the Act.

2. [19]

   The non-parole period of the defendant's sentence expired on 19 January 2016. However, the State Parole Authority has twice refused to release the defendant on parole, so he has remained in custody and will do so until the total term of the sentence expires on 19 January 2018.

3. [20]

   These proceedings were commenced with the filing of a summons on 22 August 2017.

4. [21]

   On 16 October 2017, Bellew J made an order under s 7(4) of the Act appointing a qualified psychiatrist and a registered psychologist to conduct examinations of the defendant and to furnish reports to the Court: State of New South Wales v Prince [2017] NSWSC 1404. Dr Adam Martin, forensic psychiatrist, and Mr Patrick Sheehan, forensic psychologist, have furnished reports to the Court which will be discussed later.

5. [22]

   The defendant contests that there is an unacceptable risk and submits that the court would not be satisfied that the requirement of s 5B is made out. Accordingly, he contends that the State’s application should be refused.

The evidence

1. [23]

   The State read a number of affidavits and tendered voluminous documentary material concerning the defendant's general background, his criminal and custodial history, various assessments of him by experts and therapeutic programs he has undertaken. The material is also relevant to the proposed conditions of the order sought by the State. There was no evidence in the defendant's case.

2. [24]

   The following review of the evidence will be structured by reference to the matters required by s 9(3) to be taken into account.

3. [25]

   One of the experts referred to the defendant’s criminal history as “generally … impulsive violence directed to various people including police officers, intimate partners and others, frequently in association with intoxication”. Despite its brevity, that is an accurate description of his criminal history. An important point to note is that the index offence of wounding with intent to cause grievous bodily harm is the only offence in the defendant’s lengthy history that qualifies as a “serious violence offence”.

4. [26]

   The defendant's history includes various convictions for offences of break, enter and steal; receiving; take and drive conveyance; administer prescribed restricted substance; supply a restricted substance; offensive behaviour; driving unlicensed, intoxicated or whilst suspended; and various matters involving failure to appear or breaching conditional release orders.

5. [27]

   However, of particular significance to the present proceeding is the history of violent and related offences. The details of the offending are set out below, including the facts (where available) in relation to some of the more significant matters.

6. [28]

   In sentencing the defendant for the offences of affray and wounding with intent to cause grievous bodily harm on 4 May 2012, his Honour Judge King SC noted that there was no remorse. He also did not consider that there was any significant hope of rehabilitation. He said:

7. [29]

   The defendant appealed in respect of both conviction and sentence and the judgment of the Court of Criminal Appeal was handed down on 18 November 2013: Prince v R [2013] NSWCCA 274. The grounds of appeal against conviction included that the verdict on the charge of wounding with intent to cause grievous bodily harm was unreasonable and incapable of being supported by the evidence. It was held that the jury should have had a reasonable doubt about the defendant’s guilt on the primary basis upon which the Crown put its case, namely that it was he who inflicted the wound to the victim. However, the majority held that there was no reasonable doubt that the defendant was involved in the joint criminal enterprise on which the Crown’s alternative case rested and accordingly the ground of appeal was dismissed. (Schmidt J at [102]-[106], Gleeson JA agreeing at [1]; McCallum J dissenting at [2]).

8. [30]

   In relation to the appeal against sentence, Schmidt J said that the sentencing judge's finding of no remorse and little prospect of rehabilitation was properly available on the evidence ([111]). She said that it was apparent that the defendant required extended supervision once released ([112]).

9. [31]

   Schmidt J said the following (at [127]-[128]; [141]) about the defendant's attitude to the offence:

10. [32]

    The following from the judgment is also noteworthy:

11. [33]

    The defendant was born to Aboriginal parents and was raised in and around the township of Mungindi. He is the eldest of eleven children. Two of his siblings died during his own childhood and one died later in a motor vehicle accident.

12. [34]

    The family lived on an Aboriginal reserve for the first 13 years of the defendant’s life where conditions were described as very basic; they lived in “tin shacks” with few amenities. He shared a bed with his siblings. There were problems with alcohol in the local community and directly affected his own father. Drunken brawls were a regular feature of life. As a young child the violence was frightening, but according to Mr Sheehan the defendant became habituated and accepted this as part of normal life.

13. [35]

    The defendant’s father worked as a farmhand and a shearer. The defendant said there was structure and discipline in family life and he was never neglected. He was, however, exposed to regular domestic violence in the form of his father physically abusing his mother.

14. [36]

    At the age of 13 the defendant’s family relocated into the township of Mungindi. His social conditions apparently worsened with more regular alcohol abuse, violence in the community and pervasive cannabis use. He witnessed various episodes of extreme violence. He also reported having been regularly beaten when he misbehaved. He denied experiencing any sexual abuse.

15. [37]

    When the defendant was aged 15 his father died in a motor vehicle accident. He was present in the vehicle at the time and is described as having worn a heavy burden of guilt because his father was driving him to a football game. He said that he was deeply affected and regarded this event as a critical turning point toward a negative life trajectory. It coincided with the onset of heavy alcohol consumption. At around this time he moved to live with an aunty in Sydney and thereafter moved backwards and forwards between his mother’s home and the home of extended family members. He has however maintained links with his mother and family throughout his life. His mother is aged in her seventies and lives in Tamworth. He speaks with her by telephone a few times per week.

16. [38]

    In terms of education, he said that his literacy developed normally but he struggled with other subjects. He fought with peers and incurred several suspensions. He attended Mungindi High School in Year 7 but was expelled in Year 8 for fighting. He reattempted Year 8 at Moree High School but was expelled once again for fighting and thereafter did not return to complete his education.

17. [39]

    In terms of employment, he described a history of taking seasonal employment as a cotton chipper throughout most of his life. In off seasons he would travel to Sydney and take casual labouring work. He has said that his alcohol use, unreliability and arguing with employers have been the main barriers to maintaining stable employment.

18. [40]

    The defendant has had several intimate partner relationships in his life. He had four children to his first partner and six to his most recent partner, the latter children now being aged six to twelve years. His most recent partner died in 2014 whilst he was serving his current sentence and his children are now cared for by their maternal uncle. He maintains contact with them by telephone and is said to be highly motivated to work towards gaining custody of these children in the future. He said that this was his primary motivation for him to “do everything right and make no more mistakes”. He said he needed to prove to Community Services authorities that he was fit to look after the children.

19. [41]

    The defendant’s eldest daughter, from his first long-term relationship, died whilst he was in custody in May 2017. He was reluctant to discuss the details but said the loss was still very fresh in his mind and he was grieving.

20. [42]

    A report by Ms Rima Nasr, forensic psychologist, dated 13 April 2012 was tendered in the sentence proceedings before King SC DCJ. Ms Nasr summarised the position with the defendant as follows:

21. [43]

    Ms Nasr opined that the defendant’s rehabilitation and management needs were extensive and he would require long-term treatment and management that is both intensive and comprehensive. However she said that his motivation to commit to treatment seemed poor. She recommended that he engage in long-term rehabilitation in relation to substance dependence in a structured environment given his lack of success in such programs in the community. She said that he would need to progress through a structured pre-release program in prison whereby he would be allowed to experience being in the community in a staged and supported way. She recommended that offence-focused intervention by way of the Violent Offender Treatment Program (“VOTP”) would best meet his needs. Ms Nasr also suggested the long history of incarceration to date had done little in terms of prevention and she recommended that there be a long period of community based supervision on parole in order for the defendant to develop the skills he would need to survive in the community. She said:

22. [44]

    Ms Nasr concluded her report by stating:

23. [45]

    A report by Dr John McMahon, clinical psychologist, dated 20 April 2013 was prepared in relation to a proposed victim’s compensation claim being made by the defendant in relation to him having been assaulted in January 2012. The report includes suggested diagnoses of Chronic Adjustment Disorder with Anxiety (Axis I) and anti-social and paranoid traits (Axis II). Under the heading “treatment and prognosis” Dr McMahon said:

24. [46]

    Dr Richard Parker is the Senior Specialist Psychologist with the Serious Offender’s Assessment Unit of Corrective Services NSW. He interviewed the defendant on 1 March 2017 and provided a Risk Assessment Report dated 14 March 2017.

25. [47]

    The defendant gave a history of using cannabis since the age of 13. Whilst there had been some short periods of abstinence, he had used cannabis for all of his life since then. He also reported experimenting with alcohol from around the same age but his use escalated after the death of his father when he was aged 15. He gave a history of alcohol consumption through his adult years to the effect that it varied depending upon such things as whether he was employed or not. He denied drinking daily when unemployed but said he would binge drink to the point of intoxication about once every two or three weeks. He also said that he had experienced numerous blackouts as a result of his drinking. The defendant has attended residential rehabilitation programs but has not been able to manage significant periods of sobriety outside of custody. He attributed his offending to alcohol, saying “I’ve never been in a police cell while sober”.

26. [48]

    Dr Parker carried out a risk assessment and his report includes a discussion of the utility of various tools available in this respect. With the use of the Level of Service Inventory – Revised (“LSI-R”) and the Violence Risk Appraisal Guide – Revised (“VRAG-R”), the defendant was assessed as being at high risk of further violent offending.

27. [49]

    Dr Parker identified three dynamic risk factors (criminogenic needs) believed to have a causal role in the defendant’s offending. They were: criminal peers, substance abuse and criminal thinking.

28. [50]

    In discussing the defendant’s risk of further offending Dr Parker noted that, while the worst of his past violence had occurred in conjunction with substance abuse, his behaviour in custody suggested that the underlying motivations for this violence are independent of substance abuse. Substance abuse may simply reduce the defendant’s inhibitions against violence, increasing the frequency and/or intensity of it.

29. [51]

    It was noted that, at 49 years of age, the defendant is well past the peak age of violent offending according to some literature. However, other literature indicates that this is not necessarily a significant predictor. It was noted that the actuarial instruments had placed the defendant at high risk of violent recidivism and general recidivism notwithstanding the defendant’s age.

30. [52]

    Dr Parker said that it was likely that situational factors would be relevant to whether a particular situation would lead to violence or serious violence. He referred to the index offence including the use by a member of the defendant’s group of a machete that happened to be available. There was also a previous incident involving the defendant’s brother where the defendant had used a tree branch in the attack. Dr Parker said, “If a more deadly weapon had been available, that offence may also have reached the criteria for serious violence”.

31. [53]

    In concluding his report, Dr Parker said that even if the defendant completed the VOTP it was likely that he will need an extended period of strict monitoring to implement and consolidate the skills and attitudes he learns in that program. In the event that he became the subject of an ESO, it was likely he would benefit from intensive supervision and case management by Corrective Services NSW (“CSNSW”). He said that the higher level of supervision involved in an ESO, compared to standard supervision (parole), would assist in helping the defendant to develop a pro-social lifestyle in the community.

32. [54]

    In the event that the defendant was released at the expiration of his sentence on 19 January 2018 without an ESO having been made, Dr Parker said:

33. [55]

    Dr Parker was provided with a body of additional documentary material including the judgment of the Court of Criminal Appeal and various statements of facts in relation to past offending. He provided a supplementary report dated 17 November 2017. He acknowledged that he was now aware that the Court of Criminal Appeal had held that the Crown could not prove that the defendant was the offender who wielded the weapon in relation to the index offence. He noted, however, that it was held that the defendant was a member of the group that intended to inflict serious injury to the victim. Having referred to this and all of the other documents provided, Dr Parker said that nothing caused him to alter his earlier assessment that the defendant is a high risk of further violent offending. He confirmed this in his oral evidence (T4).

34. [56]

    Dr Parker agreed in cross-examination that whether an assault, for example, becomes a serious violence offence can be influenced by environmental variables. He also agreed that it was not possible to account for such variables in prediction. (T6)

35. [57]

    A Risk Management Report was provided by Mr Mahmoud Elsayed, Community Corrections Officer, dated 20 June 2017. Mr Elsayed noted the three risk factors identified in the Risk Assessment Report of Dr Parker (criminal peers, substance abuse and criminal thinking). His report addresses how these matters might be managed within the terms of an ESO. These matters are relevant to the conditions of an order if one is to be made and will be discussed later in that context.

36. [58]

    A proposal for the defendant to enrol in the VOTP was initiated in January 2014. Over the next two years there were a series of offers of placement which were not accepted by the defendant for various reasons. They usually concerned his classification and the location of the correctional centre, him being concerned that he would be unable to continue receiving visits from his children. Ultimately the defendant signed a form giving his consent to participate in the VOTP on 16 March 2016. He completed 22 sessions before being suspended due to fighting with another inmate on 20 July 2016. CCTV footage reportedly showed that he initiated the fight by striking the other inmate.

37. [59]

    After his suspension was lifted he attended a further 19 sessions and his participation during this period was described as satisfactory. However on 29 November 2016 he assaulted another inmate, with the CCTV footage showing that he initiated the fight by striking the inmate three times in the face with a closed fist during a card game. After initially denying it, he later said that he did not like how the other inmate was speaking to him and he felt teased. He minimised personal responsibility and presented as “entitled”. In the course of being spoken to about this he also disclosed that he had been violent towards another inmate during the suspension in July 2016, saying he had “throttled him by grabbing him around the neck and choking him”.

38. [60]

    The defendant re-entered the VOTP on 11 April 2017. He was again suspended after receiving an institutional conduct charge of disobeying a direction. In the course of doing so he reportedly made threats towards sex offenders in his wing. He re-entered the VOTP on 27 July 2017 and remains in that program.

39. [61]

    In a report by his treating psychologist, Ms Sarah Brann, dated 10 November 2017 the following appears as to his progress in the VOTP:

40. [62]

    As noted previously, the defendant has not been granted parole in relation to his present sentence. He was first eligible for release on parole on 19 January 2016. In a pre-release report by a Community Corrections officer dated 27 October 2015 it was recommended that parole be refused on the following basis:

41. [63]

    The State Parole Authority accepted that recommendation at a meeting on 20 November 2015. The notification of the refusal of parole provided the following reason:

42. [64]

    The defendant requested a review of that determination but it was confirmed.

43. [65]

    It is notable that the defendant signed the consent to participate in the VOTP a few months later, on 16 March 2016.

44. [66]

    The defendant was next eligible for release on parole on 19 January 2017. In a pre-release report dated 8 November 2016 a senior Community Corrections Officer said, “Mr Prince does not wish to be considered for release to parole on this occasion. He stated that he would seek release upon completion of the Violent Offender Therapeutic Program (VOTP).” It was noted that the defendant had re-commenced the VOTP on 10 October 2016 but it was “too early to comment on any major gains”. The report concluded:

45. [67]

    The defendant has been released on parole on a number of occasions in the past. His custodial history shows releases on parole in March 1994, July 1995, November 2002, May 2003, June 2004, June 2007 and September 2009. That history also shows that the Parole Authority revoked parole on two occasions, February 2003 and February 2010. No detail as to the basis of the revocations is apparent from that document although, given the regularity of offending, it is likely to have been caused by the commission of further offences whilst on parole.

46. [68]

    It is consistent with the defendant’s history of persistently offending whilst in the community that he also has a lengthy history of breaching internal disciplinary rules whilst in custody. The record includes institutional offences of fighting, assaults and intimidation from 1995 through to 30 November 2016.

47. [69]

    Mr Sheehan’s report is dated 3 November 2017. In addition to the documentary material with which he was briefed he had the benefit of an interview with the defendant on 26 October 2017 which lasted for about three hours. The defendant participated appropriately in that interview. Mr Sheehan’s report is lengthy and it includes reference to a number of matters which have been mentioned elsewhere and will not be repeated here.

48. [70]

    In relation to the defendant’s relationships and associates, Mr Sheehan wrote in part:

49. [71]

    In discussing the defendant’s past performance whilst on parole and attitude to supervision, Mr Sheehan said that the defendant “acknowledged a repeated history of parole failures but sought to view these failures as being largely an artefact of parole staff having an agenda to breach him as opposed to work with him”.

50. [72]

    In relation to his post-supervision plans, the defendant told Mr Sheehan that he planned to move to Mungindi and take possession of a large home that he believes his mother will sign over to him. He envisages undertaking some repairs to the home and he also wants to gain custody of his young children. Other plans include obtaining his driver licence and obtaining some occupational certificates. Mr Sheehan commented:

51. [73]

    Mr Sheehan discussed the defendant’s history of alcohol abuse as well as substance use. The defendant repeated what he had said to others, namely that his past episodes of aggression were alcohol related. Mr Sheehan was of the view that the defendant “will require some form of ongoing AOD [alcohol and other drugs] counselling support in the community, perhaps in the form of fortnightly individual counselling sessions”.

52. [74]

    As to substance abuse, Mr Sheehan considered that the history indicated the defendant would meet the criteria for substance use disorder.

53. [75]

    In terms of other mental/personality issues Mr Sheehan considered that the defendant would meet the criteria for Anti-Social Personality Disorder which he said is “defined as a pervasive pattern of disregard for and violation of the rights of others, occurring since the age of 15 years”.

54. [76]

    He added:

55. [77]

    Mr Sheehan considered the defendant’s involvement in the VOTP and said:

56. [78]

    Mr Sheehan used the Violent Risk Scale (“VRS”) as an actuarial tool to assess risk. Mr Sheehan appropriately drew attention to the utility and limitations of various assessment tools such as this. In the overall result of the VRS it was estimated that the defendant’s risk for violence was within the High range, relative to the sample population used in the formulation of that tool.

57. [79]

    Mr Sheehan said that the re-offending considered in the VRS was not necessarily required to meet the criteria of “serious violence offence” as defined in the Act. However, he anticipated that recidivism rates specific to a serious violence offence would be lower than that identified for general violent recidivism.

58. [80]

    Mr Sheehan proceeded to discuss the various dynamic risk factors identified in the VRS as they relate specifically to the defendant. Three matters are of note. First, Mr Sheehan noted that the index offence did involve the use of a weapon and that there were previous violent offences involving the use of other objects that were available at the time. He said:

59. [81]

    Secondly, in relation to the defendant’s insight into violent behaviours, Mr Sheehan observed that the defendant “over emphasises the role of alcohol in his violence offending, failing to appreciate that intoxication has disinhibited a pre-existing belief system”.

60. [82]

    Thirdly, Mr Sheehan observed that the defendant had a poor history of compliance with supervision. He noted:

61. [83]

    Finally in relation to the level of risk, Mr Sheehan said:

62. [84]

    Mr Sheehan then discussed “risk scenarios and formulation”. In the course of this he said:

63. [85]

    Under the heading “overall risk”, Mr Sheehan expressed the following conclusion:

64. [86]

    In cross-examination Mr Sheehan was taken to the reference in this passage to the "use of weapons (such as in the current offence)". He had not picked up at the time of writing his report that the Court of Criminal Appeal had found that the jury should have had a doubt about whether the defendant was the offender who was armed with the machete.

65. [87]

    In the course of expressing his conclusions at the end of his report, Mr Sheehan said:

66. [88]

    Mr Sheehan made useful comments in relation to the proposed conditions of an ESO and they will be discussed later. As to the term of an order he said:

67. [89]

    Dr Adam Martin provided a report dated 14 November 2017 after having received the documents provided by the State and having interviewed the defendant on 28 October 2017 for 75 minutes. I do not propose to repeat matters of history that are recounted elsewhere. However the following matters are noted.

68. [90]

    Dr Martin referred to the defendant as having expressed openness to engaging in ongoing treatment and supervision under the proposed ESO. He reported that the defendant had said in that regard, “If I’ve got not choice then there is not much I can do”. He is also reported to have said, “I suppose I should do this course because of past violent offence[s]”.

69. [91]

    Dr Martin said that the defendant would qualify for diagnoses of substance use disorder and anti-social personality disorder. He also said:

70. [92]

    After indicating that he did not think that the defendant had a major mental illness, he said that he considered the defendant’s major problems [to be] having long-standing difficulties with controlling his emotions and behaviour which have been exacerbated by his predisposition to substance misuse. Dr Martin said that “these are enduring conditions, which are not likely to resolve quickly or without significant intervention”.

71. [93]

    On the subject of future risk, Dr Martin said”

72. [94]

    In cross-examination at the hearing, Dr Martin's attention was drawn to the above passage and the reference to "a risk of committing further serious violent offending". He said that, on reflection, it would be more appropriate to say, "he's at risk of committing further violent offending". He explained that it was difficult to predict exactly what level of seriousness the violence might take because it depends on so many variables. (T8.45)

73. [95]

    Dr Martin used the HCR-20 Version 3 structured professional judgment tool for risk assessment and management. His conclusion as to the results included:

74. [96]

    In relation to management of the defendant’s risk in the community under an ESO, Dr Martin said:

75. [97]

    Dr Martin concluded his report with a comment to the effect that he considered the proposed conditions of an ESO to be appropriate and he had no specific comments or criticisms of them. He also indicated that the defendant’s “risks are unlikely to change dramatically over the next few years and his psychological problems are enduring. In my view, it is reasonable for him to be supervised over two years as proposed.”

76. [98]

    Mr O'Neil showed Mr Sheehan and Dr Martin a letter that had been written by the defendant in relation to his application for parole in 2015. In that letter the defendant spoke of being motivated to address his problem with alcohol and rehabilitate so as to enable him to get his young children back. Dr Martin agreed that being able to visit the children, if not take care of them, would be a strong motivating factor for the defendant to rehabilitate himself. Mr Sheehan could not agree completely; he said it was potentially a strong motivating factor but experience had shown that other inmates have made previous statements without necessarily changing their behaviour. He also pointed out that since writing that letter in 2015 the defendant had engaged in violence in the form of assaults upon fellow inmates (albeit relatively minor in the scheme of things). (T10-11)

77. [99]

    These are two new mandatory considerations added to s 9(3) of the Act by the Amendment Act.

78. [100]

    The written submissions for the State include that the defendant has limited options in the community that might reduce his risk of re-offending. He has spent a considerable period of time in custody. If an ESO is made he will receive support from Community Corrections to remain abstinent from alcohol, to continue to engage in VOTP programs, drug and alcohol counselling, and to maintain pro-social relationships.

79. [101]

    However, and somewhat ironically given the State is seeking an ESO, the written submissions also include in relation to s 9(3)(e2) that “the evidence does not support a finding that he would likely comply with the conditions of an ESO”.

Submissions for the State

1. [102]

   Ms Wright of counsel submitted that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order sought. She referred to the following matters:

2. [103]

   In relation to (d) above, Ms Wright's submissions referred to the Risk Management Report of Mr Elsayed, the Court of Criminal Appeal judgment and also the parole pre-release report of 27 October 2015. For example, the defendant told Mr Elsayed that he was "getting angry just talking about it" and said he will "boot them [the nephews who he blames] up the ass if they deny they commit the offence". There was also a note by a psychologist (Exh CP-2 p190) that the defendant had "explained that his anger was directed mostly to one individual in particular and stated [he] the planned to 'sort it out' upon release". He explained, "in the bush, my mob fight with our fists to sort out disagreements".

3. [104]

   Ms Wright referred again to the observation of Button J in State of New South Wales v Lynn (see above at [9]) about the range of criminal conduct within the definition of "serious violence offence" in s 5A. She referred to there having been six offences of assault occasioning actual bodily harm in the defendant's criminal history. There had been past offences in which the defendant had used a nearby available object as an offensive instrument: a tree branch, a brush, a stick, a bottle, and a length of iron rod. Further, even if no object was used, a single punch intending or being reckless as to actual bodily harm could inadvertently result in really serious bodily harm.

4. [105]

   Reference was also made to the many instances in which the defendant's violence had been brought to an end not by his choosing, but because either victims removed themselves from the situation or the police intervened. This, it was submitted, prevented potential escalation of the level of violence.

5. [106]

   It was submitted that whilst the vast majority of offences had not involved serious violence (as defined in the Act), they nonetheless shed light on the risk of such an offence being committed in the future.

6. [107]

   Alcohol has been a factor in many of the defendant's offences in the past. However, Ms Wright pointed out the uncontroversial fact that during periods of enforced abstinence from alcohol while in custody there were still repeated instances of violent conduct.

7. [108]

   Ms Wright pointed to the various risk factors identified within the body of the expert evidence about which there was consensus; matters such as alcohol abuse, association with antisocial peers, the instability of his accommodation and anger management issues.

Submissions for the defendant

1. [109]

   The following seem to be the essential elements of Mr O'Neil's opposition to the making of the order sought by the State:

2. [110]

   Mr O'Neil also made submissions about the assessments of the experts and pointed to various uncertainties inherent in such a task. This was said to be particularly so in relation to "environmental variables"; for example, Mr Sheehan saying that they cannot be accounted for in prediction. It was submitted that to take such variables into account was to enter the realms of speculation.

3. [111]

   Reference was also made to various statements to the effect that an ESO should not be used as a substitute for parole: for example, State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [131] per N Adams J.

4. [112]

   In relation to the defendant's breaches of institutional disciplinary rules that include offences of violence, Mr O'Neil emphasised that they cannot be regarded as serious as they did not result in criminal charges and the sanctions imposed were relatively minor.

5. [113]

   It was submitted that mitigating against the risk of the defendant committing a serious violence offence were the following factors:

6. [114]

   For these reasons it was submitted that the State had failed to establish that there was a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision.

Consideration

1. [115]

   I have no doubt that the defendant presents as an unacceptable risk of committing further violent offences. Actuarial assessment tools are not required for that conclusion to be reached. The fact is that the defendant has committed so many offences of violence in the past that there is a high likelihood of him doing so again until there is drastic change. The various risk factors identified in the expert reports, which I am satisfied continue to the present day, further confirm the high likelihood of this risk. However, a high degree of probability that the defendant poses an unacceptable risk of committing a further violent offence is of course not the test.

2. [116]

   In assessing the risk of the defendant committing a "serious violence offence", it is relevant that on the many occasions of violence in the past where it is known that no object has been used as an offensive instrument (the vast majority) he has not once caused grievous bodily harm.

3. [117]

   There are about 40 prior offences that include an element of "assault". Five of those had the additional element of "occasioning actual bodily harm". With reference to the offences by the court date (see table above at [27]), the injuries sustained were:

4. [118]

   While these injuries, and the circumstances in which they occurred, were no doubt distressing for the victim, the injuries are a long way from the level of grievous bodily harm.

5. [119]

   There was also the offence of maliciously inflicting grievous bodily harm for which the defendant was sentenced to 11 weeks' imprisonment on 12 October 2001. No facts in relation to that offence are available but, given the charge was dealt with in the Local Court, it may be assumed that the offence was regarded as being of a relatively low level of seriousness for an offence of its type.

6. [120]

   There is clearly a concern about a prospect that the defendant may – possibly in a fit of rage (he clearly has anger management problems) and probably disinhibited by alcohol (his abuse of alcohol is an entrenched problem) – take up an item nearby and use it in a fashion that may result in grievous bodily harm, whether it is his intention to cause that level of harm or not. However, the fact is that he has been involved in a great many violent incidents in the past and, aside from the index offence, that has never occurred.

7. [121]

   An object has been used on the following occasions (including reference to the court date for referencing to the table at [27] above):

8. [122]

   None of these incidents indicate that there was a serious attempt to cause grievous bodily harm or a risk that such a level of harm might have been caused inadvertently.

9. [123]

   Mr Sheehan gave the following evidence:

10. [124]

    I accept that evidence. But while there might be an increase in the likelihood of an offence becoming serious, the history indicates that the prospect of this occurring is not high.

11. [125]

    In relation to the index offence which was committed in 2010, while the defendant was not the person armed with the machete, he was a member of a group that included that person, and others in the group were armed with other objects. His criminal liability was founded upon him sharing the intent to cause grievous bodily harm. This, and the offence of maliciously inflicting grievous bodily harm in 2001 (for which the facts are unknown), are the only offences in a dreadfully long history of violent offending that involved grievous bodily harm being caused.

12. [126]

    The State has identified a concern that the defendant may seek vengeance against others who he regards as truly responsible for the index offence of which he has persistently proclaimed his innocence. I accept that is a concern but there is insufficient evidence to infer that he may be cause grievous bodily harm to such persons. I accept he may be angry as a result of his perception that he has served a substantial prison term for something others are responsible for. I accept that he may vent that anger by assaulting one or more of the persons who he thinks should have taken responsibility and absolved him. The likelihood of this happening is difficult to assess. It is of note that there was no mention of it in the history obtained by Mr Sheehan and also, it seems, in that obtained by Dr Martin. The worst the State was able to identify was an assertion made by the defendant to Mr Elsayed that he would "boot them up the ass".

13. [127]

    It would have been highly desirable that the defendant not be released without supervision. The need for an extended period of supervision was clearly identified by King SC DCJ who sentenced the defendant for the index offence and by the Court of Criminal Appeal. The State Parole Authority took a different view but its decision was based largely on how the defendant had progressed in custody since sentencing. Counsel for the defendant, Mr O'Neil, was correct (with respect) to point out that the making of an ESO is not a substitute for parole. I make no criticism of the decisions to refuse the defendant's release on parole, but the practical effect is that he will be released without any supervision with issues of substance abuse, anger management and a demonstrated propensity for violence that are, at best, partially treated.

14. [128]

    There are some factors that may serve to ameliorate the risk of further violent offending as Mr O'Neil pointed out. The defendant does have the support of his parents-in-law who have indicated a preparedness to provide accommodation for him, although whether he takes up the offer if not required to do so remains to be seen given he has expressed a wish to return to Mungindi (see above at [72]). More significantly is his concern about his children whose mother passed away in 2014 while he was in custody. He has been allowed to receive visits from them, so there must be some hope in his mind that he may be able to continue with access and, possibly, gain custody at some stage in the future. His prospects of doing so would obviously be enhanced if he were to address the issues identified in the reports. If he reverts to the lifestyle he led in the past he must realise that such prospects would be negligible. This seems to be a strong motivating factor, but the scepticism of Mr Sheehan is realistic.

Conclusion

1. [129]

   For the foregoing reasons, I am not satisfied that there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if he is not kept under an extended supervision order.

Order

1. [130]

   I make the following order: