State of New South Wales v Azar (Final)

1. [1]

   The State of New South Wales seeks an extended supervision order (ESO) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the “CHROA”) in respect of the defendant, on the basis that he is a high risk violent offender. The summons seeks that the ESO be in a place for a period of three years. The order is opposed by the defendant on the basis that the order does little to reduce the unacceptability of the risk, that the legislation should not be used in lieu of mental health legislation, and that the defendant is likely to be unable to comply with the order.

2. [2]

   On 16 December 2020 Hoeben CJ at CL ordered that the defendant be subject to an interim supervision order (ISO) commencing on 18 December 2020: State of New South Wales v Azar (Preliminary) [2020] NSWSC 1807. On 14 January 2021 the ISO was extended to expire on 11 February 2021. On 23 January 2021 the defendant was arrested and returned to custody after having been charged with failing to comply with the ISO contrary to s 12 of the CHROA. The circumstances of the defendant’s non-compliance and arrest will be discussed later in this judgment. The effect of the defendant’s arrest is that the ISO is suspended, and time does not run in relation to its expiry: s 10C(1A) of the CHROA.

Background

1. [3]

   The defendant was born on 18 February 1995 and is now 26 years old. He has four older siblings.

2. [4]

   He completed year 10 at a behavioural college, and thereafter left school to work as a spray painting apprentice.

3. [5]

   The defendant has a history of substance abuse and mental health issues. At the time of the index offence (discussed below) he was suffering from undiagnosed schizophrenia.

4. [6]

   Prior to the index offence the defendant was sentenced for the following offences:

The index offence

1. [7]

   The circumstances of the index offence appear in the judgment of Matthews AJ in R v Kaddour; R v Azar [2017] NSWSC 586; see also Kaddour v R [2019] NSWCCA 90. They may be summarised as follows.

2. [8]

   On 13 August 2013, the defendant and a Mr Mohamed El-Chami were with the victim, Bassem Salameh, inside his apartment. At approximately 8pm, Mr Salameh is alleged to have pinched the defendant on his buttocks while he was sleeping. The defendant took this to be a homosexual advance, and he was extremely angered by it. Mr El-Chami was woken by the defendant's angry response, and the two men then left the apartment.

3. [9]

   The defendant and Mr El-Chami then met up with Ahmed Kaddour, and told him what had happened. At approximately 1:30am on 14 August 2013 the three men returned to Mr Salameh's apartment. The defendant and Mr Kaddour proceeded to assault Mr Salameh. Mr El-Chami left the apartment shortly after the assault commenced. He gave evidence at the trial that by the time he returned, the victim was mortally wounded. Mr El-Chami saw the defendant holding a hacksaw near the victim's throat and kicked it out of his hands. Mr El-Chami was originally charged with murder. However, he pleaded guilty to concealing a crime, and gave evidence that resulted in the conviction of Mr Kaddour.

4. [10]

   Mr Salameh died from blunt force injuries to the head, and sustained additional injuries including fractures and lacerations to different parts of his body and head, broken ribs from being stomped on, and a ruptured eye. The weapons used to assault him were primarily objects found in the apartment. An unspent bullet was found at the back of his throat. The defendant was found by Matthews AJ to be the initiator of the assault.

5. [11]

   The defendant was initially arrested on 16 August 2013 for questioning and the obtaining of samples of forensic evidence. At the time, he denied knowledge of the murder. On the following day, he made admissions to his mother and his sisters that he had slit Mr Salameh’s throat, and that he had “put a bullet in his mouth as a love letter”. His family informed the police of those admissions.

6. [12]

   On 20 August 2013 the defendant was charged with murder. After a psychological review it was found that he was suffering from a schizophrenic illness at the time of the offence. On 9 October 2015 he was found unfit to stand trial by Wilson J, and the matter was referred to the Mental Health Review Tribunal: R v Azar [2015] NSWSC 1486.

7. [13]

   The defendant commenced antipsychotic treatment on 22 January 2014, and 24 March 2016 the Tribunal determined that the defendant was fit to stand trial. A fitness hearing took place before Matthews AJ on 18 April 2016, and her Honour found the defendant fit to be tried: R v Azar [2016] NSWSC 480.

8. [14]

   The defendant subsequently entered a plea of guilty to the offence of manslaughter, on the basis of his impaired mental health at the time of the offence. On 16 May 2017 he was sentenced by Matthews AJ to seven years’ imprisonment with a non-parole period of four years. The sentence commenced on 19 December 2013: R v Kaddour; R v Azar [2017] NSWSC 586.

Subsequent offending

1. [15]

   The defendant was released to parole on 18 December 2017, the first day on which he was eligible for parole. Within three months of his parole order, he commenced displaying some non-compliant behaviour. This included missing his psychological appointments, continually seeking out antisocial associates who were involved in drug supply, engaging in behaviour that his supervising officer considered to be glorifying his offending, and becoming increasingly aggressive towards his family members and the Prevention Early Intervention & Recovery Service (PEIRS) staff who had been working with him to manage his mental health. He was placed on electronic monitoring in March 2018.

2. [16]

   By May 2018, after being on parole for approximately five months, the defendant was involved in a domestic dispute with his cousins, who were listed on his parole conditions as being non-associations. He received a warning from the Parole Authority for breaching one of his parole conditions.

3. [17]

   On 3 June 2018, his girlfriend at the time, Jennifer Hosn, had a verbal conflict with one of the defendant’s sisters, Amagene, at the family home. Shortly after the conflict, the defendant approached a car belonging to his other sister, Vanessa, and twice threw an object towards the car window damaging it. Vanessa owned a car similar in make, colour and model to Amagene, and the attack on Vanessa’s car seems to have been intended for Amagene’s car. The defendant was charged with destroy or damage property (domestic violence).

4. [18]

   On 14 June 2018 the defendant attended his uncle's residence armed with a knife which he then used to stab a screen door. When the police arrived, he resisted arrest and attempted to assault five officers. He was charged with the following offences:

5. [19]

   All of these offences were committed while the defendant was on bail for the charge of destroy or damage property in relation to his sister’s car. The defendant was returned to custody on arrest, bail refused. The Parole Authority revoked his parole effective from 14 June 2018.

6. [20]

   On December 2018 the defendant was sentenced for all of the offences committed whilst on parole, receiving a sentence of one year and 13 days commencing 11 June 2018 and concluding 23 June 2019. There was a non-parole period of six months and 13 days concluding 23 December 2018. However, the Parole Authority determined on 17 January 2019 that the revocation order of 14 June 2018 should remain in place. Accordingly, the defendant was not released until the expiry of his sentence for manslaughter on 18 December 2020.

Mental health issues

1. [21]

   After the defendant was released to parole he saw Dr Anthony Harris, his treating psychiatrist through PEIRS. In a letter dated 6 March 2018, Dr Harris noted that the defendant was offended during one of their sessions, and he threatened both Dr Harris and the PEIRS case manager, Conrad Netto. He also reportedly made violent threats towards his family with his aim being to deter his mental health supports from contacting them.

2. [22]

   In a letter dated 9 March 2018, Mr Netto noted that although the defendant was compliant with his depot treatment for schizophrenia, he was difficult to engage in sessions and expressed a desire to cease his medication. The letter also said that the defendant lacked insight into the importance of medication despite receiving psychoeducation. During that same period, the defendant’s mental health supports received information to suggest that the defendant had become increasingly aggressive and threatening, especially towards his family.

3. [23]

   After breaching his parole order and being returned to custody, the defendant was assessed by Dr Gerald Chew. In a report dated 4 October 2018, Dr Chew expressed the opinion that the defendant was suffering from a relapse of illness at the time of the new offences due to medication change coupled with illicit drug use.

4. [24]

   On 10 April 2019 the defendant’s treating psychologist made an application for a Forensic Community Treatment Order (FCTO) under s 67 of the Mental Health (Forensic Provisions) Act 1990 (NSW) on the basis of the defendant's history of medication non-adherence and subsequent mental health decline. On 10 May 2019, a hearing was held before the Tribunal, and a 12 month FCTO was made, to expire no later than 9 May 2020. It required the defendant to accept any treatment and/or medication prescribed by his treating psychiatrist.

5. [25]

   On 5 August 2020 the defendant was placed on another FCTO for a period of 12 months to expire no later than 4 August 2021. This was after a deterioration in the defendant’s mental state was observed, marked by non-compliance with his anti-psychotic medications, including refusing to take his depot medication and becoming non-compliant with psychiatric review. The psychiatrist, Dr Ma, noted that there had been threats of violence towards a psychiatrist, and that the defendant presented with limited insight into his need for treatment and the relationship between his mental illness and violence. The defendant indicated he had no intention of following up with mental health services upon release.

6. [26]

   The defendant was scheduled to Long Bay Hospital (the Hospital) on 27 July 2020 for assessment and consideration of treatment with an injectable antipsychotic to ensure compliance. He was actually transferred to the Hospital on 19 August 2020. At the time, Dr Sarah-Jane Spencer noted that the defendant had refused to comply with his FCTO. Notes made by Dr Sharma and Dr Jackson on 19 August 2020 record that the defendant expressed anger at being transferred to the Hospital, and did not see the rationale for taking any medication. He made several violent threats when advised he would be receiving depot medication.

7. [27]

   On 18 September 2020, the defendant was transferred back to a correctional centre from the Hospital.

8. [28]

   On 20 October 2020 he was scheduled to the Hospital for assessment and consideration of treatment with an injectable antipsychotic after refusing to accept it voluntarily. An order was made for the transfer of the defendant to a mental health facility on 21 October 2020. On 11 November 2020 the Tribunal determined that the defendant be transferred to a mental health facility. On 27 November 2020 the order for the defendant’s transfer made on 21 October 2020 was revoked. At that time the defendant was compliant with depot antipsychotic treatment, and he was stable.

9. [29]

   The defendant completed the EQUIPS (Explore, Question, Understand, Investigate and Practise, Plan, Succeed) addiction program twice and EQUIPS program once while in custody. However, six months after his release on parole he lapsed into methamphetamine use.

10. [30]

    While in custody, the defendant refused to participate in the Violent Offenders Therapeutic Program (VOTP) until 13 June 2019, but on that day he indicated he was prepared to participate in it if it would benefit his release. On 1 August 2019 he was inducted into the program. He was subsequently suspended from the program due to ongoing aggression towards psychologists and custodial officers.

The ISO

1. [31]

   As noted earlier, on 16 December 2020 Hoeben CJ at CL ordered that the defendant be subject to an ISO commencing on 18 December 2020. On that day, the defendant’s DSO, Ryan Gaffney, issued the defendant a formal, written direction in these terms:

2. [32]

   The defendant acknowledged and signed this direction.

3. [33]

   The ISO was renewed on 14 January 2021 for 28 days expiring 11 February 2021.

4. [34]

   On 21 January 2021, DSO Gaffney issued the defendant a verbal warning in relation to threatening and abusive behaviour by him towards EMU staff. The defendant had become very agitated, calling the EMU staff “dogs”, and he informed DSO Gaffney that he would not speak to them any further. The defendant acknowledged the warning.

5. [35]

   On 23 January 2021, the defendant contacted Community Corrections to request approval to amend his schedule of activities. The DSO was not working at that time. The defendant spoke to another DSO, Terry O’Brien. He became agitated and abused him saying, “Fuck you, you dog. Fuck your mum. Fuck you.”

6. [36]

   Later that day, DSO Gaffney and Unit Leader Robertson attended the Voyager Hotel Minchinbury where the defendant was living. DSO Gaffney tried to speak to the defendant about his attitude and behaviour towards Community Corrections staff and about the earlier phone call. The defendant again became agitated with DSO Gaffney, and informed him that he did not want to talk “to you cunts any more”. He would not listen to anything the officers were saying but yelled at them to “Fuck off” and “Get the fuck out. I’m going to hurt you. Get the fuck out.” Both DSO Gaffney and Unit Leader Robertson disengaged and left the hotel.

7. [37]

   Later that day, the defendant was arrested and charged with failing to comply with the ISO. He appeared before Mt Druitt Local Court on 29 January 2021 where bail was refused.

Legislation and legal principles

1. [38]

   The CHROA relevantly provides:

2. [39]

   Section 4 defines serious offence as, relevantly, meaning:

3. [40]

   Section 5A defines serious violence offence as, relevantly, meaning:

4. [41]

   Section 9 relevantly provides:

5. [42]

   Section 3 provides:

6. [43]

   When discussing the concept of “unacceptable risk”, Hoeben CJ at CL in Azar (Preliminary) said:

Risk Assessment Report

1. [44]

   A Risk Assessment Report was prepared by Mandy Lau, a forensic psychologist in the Serious Offenders Assessment Unit. In her executive summary, Ms Lau said this:

2. [45]

   At the time of that report, 20 March 2020, the defendant was a participant in the VOTP but, as explained above, he did not complete that program.

3. [46]

   Ms Lau said that the defendant reported that he commenced cannabis use when he was approximately 14 or 15 years old, and that appeared to coincide with his self-report of when he first experienced voices and when his family observed significant behavioural changes. He reported daily cannabis use until his incarceration, as well as consumption of Zanax and methamphetamine. Although the defendant denied illicit drug use in custody, the prison records indicated three positive results from urinalysis testing, with the most being in February 2020.

4. [47]

   At the time of the index offence, the defendant’s mental condition had not been diagnosed. When he first came into custody there was some dispute regarding his diagnosis. By the time he came before the Tribunal in 2016, he had been diagnosed with schizophrenia with active symptoms. He reported first hearing voices at the age of 15 years, and said that these symptoms were disruptive to his daily functioning prior to the commission of the index offence.

5. [48]

   At the time of the interview with Ms Lau, the defendant had previously been assessed using the Level of Service Inventory – Revised. That is an actuarial risk instrument that provides an indication of the level of risk of general and violent recidivism within 12 months post-release, and of an individual’s needs in terms of supervision in custody and if released on parole. It consists of both static and dynamic risk factors. At his assessment in November 2018 his risk/needs were assessed as falling within the high risk category for general and violent offending. Ms Lau assessed him using the Violence Risk Scale. His scores placed him in the high risk category for reoffending.

6. [49]

   During the assessment, Ms Lau said that the defendant demonstrated poor insight into his mental illness, and expressed an understanding that his psychosis was drug induced and was only a temporary condition. He said that he wished to cease taking medication back in the community.

7. [50]

   Ms Lau said that, given his poor insight, it appeared unlikely that he had developed a thorough understanding of the relationship between his mental illness and his violence. She said that this might negatively impact on his motivation to adhere to the long-term management of his mental health, and increase his likelihood of lapsing to illicit substance use for temporary relief, which could in turn increase his risk of violence.

8. [51]

   Ms Lau concluded by saying:

Expert reports

1. [52]

   Pursuant to orders made by Hoeben CJ at CL, the defendant was examined by Dr Susan Pulman, a clinical neuropsychologist and forensic psychologist.

2. [53]

   Dr Pulman noted that the defendant had completed the Wechsler Abbreviated Scale of Intelligence (WASI-II) in March 2019. Results of that assessment indicated impaired intellectual functioning in terms of both verbal and nonverbal cognitive functioning. Dr Pulman administered the fourth edition of the Wechsler Adult Scale of Intelligence (WASI-IV). The defendant performed in the Extremely Low range and at the 2nd percentile on the Verbal Comprehension Index. His performance on the Perceptual Reasoning Index fell in the borderline range and at the 5th percentile. These results were consistent with a mild intellectual disability.

3. [54]

   His basic auditory attention span was in the borderline range, but on measures of processing speed his performance fell within the average range. The significant discrepancy between his verbal comprehension and his processing speed meant that although he had an impaired understanding of verbal concepts, his reaction time was within the normal range. Dr Pulman said that he was therefore likely to misunderstand information, yet react quickly without having given due consideration to what he had heard or understood. Similarly, she said, his attention and concentration abilities were impaired. His inability to concentrate and attend to information adequately further exacerbated his risk of overreacting given his processing speed is much faster than his ability to pay attention and comprehend what he hears or understands. He was therefore at a greater risk of overreacting and misunderstanding information presented to him.

4. [55]

   Dr Pulman also assessed him on the structured professional judgement tool called the Historical Clinical Risk Management-20. She assessed his risk of future violent reoffending as high. That rating was heavily influenced by his past history of mental illness, his limited insight into his mental illness, non-compliance with treatment and relapse into drug use.

5. [56]

   Dr Pulman said that the defendant’s relapse into substance use was a known fluctuating risk factor. Although he maintained his commitment to leading a drug-free lifestyle, he relapsed into drug use on parole and became increasingly aggressive, committing further violence related offences against his sister and uncle’s property. Dr Pulman said that the defendant would require close monitoring and supervision to ensure he was compliant with his medication and remained abstinent from drug use.

6. [57]

   Dr Pulman considered that a CTO was required due to his continuing condition and his history of non-compliance with treatment. Although such an order was necessary to treat and manage his mental illness, Dr Pulman said that further monitoring and supervision was required to manage the risk of him committing a further serious offence in the community. Dr Pulman recommended that an ESO should be in place for a minimum of three years.

7. [58]

   The defendant was also examined by Dr Richard Furst, a forensic psychiatrist. Dr Furst diagnosed him with schizophrenia and Substance Use Disorder (cannabis, amphetamines, opiates). Dr Furst said that treatment generally involved a combination of antipsychotic medication and psychosocial support, including case management and assertive psychiatric follow-up. He said that facilitation of assisted living, supported housing, supported employment and family-based interventions also assist in reducing the impact of schizophrenia on sufferers.

8. [59]

   Dr Furst considered that the defendant’s young age, prior criminal history before the index offence, serious mental illness and his Substance Use Disorder were all factors that suggested his risk of future homicide was likely to be well above the risk seen in a Western Australian study conducted between 1984 and 2005 which Dr Furst discussed. He said that, similarly, his risk of committing a serious offence either of a violent or sexual nature was likely to be well above the rate evident in the same study.

9. [60]

   Dr Furst considered the defendant’s risk factors and how a person with those factors, both historical and dynamic, might influence the likelihood of future offending. Dr Furst said:

10. [61]

    Dr Furst was asked if he thought the risk of committing a further serious offence could be managed in the community. He said:

11. [62]

    Dr Furst endorsed the risk management report of Ms Alexandra Crichton dated 13 May 2020. Dr Furst said also that in relation to the proposed conditions of his ESO, the schedules in relation to supervision, electronic monitoring and schedule of movements were reasonable in relation to ensuring compliance, but the most important issue in relation to compliance would be ensuring his attendance at mental health appointments. He said drug and alcohol prohibitions were indicated, and testing to ensure abstinence from alcohol and illicit drugs were indicated.

12. [63]

    Dr Furst said:

13. [64]

    Dr Furst thought that the defendant would probably benefit from three years of supervision under an ESO in the first instance. He said that period would allow for the sustained treatment of mental illness in the community.

Submissions

1. [65]

   The defendant does not dispute that the requirements set out in s 5B(a)-(c) are made out. In relation to (d) the defendant did not contest that he presents a risk of reoffending and, to some degree, of committing a future serious violence offence. The defendant’s primary contention was said to be that the unacceptable risk test under that paragraph has not been met. One reason it has not been met, it was submitted, is that an ESO will do nothing to reduce the risk of reoffending and, as a result of likely repeated breach action and a cycle of incarceration, the order may actually increase his risk of committing a future serious violence offence.

2. [66]

   The defendant submitted that the structure of (d) incorporates a consideration of the effectiveness of any potential order being imposed. That is said to be because the concluding words of the paragraph are “if not kept under supervision under the order”. The defendant says that the proposed order does little to reduce the unacceptability of the risk, or may actually increase the risk. In that way the test has not been met. The defendant also relied on what was said by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29], submitting that he supported that construction.

3. [67]

   The defendant also pointed to a mandatory consideration in s 9(3) being paragraph (e2) being:

4. [68]

   The defendant submitted further that the legislation should not be used in lieu of parole or mental health legislation. Of course, the defendant had completed his entire sentence, so the use of parole is an irrelevant consideration. In relation to mental health legislation, the defendant submitted that the FCTO would be adequate to deal with the defendant’s mental health and associated issues.

Determination

1. [69]

   The defendant particularly relied for his argument that the unacceptable risk test has not been met on the concluding words of paragraph (d), and what was said in Naaman (No 2) at [29(6)]. It is important, however, to understand what was said in Naaman.

2. [70]

   It should first be noted that Naaman involved an application under the Terrorism (High Risk Offenders) Act 2017 (NSW). Although that Act has a number of similarities with the CHROA, particularly as to its phraseology, the enquiry under that Act involves a number of different considerations. The analogous section to s 5B of the CHROA is s 20 of the Terrorism (High Risk Offenders) Act. Paragraph (d) of that Act has as a requirement:

3. [71]

   The Court said this in relation to (d) at [29]:

4. [72]

   It may be observed from the paragraph commencing “Sixthly” that the comparison between the risk if the defendant was not under supervision with the risk if he was under supervision does not form part of the consideration of the Court being satisfied to a high degree of probability that the offender poses an unacceptable risk. Rather, that is one discretionary consideration which a court can take into account if it is otherwise satisfied of the unacceptable risk.

5. [73]

   It should also be noted that in Naaman at [4], the Court determined that the State had not shown there was an unacceptable risk of the respondent committing a serious terrorism offence, but that finding had nothing to do with the issue of the same risk existing whether or not the offender was supervised.

6. [74]

   It is then necessary to say something about paragraph (e2) in s 9(3) of the Act upon which the defendant places some reliance. That paragraph, as with the others, is a mandatory consideration.

7. [75]

   The paragraph and a related one were introduced into both ss 9 and 17 of the CHROA by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW). Those paragraphs provide:

8. [76]

   It is a little difficult to understand the purpose of the paragraphs in s 9 in the light of what was said by the Attorney-General in the Second Reading Speech. The Attorney-General said relevantly:

9. [77]

   It is not clear, therefore, why the these paragraphs were inserted in s 9, particularly paragraph (e2), because the purpose of the paragraphs seems directed towards the position where, if the Court could not be satisfied an offender would comply with the obligations of an ESO, it would be appropriate to impose a CDO. Such a position is possible only where the Court is determining an application for a CDO, because of the options available to it under s 17. It is not possible when a court is determining an application for an ESO for the Court to impose a CDO: s 9(1).

10. [78]

    However, whatever the relevance of paragraph (e2) in s 9(3), it is not a determinative matter but merely one of the mandatory considerations. I do not consider that it would be inappropriate to make an ESO, where there is an unacceptable risk of the defendant committing another serious offence if not kept under supervision, simply because an offender may not comply with the obligations of an ESO.

11. [79]

    This issue of non-compliance was said to form the basis for a conclusion that the imposition of an ESO would not make it less likely that the defendant would commit another serious violence offence, and may make it more likely that he would do so, because of the effect of possible repeated returns to custody for breaching the terms of his ESO.

12. [80]

    In the present case, the evidence does not support the submission that the risk will not be reduced, or might even by increased, if an ESO is put in place. The evidence of both Dr Furst and Dr Pulman was that the primary benefit of the ESO was that it would increase his chance of taking medication and engaging with local mental health services. They both accepted that his intellectual disability would make it more difficult for him to comply with the conditions imposed on him and that it was likely he would breach his conditions on multiple occasions.

13. [81]

    Dr Furst was asked if he would accept that multiple returns to custody would regress the defendant’s rehabilitation, and he said:

14. [82]

    After the defendant was recently charged with failing to comply with the conditions of his ISO and was returned to custody, Dr Furst was asked to provide a further report, answering particular questions in relation to that non-compliance and return to custody. Dr Furst said that the new information did not cause him to revisit his earlier opinions. He also said:

15. [83]

    That evidence shows that, although there may be breaches and even returns to custody, the risk of further serious offences will not be increased, and the imposition of the ESO is still likely to be beneficial, not only in helping to protect the community, but also for the rehabilitation of the defendant.

16. [84]

    I do not consider that the CHROA is being used here in lieu of mental health legislation. When it was put to Dr Furst that there would be no difference between the CTO and the ESO requiring compliance with the CTO, Dr Furst said he thought that the ESO would have a greater chance of the defendant complying with the CTO because there is a potential criminal penalty. In that way Dr Furst said the defendant needed extra incentive while in the community to comply, given that there had been difficulties even in custody concerning his compliance with the CTO.

17. [85]

    The defendant submitted that he only has one serious offence on his record, and that was committed when he had an undiagnosed schizophrenia. Moreover, he submitted, he does not have a lengthy criminal record, nor does he suffer from a diagnosis that by its nature predisposes him to committing a serious offence.

18. [86]

    However, as Wilson J said in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at ]71]:

19. [87]

    Here, there is a need to focus on the gravity of the risk. As Dr Furst said:

20. [88]

    All of the evidence, including the risk management report prepared by Ms Crichton satisfies me to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence of violence if not kept under supervision pursuant to an ESO. There are no matters which would lead me to exercise my discretion against making such an order.

Conditions

1. [89]

   The defendant submitted that the conditions should only be directed to his primary risk factors which were his substance abuse and his mental health issues. In particular, the defendant opposed a condition which imposed a schedule of movements. This was submitted to be a draconian measure accompanied by high risk that the defendant will become overwhelmed or will inadvertently breach the requirement. It was submitted that it was not directed towards the defendant’s risk of committing a spontaneous act of violence, nor did it facilitate his rehabilitation.

2. [90]

   The defendant submitted also that the conditions required a preamble to make very clear the difficulties he faced because of his intellectual and mental health issues. It was said that the preamble should read as follows:

3. [91]

   Finally, the defendant’s counsel tendered a schedule of conditions in simple English which were said to be more suitable for the defendant to understand.

4. [92]

   The plaintiff prepared a schedule of its proposed conditions. The schedule contained a column recording the defendant’s approach to particular conditions (on the assumption that the simplified conditions will not be imposed) and the plaintiff’s response. Before dealing with particular conditions, I will deal with the defendant’s general submissions.

5. [93]

   In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL said this concerning conditions:

6. [94]

   In my opinion, a schedule of movements is a necessary requirement in the circumstances. A similar submission was made by the defendant to Hoeben CJ at CL at the preliminary hearing. Justice Hoeben said at [116]:

7. [95]

   I agree with those remarks. Dr Furst said in his oral evidence that the defendant needs “strong supervision”. When the very basis of the ESO is a determination that there is an unacceptable risk of the defendant committing a further serious violence offence, the defendant’s DSO needs to know exactly where the defendant is until the defendant is able to be trusted. His experience when released to parole was an unhappy one, with the defendant endeavouring to make contact with antisocial people, including people in the drug milieu. As part of the defendant’s rehabilitation he needs structure in his life. Although in many respects the defendant is no different from many other people the subject of ESOs who have intellectual difficulties and mental health issues, where his index offence was an unlawful homicide and he continues to threaten to kill people when frustrated and commits acts of violence, any apprehension that he will be overwhelmed by this condition is secondary to the strong need for such a condition.

8. [96]

   In relation to the submission concerning a preamble, I do not consider that I have the power to direct that the conditions have such a preamble. Section 11 only provides for the imposing of conditions. It does not enable the Court to direct the DSO or other people involved in the enforcement of the ESO how they should go about their task. In any event, it can be reasonably assumed that the DSO and others will have all necessary information concerning the difficulties under which the defendant labours. As I noted in the previous paragraph, this defendant is not unique in having intellectual difficulties, mental health and substance abuse issues, and even some form of oppositional disorder as the experts describe.

9. [97]

   I was initially attracted to the idea of simple English conditions as proposed by counsel for the defendant being imposed. These conditions were first identified when Kelli Grabham, a High Risk Offender Applications and Operational Governance Officer at the ESO Team, was in the witness box and was being cross-examined by Mr Bhutani for the defendant. The cross-examination in relation to the document was this:

10. [98]

    The basis for these questions from the defendant’s counsel appear to have been two paragraphs of Ms Grabham’s affidavit which said:

11. [99]

    I was concerned, however, that the production of these conditions had taken counsel for the State and representatives of the Crown Solicitor by surprise. After the hearing, my associate then wrote at my direction to the legal representatives for the parties, saying that I was minded to impose plain English conditions, but giving the State (first) and subsequently the defendant the opportunity to make further submissions about those conditions, including concerning whether or not they should be imposed and, if so, whether there needed to be additions, omissions or variations to those put forward by the defendant. The parties subsequently lodged further submissions.

12. [100]

    Having considered those further submissions, and having read in some detail the OIMS Case Note reports from the time the defendant was released at the end of his sentence until he was returned to custody on 23 January 2021, I do not intend to impose the simplified conditions put forward on behalf of the defendant. There are two principal, but related, reasons for that.

13. [101]

    There is no doubt that the defendant has what Dr Furst and Dr Pulman refer to as a mild intellectual disability. The term “mild” should not be misunderstood in the circumstances. I discussed at [53] and [54] above what Dr Pulman said of this designation, and how it was likely to affect the defendant in relation to his processing of information.

14. [102]

    Rather surprisingly, counsel for the defendant did not ask either of the experts to read and comment on his proposed conditions, nor was it suggested to them that the defendant might have difficulties understanding the conditions put forward by the State. Indeed, the cross-examination of the experts concerning how the defendant’s intellectual disability would affect his compliance with the conditions was this:

15. [103]

    That evidence does not lead to any conclusion that the conditions proposed by the State are not likely to be understood by the defendant, although it might suggest he will have difficulty complying with some of those conditions. Further, as I noted earlier at [63], Dr Furst said that the defendant “probably has sufficient intellectual capacity to understand the conditions and expectations of the proposed extended supervision order”. Dr Furst went on to say that his capacity to comply with them remains to be seen.

16. [104]

    The second and related reason is that nothing in the OIMS Case Notes for the defendant’s post-release period suggests that there was in fact any difficulty in the defendant understanding his conditions. The position was, rather, that he frequently complained of being bored, and he wanted to engage in behaviour (contacting the wrong people through Facebook, going to places not in accordance with his schedule of movements) that was not permitted. His frustration arising from the various restrictions, and what appeared to be a rise in the level of his aggression from his underlying schizophrenia, led ultimately to behaviour that breached the warning that had been given, and to his arrest and charging.

17. [105]

    Counsel for the defendant pointed to what the defendant said in his affidavit at paragraph 3:

18. [106]

    Dr Pulman pointed out that the difficulty was not so much understanding as reacting before he has considered what he has heard. This arises from the difference between his verbal comprehension and his processing speed.

19. [107]

    Whether the approaches set out in paragraphs 17 and 18 of Ms Grabham’s affidavit (set out at [98] above) are necessary for the defendant is not apparent, because neither he nor those writing the OIMS Case Notes nor the evidence from the experts suggests that there is anything other than a compliance problem, and that such compliance difficulties as the defendant has do not arise from any lack of understanding what he is required to do and refrain from doing.

20. [108]

    The issue of conditions being drafted in a simple way for defendants who may have difficulty understanding more complex ones was raised and considered in State of New South Wales v Neal [2018] NSWSC 1806. As may be seen from my reasons at [44] to [47], I did not impose the plain English conditions in that case. There were two principal reasons for that. First, I was dealing with a preliminary hearing for an ISO. Secondly, I did not consider that the plain English conditions adequately dealt with the need for certainty as to the rights and obligations of both the offender and the DSO. An important consideration is that the conditions define the rights and obligations of both the defendant and the DSO, but that does not mean that plain English conditions may not be apt do that in an appropriate case.

21. [109]

    My attention has subsequently been drawn to the decision of Hamill J in State of New South Wales v Carr [2014] NSWSC 1348. That case involved an offender with drug and alcohol issues. There was evidence from a psychologist who had been involved in the defendant’s supervision for some years that the defendant may not comprehend the nature of the conditions, either because he did not understand the words or, if he did, he did not understand the purpose behind the supervision order. Plain English conditions were largely agreed between the parties in the light of that evidence. Those conditions were simply expressed, and addressed the defendant in the third person: see for example at [65]:

22. [110]

    The conditions put forward by the State in the present matter are drafted in a reasonably straightforward way and are generally easy to understand. To the extent that the defendant has any difficulties with comprehension the ESO team will, no doubt, adopt one or more of the methods set out in Ms Grabham’s affidavit to advance the defendant’s understanding. It is certainly clear that it was no lack of understanding on the defendant’s part that led to his breach and arrest in January 2021.

23. [111]

    Prior to the hearing and, therefore, prior to any suggestion on behalf of the defendant that any simplified version of the conditions should be ordered, the defendant proposed some amendments to the State’s proposed conditions that formed part of the amended summons. I will now deal with those conditions where modifications or changes were proposed by the defendant. As a result of changes made, including omissions, to the conditions originally proposed by the State in the amended summons, the condition numbers in the schedule to these reasons have altered from the condition numbers that were put forward by the parties and which I dealt with in my reasons which were delivered on 11 March 2021. The condition numbers which follow have been amended to accord with the condition numbers in the schedule to this judgment.

24. [112]

    The State proposed that condition 1 should read as follows:

25. [113]

    The State opposes the addition of those words and relies on what was said by Button J in State of NSW v Biber (No 2) (Final) [2021] NSWSC 104. The condition that was sought in that case by the defendant was identical to what is proposed in the present case. Justice Button thought that there was no significant difference between the two proposals but went on to say at [61]:

26. [114]

    In my opinion, the condition proposed by the State should be ordered.

27. [115]

    Conditions 5 to 7 dealt with the schedule of movements. These were opposed in their entirety by the defendant. The matter has been dealt with earlier.

28. [116]

    The State proposed that condition 10 should read:

29. [117]

    Ms Grabham says in her affidavit that this condition is used primarily as an adjunct to case management strategies, and a further consideration is the critical nature of stable accommodation for the defendant in supporting other risk and case management strategies. She says that attempts are being made to source appropriate supported accommodation through the NDIS which would provide the defendant with a supported independent living environment.

30. [118]

    In my opinion, it would be entirely unsatisfactory if the defendant was able to thwart the efforts of CSNSW to find stable accommodation by behaving in a way which would threaten his remaining in the accommodation. The condition should remain.

31. [119]

    Condition 13 proposed by the State is as follows:

32. [120]

    No submissions were made on behalf of the defendant in relation to condition 13. The State submits that this condition along with condition 12, which requires the defendant not to spend a night anywhere other than his approved address without the approval of a DSO, are required for the DSO to monitor antisocial associations, which is one of the defendant’s risk factors. It also enables the DSO to conduct assessments of proposed persons with whom the defendant wishes to spend the night, and any risks that this may pose.

33. [121]

    In my opinion, the condition should be included.

34. [122]

    The State proposes that condition 21 read:

35. [123]

    Although the defendant objected to this condition, no submissions were made on behalf of the defendant in relation to it. The condition is a necessary adjunct to other conditions, including the fact that the defendant must not possess or consume alcohol without the prior approval of a DSO, and a condition that he must submit to alcohol testing.

36. [124]

    The condition should be included.

37. [125]

    The State proposes that conditions 23 and 24 read as follows:

38. [126]

    Again, although these conditions were objected to, no submissions were made on behalf of the defendant explaining why. In my opinion, these conditions, or some form of them, are necessary to ensure that the defendant can be monitored in relation to those persons with whom he mixes. Antisocial relationships are a particular problem in the defendant’s case.

39. [127]

    These conditions should be included.

40. [128]

    The State proposes that this condition should read:

41. [129]

    The defendant proposes that the condition read:

42. [130]

    The State does not oppose the defendant’s proposed condition. The defendant’s proposed condition is appropriate because it assists in giving a degree of autonomy to the defendant. It should be substituted for what the State had proposed.

43. [131]

    These conditions concern access to the internet and other forms of electronic communication. In short, the conditions are designed to ensure that the DSO can supervise the defendant’s use of his phones and computers. In that way the defendant must supply passwords, telephone numbers and other related details, and must provide consent to the DSO to access the defendant’s internet account remotely. The conditions also prevent the defendant deleting or altering applications, emails, text messages etc, and they provide for the defendant to give consent for his telephone provider and internet service provider to share information with the DSO about his accounts.

44. [132]

    The defendant opposes these conditions entirely. Counsel submitted that there was nothing inherent in his risk profile that suggested he might use the internet in a way that could lead to the commission of future serious violent offences. The defendant said the conditions did not sufficiently go to the relevant risk.

45. [133]

    It is apparent that the conditions do not prevent the defendant from using the internet or accessing social media. They are designed only to ensure that there is some form of supervision in that regard. The OIMS case notes demonstrate that after the defendant was released from custody he wanted to access Facebook to contact antisocial peers from his past. There is a real risk that the defendant could wrongly use electronic communication to acquire drugs. Any use of drugs by the defendant would be bound to exacerbate his underlying mental health issues, including his propensity for violence when frustrated.

46. [134]

    These conditions should be included.

47. [135]

    The State proposes the following condition 40:

48. [136]

    It is not clear what form the defendant seeks that condition 40 should take, because the drafting of the defendant’s condition 40 is identical with that of the State. I note that at the preliminary hearing the State had proposed a different form of condition 40, but after objection proposed condition 40 in its current form. That was the form approved by Hoeben CJ at CL at [156]. In my opinion, the condition is appropriate.

49. [137]

    Conditions 45 to 52 deal with medical intervention and treatment. The State proposes the following:

50. [138]

    The defendant proposes the following in lieu of those conditions:

51. [139]

    Conditions 45 and 46 as proposed by the defendant are in an identical form to that put forward by the State.

52. [140]

    In my opinion, condition 47 proposed by the defendant in relation to the sharing of information is completely unworkable. A similar proposal was put forward in State of New South Wales v Currie (Preliminary) [2021] NSWSC 175. In respect of this proposed condition I said at [66]:

53. [141]

    I adhere to that view. In my opinion, conditions 42 to 52 as sought by the State should be included.

Conclusion

1. [142]

   I make the following orders: