State of New South Wales v Devaney (Second Application) (Final)

1. [1]

   I have conducted the final hearing in the second application brought by the State of New South Wales (the State) for an Extended Supervision Order (ESO) against Mr Devaney. I conducted the necessary preliminary hearing on 16 December 2024 and made orders under s 7(4), an interim supervision order (ISO) from 3 February 2025 for a period of 28 days under s 10(c)(1) (which I have since renewed for two further periods of 28 days, the last period concluding on 26 April 2025) and imposed conditions on the ISO under s 11. All references to legislation in this judgment are references to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) unless otherwise specified. At the preliminary hearing there was no issue that the statutory pre-conditions mandated by s 5B(a)-(c) were satisfied. Only the question of unacceptable risk specified in s 5B(d) was contested: State of New South Wales v Devaney (Second Application Preliminary) [2024] NSWSC 1621 at [9].

Preliminary point

1. [2]

   Mr Devaney’s index offence was a charge of shooting with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW) (Crimes Act) to which he had pleaded guilty in the District Court. The offending was committed on 8 May 2008 and the victim was Mr Devaney’s sometime girlfriend who had previously ended her relationship with him. Mr Devaney disguised himself and entered the victim’s place of work, shooting at her with a pistol with which he had armed himself. The victim turned to run, and Mr Devaney discharged the pistol three times wounding the victim twice, through her abdomen and through her lower abdomen. There were also exit wounds.

2. [3]

   He also pleaded guilty to two counts of unauthorised possession of a prohibited firearm or pistol contrary to s 7(1) of the Firearms Act 1996 (NSW) and a further count of unauthorised possession of a firearm contrary to s 7A(1) of that legislation. The relevant firearms were a semi-automatic .22 calibre Beretta pistol, a loaded .22 calibre Phoenix arms pistol fitted with a silencer, and a loaded automatic .45 calibre Norinco pistol. This last-mentioned firearm was the intended murder weapon. Other offending was taken into account on a form 1.

3. [4]

   In written submissions prepared in advance of the final hearing, Mr Wilcox of counsel, who appeared for Mr Devaney, argued that the index offence was not a “serious violence offence” as defined in s 5A and accordingly, the essential pre-condition to making an ESO specified in s 5B(a), being that Mr Devaney has served a sentence for a “serious offence”, could not be satisfied. Counsel relied upon the decisions of Yehia J in State of New South Wales v Dennis (2024) 14 NSWLR 215; [2024] NSWSC 388 (Dennis) and State of New South Wales v Hamze (Final) [2025] NSWSC 6.

4. [5]

   As it happened, the decision of the Court of Appeal in State of New South Wales v Hamze [2025] NSWCA 22 (Hamze) was handed down on the day that the final hearing was listed before me. The Court of Appeal (Bell CJ, Ward P and Kirk JA) overruled the decision below (Bell CJ at [1], Ward P at [2] and Kirk JA at [74] and [78]). Necessarily, Yehia J’s decision in Dennis was disapproved of.

5. [6]

   As counsel had not yet had the opportunity to consider Hamze, I took the evidence at the final hearing and asked Counsel to confer after my decision was reserved to attempt to reach an agreement about whether Mr Wilcox’s argument was maintainable. Counsel (and their instructing solicitors) were able to agree that, in conformity with the reasoning of Kirk JA (Bell CJ and Ward P agreeing), Mr Devaney’s index offence was caught by the definition of a serious violence offence because, in accordance with s 5A(1)(b), it was an attempt to commit an offence “of the kind referred to in paragraph (a)” of s 5A(1).

6. [7]

   I am satisfied that counsels’ agreement was properly made and conforms with the reasoning of the Court of Appeal in Hamze. The legal elements of an offence contrary to s 29 Crimes Act that are relevant for present purposes are “whosoever – shoots at … any person with intent … to commit murder, shall … be liable to imprisonment for 25 years”. It is important to record that the infliction of bodily injury is not a legal element of the offence. To constitute the crime of murder, it is sufficient that the intent of the accused when performing the fatal act is an actual intent either to inflict grievous bodily harm upon, or to kill, the victim. For s 29, it is implicit that an intent to commit murder involves an intention to kill. Given Mr Devaney’s plea of guilty, he must be taken to have had that actual specific intent when he shot at the victim.

7. [8]

   It is sufficient for present purposes to understand the reasoning of the Court of Appeal by principal reference to paragraphs [54] and [74] of the judgment of Kirk J:

8. [9]

   It is beyond doubt that the index offence is a serious violence offence as defined.

Issues

1. [10]

   It follows from my acceptance of the agreement of counsel regarding the effect of the Court of Appeal’s decision in Hamze upon this case, that the State has established each of the pre-conditions to the making of an ESO formulated in s 5B(a)-(c): Mr Devaney is an offender who has served a sentence of imprisonment for a serious (violence) offence in custody (s 5B(a)); he is a supervised offender under the current ISO (s 5B(b)); and, the application for the order was made in accordance with s 6 (s 5B(c)) (see State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 at [124]-[126], per Simpson AJA, Bell CJ and Beech-Jones JA agreeing).

2. [11]

   At [2] of Mr Wilcox’s written submissions dated 20 February 2025, the remaining issues for determination are as follows:

   1. (1)

      the State has not established to a high degree of probability that Mr Devaney poses an unacceptable risk of committing another serious violence offence if not kept under supervision under an ESO;

   2. (2)

      in the exercise of the Court’s discretion, the application for an ESO should be dismissed, in any event (s 9(1)(b)); and

   3. (3)

      if an ESO is made, Mr Devaney should not be subject to any condition authorising electronic monitoring (s 11(1)(e)).

The mandatory considerations

1. [12]

   In accordance with the Common Law Practice Note of this Court relating to proceedings brought under the Act, the parties have prepared a joint statement of agreed facts for the final hearing, which informs my decision on the facts and also follows s 191(2) of the Evidence Act 1995 (NSW) (Practice Note SC Cl 12 [26](i)).

2. [13]

   Mr Devaney was born in October 1970 and is 54 years of age. He has been subject to supervision under the Act since November 2021 pursuant to various ISOs and the ESO made by Dhanji J on 4 February 2022 (see State of New South Wales v Devaney (Final) [2022] NSWSC 60).

3. [14]

   He is the elder of two siblings and grew up in a pro-social and loving family home. As his father was working as a police officer, the family moved from time to time in accordance with his postings.

4. [15]

   Mr Devaney left school in his late teenage years after completing Year 11. He unsuccessfully attempted to complete his secondary schooling by other means as a prerequisite to joining the New South Wales Police Force. Clearly, this did not eventuate.

5. [16]

   Mr Devaney fell in with bad company, abused illicit substances and engaged in anti-social activities. His occupational history included work as a labourer, personal trainer and security guard. He attained a very high ranking in Australia in the martial art of kickboxing and represented Australia in that sport. Mr Devaney developed associations with members of an outlaw motorcycle gang.

6. [17]

   During a trip overseas in about 2006, Mr Devaney may have undergone what he believed to be a paranormal religious experience, but more likely may have been the onset of his schizophrenia which remained undiagnosed until the index offending. During this holiday, he also apparently undertook firearms training in Thailand. After returning to Australia, he suffered a serious workplace injury which rendered him unable to work for an extended period.

7. [18]

   He commenced the use of cannabis and alcohol as a teenager. At the comparatively late age of 29 he began abusing amphetamines and cocaine. Inpatient drug rehabilitation treatment he participated in prior to the index offending was unsuccessful.

8. [19]

   On 23 March 1995, at the age of 24, Mr Devaney committed an armed bank robbery of the Commonwealth Bank branch located at Blackheath, NSW. He armed himself with a pistol with which he struck a customer on the side of the head. He pointed the gun at a teller as part of his demand for money. He made away with $9,643.

9. [20]

   On 29 May 1995, Mr Devaney robbed another bank branch in the Blue Mountains, NSW. This time, it was the Westpac branch at Blaxland. Having disguised his appearance, he entered the branch armed with a firearm which he discharged in the course of the robbery. After threatening staff, he made away with a bag containing $35,640 in cash. Once outside, he fired a shot into the air.

10. [21]

    He was arrested after this incident and, on his plea of guilty, was sentenced by his Honour Judge O’Reilly in the District Court on 13 October 1995. His Honour structured sentences to produce a total effective sentence of 7 years imprisonment with an effective non-parole period of 3 years and 9 months backdated to the applicant’s arrest on 29 May 1995. His Honour noted that Mr Devaney had made full and frank admissions to police. He was otherwise of good character and the product of a good home. He was receiving psychological treatment in custody. A corrective services psychologist noted, inter alia, symptoms of anxiety, paranoia and obsessiveness but no reference to Schizophrenia was made at that point in time, although the constellation of symptoms may be telling. The sentencing judge was satisfied that the applicant was well motivated towards rehabilitation.

11. [22]

    It may be of note that Mr Devaney was diagnosed with depression in 1997 due to a former partner terminating their relationship while he was in custody. He felt humiliated and suicidal and consequently was prescribed anti-depressant medication. He was released on conditional parole on 28 November 1998.

12. [23]

    Mr Devaney’s parole order was revoked on 20 May 1999 when he was charged with demanding property with menaces. This charge was subsequently dismissed, and the revocation order itself was rescinded on 5 July 1999. He was then charged with committing serious driving offences on 18 September 2000. The driving offending involved something of a police pursuit. After a sentence severity appeal to the District Court, Mr Devaney was sentenced to a 200-hour Community Service Order and his license was disqualified.

13. [24]

    When he was nearly 30 years of age, he formed a relationship with the victim of the index offending.

14. [25]

    On 29 December 2002, Mr Devaney was charged with using a false instrument referrable to the possession of a false driver’s license. On 29 March 2003, he committed two offences of assault occasioning actual bodily harm and one of having custody of a knife in a public place. He headbutted one male victim and head-locked a second. When apprehended, he was found to have $3,596 in cash and a four-inch flick knife on his person. This incident resulted in the imposition of fines only.

15. [26]

    A short time after separating from the victim of the index offending, on 23 November 2003, Mr Devaney committed the offences of intimidate with intent to cause fear using a carriage service to menace or harass. The second offence partly consisted of text messages sent to the victim during which he referred to prohibited firearms and a desire to have a shootout with police. He threatened violence against the victim in these text messages. On the same day, he cut off the passage of the victim’s car on the carriageway by overtaking her and braking heavily in front of her. When the victim drove to the police station for help, he followed her. This offending was dealt with by fines.

16. [27]

    Following this incident, an apprehended violence order (AVO) was made for the protection of the victim of the index offending. Regrettably, Mr Devaney breached the AVO in August and September 2004. He committed three offences of contravening the AVO and stalking or intimidating the victim with intent to cause fear. Text messages included some of a sexual nature and contained threats of violence made in very abusive language. Mr Devaney was violent toward the victim’s brother and mother, maliciously destroying property belonging to the victim’s mother. The victim complained to police that Mr Devaney had been physically abusive during their relationship to the extent that he had burst her ear drum on one occasion. For this offending, Mr Devaney received an effective suspended sentence of 9 months duration. He was expected to complete drug and alcohol counselling and a domestic violence course.

17. [28]

    As I have said, the defendant undertook his overseas trip in 2006 and underwent his religious experience while visiting the Egyptian pyramids. After sustaining his workplace injury, Mr Devaney’s abuse of prohibited substances “spiralled” and his parents reported an observable deterioration in his mental health.

18. [29]

    On 24 August 2007, Mr Devaney committed the offences of common assault and stalk or intimidate with intent to cause fear against a male adult who had been engaged to drive him to a medical appointment for the workers’ compensation insurer. The violence included Mr Devaney using his kickboxing skills to kick the complainant in the head when he refused Mr Devaney’s request for a stop on the way home from the medical appointment. The charges were defended, but he was convicted and sentenced for the offences in April 2009 while in custody on remand for the index offending.

19. [30]

    At the same time, he was sentenced for another common assault committed on 24 December 2007 against a male cousin of his ex-partner, attempting to punch the victim with his left and right fists and kicking the victim in his lower leg.

20. [31]

    Mr Devaney failed to appear on 5 May 2008 in answer to the charge relating to the 24 August 2007 offences, causing a warrant to be issued for his arrest.

21. [32]

    Three days after failing to appear at Court, on 8 May 2008, at the age of 37, Mr Devaney committed the index offence that I have described above. He had been abusing amphetamines in the period leading up to that offending. While in custody on remand for the index offending, he was dealt with for the outstanding offences, receiving an effective sentence of 6 months imprisonment backdated to May 2008.

22. [33]

    In July 2010, Mr Devaney pleaded guilty to the index offences, and he was sentenced by her Honour Judge Syme on 3 June 2011 to an effective sentence of 15 years and 6 months imprisonment with a non-parole period of 11 years and 7 months. The offending was backdated to commence on 8 August 2008 to achieve a degree of partial accumulation with the sentence passed on 24 April 2009. On appeal (by majority), on 21 December 2012, the sentence was reduced to an effective sentence of 13 years imprisonment with a non-parole period of 9 years, producing an earliest possible release date of 7 November 2017. The head sentences expired on 7 November 2021.

23. [34]

    As I pointed out in my judgment following the preliminary hearing (at [18]), giving the reasons of the majority of the Court of Criminal Appeal, Allsop P (as the Chief Justice then was) observed (at [96]):

24. [35]

    It should be reiterated that the index offending involving his former girlfriend was extremely violent. The pistol used was a large calibre (.45) automatic Norinco pistol. The victim effectively suffered four gunshot wounds when one has regard to the entry and exit wounds of the two bullets which found their mark on her person. One bullet traversed a segment of the victim’s colon, I must say, very narrowly missing her left external iliac artery and vein. The perforation of the victim’s colon itself posed a significant risk to life. The victim required multiple surgeries involving a one week stay in hospital and ongoing treatment after her discharge. Consequences for the victim were both physical and psychological. From the Victim Impact Statement placed before me at the final hearing (s 21A(4)), the victim is far from recovered from the incident, especially from the effects of the severe psychological trauma.

25. [36]

    It was not until Mr Devaney was taken into custody for the index offending that the diagnosis of Paranoid Schizophrenia was made. A Justice Health psychiatrist who treated Mr Devaney in the Long Bay Prison Hospital considered that the onset of delusional beliefs could be traced, in the temporal sense, to what I have referred to as his paranormal, religious experience while visiting the Egyptian pyramids. In the opinion of the Justice Health psychiatrist, Dr Rosalie Wilcox, Mr Devaney had probably been acutely unwell for about six months before the index offence, during which period, his condition was entirely untreated. The symptoms of the illness involved the victim being incorporated in his delusional thoughts characterised by paranoid themes.

26. [37]

    Dr Stephen Allnut, who examined Mr Devaney for the prosecution, agreed with this psychiatric assessment. Dr Bruce Westmore, who assessed Mr Devaney in connection with the sentencing proceedings for the defence also agreed with the diagnosis. Dr Westmore agreed with Dr Wilcox that, while the disease did not interfere with Mr Devaney’s capacity to plan, implement and execute the index offending, his capacity for self-control had been severely or substantially impaired. He was stable at the date of sentencing but required long-term psychiatric support.

27. [38]

    A factor of considerable significance to the present assessment of risk is the longitudinal history of denial of diagnosis and refusal of, or opposition to, treatment on Mr Devaney’s part. As early as July 2008, Mr Devaney claimed to have faked his symptoms for legal reasons. He refused oral medication and was placed on depot antipsychotic medication before being discharged into the mainstream of the correctional system. Once stabilised and free from active psychosis, he was permitted to discontinue the depot medication in preference for oral antipsychotic medication. However, over time he ceased taking the medication and his condition deteriorated.

28. [39]

    He was re-admitted to the prison hospital for a period of around four months and again treated with intramuscular injections. Mr Devaney was noted to be definitely improved with these injections and would be much worse were they to be discontinued. When returned to the mainstream of the prison, he again claimed to be free of mental illness and not in need of medication. This on and off pattern of treatment continued to be a feature of Mr Devaney’s psychotic illness. Indeed, it continues to be a feature today where he, at times, continues to deny having a mental illness and assiduously attempts to persuade treating doctors and other medical personnel to reduce or eliminate his medication. During his time in custody, this recalcitrance, at times, became belligerent. He attempted to refuse treatment and his behaviour in custody became problematic with his consistent violation of the rules, displays of hostility, threatening behaviour towards others and the re-emergence of symptoms of psychosis including delusions and paranoid ideation. In its untreated state, his condition made him resistant to the educative and rehabilitative courses made available to him in prison.

29. [40]

    On 23 December 2014, a Justice Health psychiatrist questioned whether Mr Devaney had a chronic psychotic illness as he had been off medication for over twelve months and seemed stable. However, in or about March 2015, when he finally commenced the violent offender’s therapeutic program (VOTP) after steadfastly declining admission to the program previously he was perceived to present as increasingly paranoid.

30. [41]

    When assessed by a psychiatrist on 4 April 2016, Mr Devaney was prepared to acknowledge a diagnosis of a drug-induced psychosis, but not Schizophrenia. He claimed to have used crystal methamphetamine at least twice in custody. He was described as intimidating and sought to control the process. He was “vehemently opposed” to antipsychotic treatment. On 7 October 2016, after he had exhibited what mental health staff considered to be psychotic symptoms, he was transferred to the mental health screening unit where he was certified as mentally ill and scheduled under the Mental Health (Forensic Provisions) Act 1990 (now repealed). This resulted in what was his fourth admission to the Long Bay Hospital where he was treated with “long acting Clopixol injections” resulting in a significant improvement in his mental state. In January 2017, Mr Devaney was prepared to accept the diagnosis of his mental illness and the need for ongoing medication.

31. [42]

    This change in attitude seemed to initiate a long, though not permanent, period of acceptance and compliance on Mr Devaney’s part such that a psychiatric assessment on 25 July 2018 could be conducted. While diagnosing a chronic relapse in psychotic illness, the assessor spoke of his sustained remission and insight. However, he refused to accept that his illness was responsible for the index offending. There remained a range of psychotic symptoms including persecutory and grandiose delusional beliefs. His behaviour appeared stable in “striking contrast” to his past behaviour. Nonetheless, it was considered essential that Mr Devaney remain on antipsychotic treatment indefinitely. On 23 August 2018, Mr Devaney finally completed the VOTP.

32. [43]

    However, at the conclusion of his final session, he engaged in very threatening and intimidatory behaviour towards the female psychologists facilitating the course. His comments were misogynistic and indicative, at least as I read them, of paranoid and delusional thinking. When subsequently spoken to about this, Mr Devaney expressed a wish to apologise to the psychologists for his threatening behaviour. The VOTP report was positive in terms of the formulation by Mr Devaney of pro-social goals.

33. [44]

    Around the same time, he was said to be stable on long-acting injectable antipsychotic medication. In January 2019, he commenced VOTP maintenance sessions. He continued on the antipsychotic treatment into 2020. His symptoms remained quiescent, he was accepting of the diagnosis and showed insight, causing suggestions to be made that his medication could perhaps be reduced. At a psychiatric assessment on 23 April 2020, Mr Devaney’s chronic Schizophrenia seemed well controlled on a low dose of Clopixol with reduced side effects. Psychiatrists regarded the need for psychiatric care to be ongoing and expressed the view that a relapse would dramatically increase his risk of aggression. Following this assessment, Mr Devaney recommenced monthly VOTP maintenance sessions.

34. [45]

    On 6 August 2020, the Mental Health Review Tribunal (MHRT) made a twelve-month community treatment order (CTO), and on 26 October 2020, the State Parole Board made a parole order commencing on 6 November 2020, three years after he first became eligible for parole. He had twice been refused parole on 7 September 2017 and 24 October 2019 respectively on the grounds of the unacceptability of the risk of releasing him to the community.

35. [46]

    As can be seen from the foregoing, Mr Devaney was recalcitrant to opportunities to undertake rehabilitation while in custody during the first few years following sentence. At the risk of repeating myself, this was related to his denial of his psychotic illness and his refusal to accept treatment in respect of it. During this period, he did complete the “Getting SMART” program with a perfect attendance rate. As I have said, there seems to have been the beginnings of a change in attitude, at least in the early part of 2017. He completed a “Managing Emotions” program. The report of the facilitator was very positive. Mr Devaney’s work was comprehensive and to a high standard. He was also able to complete the VOTP program and commence maintenance sessions. But notwithstanding Mr Devaney’s great improvement, there were still lapses of composure resulting in intimidatory behaviour, which I have described above, which appeared to be due to his psychiatric illness.

36. [47]

    Since his release to parole, his compliance with both his parole conditions (s 9(3)(f)) and with the ESO imposed by Dhanji J (s 9(3)(i)) have been very promising. He has complied in all respects with the conditions of his parole and with the ESO without any significant or serious breach. He has generally complied with the CTOs to which he has been subject. I say generally because he has from time to time lapsed into denial of his mental illness and reluctance to accept treatment constantly advocating for a dosage reduction if not a complete elimination of his anti-psychotic medication.

37. [48]

    Given his past compliance, I consider it very likely that he will comply with an order in the future should I decide that one is warranted. Mr Devaney swore an affidavit for the purpose of the hearing on 20 February 2025 and subjected himself to cross-examination on behalf of the State. The content of the affidavit does bespeak a determination to participate in and continue with a pro-social life. In particular, he has continued his interest in physical fitness, attending a gym for weight training twice per week, participating in his former interests of boxing and kick boxing two or three times per week and walking for an hour each day. He attempts to adhere to a healthy diet. He is abstinent from use of illicit substances and very rarely drinks alcohol, other than on special or social occasions.

38. [49]

    Mr Devaney is fully engaged in the practice of his faith through his membership of the Catholic Church. He assists at a parish soup kitchen. He has joined lay charitable organisations within the church and has the support of members of the clergy known to him. Father Peter Carrol provided a reference which gave me the benefit of his observation that Mr Devaney “has made considerable effort to establish a genuine transition into the community through honest disclosure of his transition from imprisonment; having made contact with the local Catholic community and introducing himself to the parish priest; he has made contact with … a national organisation of Catholic laymen.”

39. [50]

    He also continues to enjoy the support of his parents. His father has major health problems, and he and Mr Devaney’s mother appreciate the visits that Mr Devaney is permitted to make to their Queensland home for the assistance he provides. They would prefer to see Mr Devaney live a normal life without supervision. However, they are adamant that “he should remain on his medication”.

40. [51]

    Mr Devaney also sought to explain some issues of concern in his associations that are raised by the State, which I will return to later in these reasons.

41. [52]

    Dr Carollyne Youssef is a clinical and forensic psychologist who prepared a report for the purpose of s 7(4) dated 5 February 2025. Dr Youssef expressed the opinion that Mr Devaney met the diagnostic criteria for a Paranoid Personality Disorder. She questioned the accuracy of a diagnosis of Schizophrenia. In her assessment, including her review of the extensive file, the Paranoid Personality Disorder appeared to be a more appropriate diagnosis. This was mainly because she did not regard Mr Devaney as exhibiting the negative symptoms typically associated with Schizophrenia.

42. [53]

    She also considered that Mr Devaney met the diagnostic criteria for a Substance Use Disorder of some severity but was now in sustained remission. She was not prepared to rule out the possibility that psychotic symptoms were related to the consumption of amphetamines. Dr Youssef utilised standard statistical and professional judgment tool analyses for the purpose of risk assessment. In particular, she applied the Violence Risk Appraisal Guide – Revised (VRAG-R). Mr Devaney’s score placed him in the sixth risk bin out of nine. Of offenders in this band, 34 per cent were expected to meet the criteria for violent recidivism within five years and 60 per cent within twelve years.

43. [54]

    Applying the Historical, Clinical and Risk Management -20 (HCR-20) professional judgment tool, Dr Youssef referred to: the High loading of historic risk factors; a High loading of clinical risk factors; a High loading for risk management factors; and a Moderate-High priority for intervention. She regarded the risk Mr Devaney presents for the commission of serious physical harm to be High, and the imminence of the materialisation of the risk to be presently Low-Moderate.

44. [55]

    Dr Youssef acknowledged the significance of the CTO and the role of the community mental health team (CMHT) in risk management. However, she considered, notwithstanding these supports, an ESO remains essential. Dr Youssef considered the potential fixation of Mr Devaney on the victim of the index offence was a critical issue in relation to risk management. I interpolate that in his affidavit and in his oral testimony, Mr Devaney denied any such fixation. He says that he has no desire to seek out or see the victim.

45. [56]

    Dr Kerri Eagle is a consultant forensic psychologist, and her s 7(4) report is dated 31 January 2025. Contrary to the opinion of Dr Youssef, Dr Eagle is firmly of the opinion that the defendant suffers from Schizophrenia. She accepts that the use of amphetamine substances in the past had precipitated and exacerbated episodes of psychosis. Psychotic relapses have also been precipitated by medication changes and psychological stressors. The prominent features of Mr Devaney’s psychosis, in Dr Eagle’s opinion, are persecutory and religious delusions, auditory hallucinations and referential ideation associated with thought and behavioural disorganisation and mood disturbances. The expert was of the view that Mr Devaney is improved significantly when receiving treatment compared to his presentation when untreated.

46. [57]

    Dr Eagle expressed the view, like Dr Youssef, that Mr Devaney has severe Substance Use Disorder involving illicit stimulants which appear to be in remission while he is under supervision. Dr Eagle was of the view that Mr Devaney had displayed adult antisocial personality traits. She acknowledged the diagnosis of Narcissistic Personality Disorder. She thought that he also displayed paranoid personality traits, and it was difficult to interpret the extent to which these may overlap with his psychotic illness.

47. [58]

    In her oral evidence, Dr Eagle adhered strongly to her opinion that the primary relevant diagnosis was that of Schizophrenia rather than Antisocial Personality Disorder. In cross-examination, she accepted that an Antisocial Personality Disorder tends to attenuate with advancing years. However, she describes Schizophrenia as an enduring illness that needs treatment in almost all cases (T15.35). Dr Eagle said that Schizophrenia had a different trajectory from a personality disorder. A person’s function actually declines and affects a patient’s judgment and behaviour. The prognosis is improved by good access to support, mental health treatment and care. Dr Eagle assessed the risk posed by Mr Devaney by employing the HCR-20 professional judgment tool. She considered that he had a High loading of historic risk factors associated with violence. She assessed a Moderate loading of clinical risk factors associated with problems with Mr Devaney's insight into his mental illness and the need for treatment, as well as his tendency to justify the index offending based on external and other “victim” related factors.

48. [59]

    Dr Eagle regarded compliance with treatment as central to risk management. With Mr Devaney’s only family support being located in Queensland, his compliance with treatment is predicated on the continuation of the CTO. The risk of violence would be higher if Mr Devaney disengaged from the current mental health services and treatment. This would be particularly aggravated if he relapsed into substance abuse. The most salient risk would be the re-emergence of active psychosis which would significantly increase the risk of violence.

49. [60]

    Dr Eagle is of the view that Mr Devaney’s risk of violent re-offending cannot be managed without any form of order being imposed. He falls into a category of patient who will need mandatory treatment orders over the longer term to manage his risk of relapse and associated violence. Given his attitude to his disease and the need for treatment, Dr Eagle regards it as unlikely that the availability of the CMHT and a CTO would adequately manage Mr Devaney’s risk without additional monitoring and supervision.

50. [61]

    As I said in my judgment after the preliminary hearing, the most recent dedicated risk report was that of Mr Sam Ardasinski, a senior psychologist, employed by the Corrective Services NSW High Risk Offenders Team, dated 18 November 2024. My previous review of the assessment was in the light of the attenuated standard of proof applicable to a preliminary hearing. However, having reviewed all of the material for the purpose of this final hearing, I am of the view that the impressions I formed at that time should be accepted as accurate on the civil standard of proof applicable to the acceptance of evidence generally in final hearings of these matters, that being, the balance of probabilities. The special statutory standard of “a high degree of probability” relates solely to the determination of whether Mr Devaney’s risk is unacceptable.

51. [62]

    Before re-stating my evaluation of Mr Ardasinski’s report, I wish to make some other findings.

52. [63]

    First, it remains a matter of real concern that notwithstanding the very real effort of Mr Devaney over the last few years to (mostly) comply with his treatment, lead a pro-social life and comply with his ESO, it became obvious in cross-examination that he remains in denial of the diagnosis of Schizophrenia and does not accept the need for treatment. In a long passage of cross-examination (T26.41ff) by Mr P Aitken of counsel, who appeared for the State, Mr Devaney quite volubly made it clear that in his view, he may have had a drug induced psychosis at the time of the index offending but he doesn’t believe he suffers from Schizophrenia (T27.36). While I have considered the whole of the long passage of cross-examination to which I have referred, his attitude to this question is best summed up in two short passages. The first, at (T27.13):

53. [64]

    This is reflected in the circumstance that in the early part of 2024, as I discussed in the passage from my preliminary judgment (which I fully set out in this judgment at [68] below), Mr Devaney was able to persuade the CMHT to trial him off his medication. It needs to be borne in mind that at that time, as he has been for some years, he was entirely abstinent from illicit substances. It became clear over a short period of time that his psychotic symptoms returned into an active, not necessarily florid, state. That this is the case is also, I feel, corroborated by his parents’ statement:

54. [65]

    I interpolate that the re-emergence of psychotic symptoms while in custody and also in the community when his medication is reduced or eliminated tends, in my opinion, to confirm that the preferable diagnosis, on the balance of probabilities, is Schizophrenia, rather than Paranoid Personality Disorder. Moreover, I accept the evidence of Dr Eagle that diagnosis is a matter for a legally qualified medical practitioner practising as a specialist psychiatrist, rather than even a very highly qualified psychologist.

55. [66]

    It is perhaps just as well to deal with two other aspects of the cross-examination which were of some significance to the State’s case. The first aspect is cross-examination about ongoing evidence of a continuing connection with OMCG entities. This evidence relates to two photographs within Mr Devaney’s residence of friends connected with the Nomads OMCG. He explained this in terms of his longstanding friendship and an acknowledgement that those connections represented a phase in his life through which he has now passed. While I have some concerns about those matters, they are not as significant as the denial of the diagnosis and his opposition to treatment.

56. [67]

    The second matter relates to his ongoing fixation with the victim of the index offending. There is no doubt that while Mr Devaney was in custody, as I have indicated above, he at times, and probably as a manifestation of his disease, expressed ideas seeming to blame the victim for his offending. At other times, he acknowledged his own responsibility, as he should have. In cross-examination, he was taken to a number of entries in the case management notes whereby he expressed a strong desire to meet with his victim in the interests of “restorative justice”. He also kept two photographs of her on his phone. These matters are of some legitimate concern. However, I acknowledge that they related to entries in 2021 and 2022 and that there do not appear to be any current entries exhibiting the same strong desire in making some form of reconnection. On the contrary, Mr Devaney now denies having any interest in a meeting. I accept, however, given the longitudinal history, this matter is one of potential concern, having regard especially to Dr Eagle’s opinion. While Mr Devaney is compliant with treatment, the risk to the victim is probably slight. However, future compliance with treatment is an ongoing significant issue.

57. [68]

    With these factual matters firmly in mind, I set out my views about Mr Ardasinski’s risk assessment which I adopt as findings for the purpose of my final judgment. In my preliminary judgment, I said the following (at [24] – [29]):

58. [69]

    Poor insight into his condition and opposition to treatment remain very active concerns. His presentation in the witness box certainly tended to be domineering. I did not regard counsel’s mien as provocative or overbearing.

59. [70]

    The risk report provided by the team leader with the Metropolitan Extended Supervision Order team of Corrective Services NSW is dated 18 November 2024. There is no doubt that, as he has been under the ESO made against him by Dhanji J, Mr Devaney can be managed in the community if another ESO is made. Moreover, he is highly likely to comply with an ESO as he has done in the past, notwithstanding the level of voluble frustration exhibited by his body language and expressed in his oral testimony. I should observe that Mr Devaney has in fact progressed very well under the previous ESO even without electronic monitoring as a condition. Although from a risk management point of view, the ESO team applied for a condition permitting them to reinstate electronic monitoring at their discretion if Mr Devaney were to re-exhibit the type of fixation in contacting the victim of the index offending that he previously manifested in 2021 and 2022.

Determination of whether the risk is unacceptable

1. [71]

   As I recorded in my preliminary judgment (at [20]), Dhanji J determined that Mr Devaney posed an unacceptable risk of committing another serious offence if not kept under supervision essentially, with respect, because even a relatively low risk of the defendant acting in the manner similar to the index offence would be unacceptable. However, I am required to determine independently on the basis of the evidence led before me at the final hearing whether the State has persuaded me to the requisite high degree of probability that the risk of Mr Devaney committing another serious violence offence, if not kept under an ESO, is unacceptable.

2. [72]

   Having posed the question, my answer is I am satisfied to the requisite high degree of probability that Mr Devaney does pose an unacceptable risk of committing another serious violence offence if not kept under supervision under a further ESO.

3. [73]

   The following factors are central to my attaining the requisite state of actual persuasion to a high degree of probability. First, the applicant’s criminal record is characterised by very significant serious violent offending including not only the index offending, but the armed robberies of which he was convicted and the other forms of interpersonal violence, intimidation and harassment.

4. [74]

   Secondly, the very high degree of violence involved in the index offending involving planning, subterfuge by way of disguise and the intention to kill while armed with a lethal weapon.

5. [75]

   Thirdly, my finding that the preferable and probable diagnosis is Schizophrenia rather than Paranoid Personality Disorder, the latter of which may be somewhat attenuated due to the effects of advancing age.

6. [76]

   Fourthly, I am of the view that the undiagnosed Schizophrenia was probably a factor in the whole of his offending going back to the 1995 armed robberies even if, with the benefit of hindsight, psychotic symptoms were not manifest until Mr Devaney’s trip to Egypt in 2006.

7. [77]

   Fifthly, Mr Devaney’s current denial of his illness and his opposition to the continued regime of antipsychotic medication and CMHT referral are, in my opinion, very significant risk factors which remain active.

8. [78]

   Sixthly, despite the differences between them in terms of the correct diagnosis, both Dr Youssef and Dr Eagle (the latter being whose opinion I prefer) remain quite strongly of the view that the conditions of the CTO, including intramuscular injections of antipsychotic medication and CMHT management, are, of themselves, insufficient to manage the risk.

9. [79]

   Finally, although there is no recent evidence of fixation on the victim of the index offending, it seems to me to be a background factor which could be reactivated should Mr Devaney backslide in his treatment and relapse into active psychotic symptoms. It should be borne in mind that his aggression in the past found expression in violence or intimidation not only to the victim of the index offending, but also to others.

Should an ESO be made

1. [80]

   Having decided that the risk is unacceptable in the s 5B(d) sense, I can conceive of no persuasive reason why I should exercise my discretion to dismiss the application. In my judgment, my findings justify one result and one result only, and that is the making of an ESO under s 9(1)(a).

2. [81]

   The only matter which may be capable of weighing against that outcome or in favour of dismissing the application is the consideration that Mr Devaney is likely to remain under the management of the MHRT and, in all probability, subject to a CTO. However, I am not of the view that a CTO is currently sufficient to manage the risk when one has regard to the objects of the Act. That is to say, to provide for the supervision of high-risk violent offenders so as to ensure the safety and protection of the community. Whereas the objects of the Mental Health Act 2007 (NSW) (MHA) are quite different. The emphasis is upon the provision of care and treatment. While this extends to the facilitation of the provision of hospital care on a voluntary basis, compulsion is available only “in a limited number of situations”: s 3 MHA. In contradistinction to the objects of the Act, in the provision of appropriate care and treatment, the emphasis of the MHA is upon the protection of the civil rights of the patient and the involvement of the patient in decisions about their appropriate care and treatment. Given Mr Devaney’s denial and opposition, this could facilitate his risk rather than manage it.

3. [82]

   There is an obvious capacity for a patient to simply not comply with an order or to drop off the “radar”, as it were. As Dr Youssef pointed out (Exhibit CB; Tab 13; p 45 [141.6.2]), there is no guarantee that a CTO will remain in place “especially if [Mr Devaney] continues to comply with his medication and there is no clear need for one”. She also points out that a CTO is not designed to address the forensic risks “as an ESO would” ([141.6.2]). Dr Youssef expanded upon these considerations (at [141.8], pp. 47ff) and concluded that, in her opinion, “the continued involvement of the ESO remains essential, even with a CTO in place, irrespective of its duration or the role of CMHT”.

4. [83]

   I am not of the view that the existence of the CTO manages the risk sufficiently to justify dismissing the application; a CTO is not designed to achieve that object.

5. [84]

   Given this decision, I am of the view that the appropriate duration of an ESO is 18 months as sought by the State.

Conditions

1. [85]

   There was little debate about the conditions to which Mr Devaney should be subject if I were otherwise persuaded to make an ESO. The real dispute was about whether I should impose a condition which permitted the reimposition of electronic monitoring in certain limited circumstances. Before turning to that issue, so far as the current conditions appurtenant to the subsisting ISO are concerned, the State withdraws its reliance on condition 31 dealing with coded or encrypted messaging applications. This topic is already covered by the preceding condition 29 in more and appropriate detail. I agree that condition 31 may be deleted.

2. [86]

   Condition 48 deals with the provision and sharing of information by treatment and related service providers. The State agrees it should be qualified by inserting some words of limitation after the expression “information you have told them…” in the concluding clause. What is now proposed is intended to read as follows:

3. [87]

   The amendment is not objected to. As I say it provides words of limitation, rather than extending the burden of the condition and I propose to allow it. However, I have relocated those words of limitation to follow the expression “sharing information” in the second line of what appears above to improve the syntax. To my mind, this amendment renders condition 48A otiose, or at best redundant, and I have omitted it to eliminate any ambiguity that may otherwise arise.

4. [88]

   The State wishes to reimpose a modified form of condition 5, which I disallowed in my preliminary judgment ([44]). It relates, as I have said, to electronic monitoring. What is proposed has been referred to as a “sunrise clause” and is in the following terms:

5. [89]

   A risk to the victim of the index offending is a factor informing my conclusion in relation to unacceptable risk. To that extent, what is proposed is covered by s 11. On the other hand, I have described that aspect of the risk as forming part of the background only. Mr Devaney’s interest in contacting and/or visiting the victim of the index offending seems to have receded since 2022. There is no reasonably contemporaneous evidence suggesting it is still a factor. The reality is that Dhanji J declined to impose electronic monitoring and Mr Devaney has not sought independently to contact or visit the victim of the index offending while under supervision. His statements about that topic which he was cross-examined about were limited to asking authorities to intercede with the victim to arrange a meeting for the purpose of “restorative justice”. He seems to have accepted now that that is not appropriate.

6. [90]

   Moreover, there is no suggestion of any breach of the conditions of the previous ESO, notwithstanding Mr Devaney’s obvious recalcitrance in relation to the acceptance of my preferred diagnosis and his opposition to treatment. I am of the view that the previous regime worked well and, despite my concern about what I have referred to as Mr Devaney’s recalcitrance, he has made very significant progress in rehabilitation toward a pro-social life. While he has persuaded treatment providers to reduce or eliminate the antipsychotic medication from time to time, he seems to have cooperated with its re-introduction when directed to do so by his DSO. I am reasonably satisfied that the former regime, which, as I have said, seemed to have worked well, is the appropriate regime to continue with. I do not propose to impose the “sunrise clause” in relation to electronic monitoring.

Orders

1. [91]

   My orders are:

   1. (1)

      Upon the expiration of the current Interim Supervision Order on 26 April 2025, and under s 9(1)(a) Crimes (High Risk Offenders) Act 2006, the defendant is subject to an Extended Supervision Order for a period of 18 months;

   2. (2)

      Under s 11 of the said Act, the defendant is to comply with the conditions set out in the schedule to these reasons for the period of the extended supervision order;

   3. (3)

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