State of New South Wales v Hollaway

1. [1]

   By way of summons filed on 12 September 2024, the plaintiff seeks an Extended Supervision Order (“ESO”) under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for the continuing supervision of the defendant for a period of two years from the date of the order. Various conditions are sought as part of that order.

2. [2]

   Prior to any final order being made, the plaintiff seeks interim orders as follows:

   1. (1)

      An order pursuant to s 7(4) of the Act:

   2. (2)

      An order:

3. [3]

   By way of ancillary relief, the plaintiff seeks 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 of access.

4. [4]

   The defendant opposes the granting of an ISO on the grounds that the defendant does not pose an unacceptable risk of committing a serious offence if not kept under supervision under an ESO. If an ISO is granted, the defendant opposes some of the proposed conditions.

5. [5]

   In support of the application the plaintiff has filed an affidavit of Diana Lambert affirmed on 12 September 2024. The exhibit “DL-1” to that affidavit comprises the Application Bundle. The plaintiff also relies on the Plaintiff’s Statement of Case filed on 12 September 2024. The plaintiff also relies upon the affidavit of Jessie Slattery-McDonald affirmed on 13 November 2024.

6. [6]

   The defendant is presently the subject of a three-year ESO (“the current ESO”) imposed by R A Hulme J on 7 November 2017. Since then, the defendant has returned to custody on eight occasions. The defendant’s most recent period in custody concluded on 2 May 2024. Thereafter she was supervised in the community save for a recent period when she became a forensic patient.

7. [7]

   On 12 October 2024 the defendant was admitted to Westmead Hospital and later transferred to Cumberland Hospital as an involuntary patient. The defendant appeared before the Mental Health Review Tribunal (“the Tribunal”) on 24 October 2024 for a mental health inquiry. The Tribunal determined that the defendant was a mentally ill person and must be detained in or admitted to Cumberland Hospital for further observation or treatment, or both, as an involuntary patient. The defendant was discharged from Cumberland Hospital on 8 November 2024. The defendant is currently in the community under supervision. The current ESO is due to expire on 14 December 2024.

Personal Background

1. [8]

   The defendant is a 35 year old woman who grew up in circumstances of significant deprivation and disadvantage. She was emotionally and physically abused by her stepfather, as well as sexually abused by her stepfather and several other men. At the age of 11 the defendant was sent to live with her biological father after reporting the sexual abuse to her mother. That arrangement was short lived. The defendant’s biological father passed away when she was 15 years old.

2. [9]

   At the age of 13, the defendant was made a ward of the State, staying with her great-grandmother and various foster families until she was 14 years and 9 months. She returned to her mother’s home for a few months before seeking supported accommodation with Anglican Care.

3. [10]

   The defendant’s schooling was disrupted due to family relocation, troubled peer relations and learning difficulties. At the age of 15, the defendant became pregnant, however, she suffered a stillbirth at 30 weeks gestation. Following the loss of her child, she became suicidal and was admitted to Bloomfield Psychiatric Hospital in 2004 with an acute stress reaction. She presented to the Dubbo Base Hospital in 2005 with thoughts of self-harm and depression.

4. [11]

   The defendant developed a cannabis habit around the age of 12 and developed an eating disorder by the age of 13. Her illicit drug use increased following her miscarriage. Around the age of 16, she used heroin regularly before using amphetamines at the age of 17. She then began using OxyContin and buprenorphine which led to her using prescription opiates. She also experimented with crystal methamphetamine, synthetic cannabis, and ecstasy. Her use of alcohol became problematic after meeting her ex-partner in rehabilitation, at the age of 18.

5. [12]

   The defendant likely meets the diagnostic criteria for a psychotic disorder and has been diagnosed as suffering from a substance use disorder and post-traumatic stress disorder (“PTSD”). There is some question as to whether she also suffers from a borderline personality disorder.

6. [13]

   As can be discerned from this summary, the defendant has experienced a highly dysfunctional childhood in which she experienced multiple traumas. She developed several mental health conditions and a substance use disorder.

7. [14]

   The material demonstrates that the defendant’s most acute risk situation would be in the context of relationship conflict, when she perceives a threat, in the context of mental health instability and substance abuse. Herein lies the dilemma, perceptively captured in the remarks of Craigie SC DCJ that “[i]n the ordinary course, the urge to have at least the close society if not the intimate relationship of another human being is one of the most human of impulses. In this appellant, given her history it can be the setting of risk.” [1]

The Index Offence

1. [15]

   On 22 October 2012 the defendant pleaded guilty to a charge of manslaughter. The plea of guilty was based on substantial impairment by abnormality of mind pursuant to s 23A of the Crimes Act 1900 (NSW). The Crown accepted that plea of guilty in full satisfaction of the indictment of murder.

2. [16]

   The defendant was sentenced by Price J (as his Honour then was) to a term of imprisonment with a non-parole period of three years and a balance of term of two years and four months. The non-parole period expired on 9 June 2014, with the additional term expiring on 9 October 2016. In sentencing the defendant, His Honour observed:

3. [17]

   His Honour accepted that the defendant was remorseful and concluded that her dysfunctional background was causative of her “…descent into alcohol and drug abuse at an early age.” At [34] his Honour said:

The Legislative Framework

1. [18]

   The Act is designed to address the “…almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release”: State of New South Wales v Donovan [2015] NSWSC 1254 at [3].

2. [19]

   The objects of the Act are set out in s 3:

3. [20]

   Section 9(2) of the Act provides that in determining whether or not to make an ESO “the safety of the community must be the paramount consideration”. It follows that ESOs are, in their nature, protective and not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; State of New South Wales v Tina Lee (a pseudonym) (Preliminary) [2023] NSWSC 693 at [13].

4. [21]

   Section 7(3) of the Act requires a preliminary hearing into the application be conducted within 28 days of filing the application. Section 7(4) provides that if following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing the relevant experts to conduct examinations and furnish reports to the Supreme Court (and direct the defendant to attend those examinations). If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of the order, I must dismiss the application under s 7(5).

5. [22]

   Section 10A of the Act provides:

6. [23]

   Both provisions provide the same threshold, that is, “that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

7. [24]

   Section 5B of the Act provides:

8. [25]

   “Serious offence” is defined in s 4 of the Act as “a serious violence offence”. The definition of “serious violence offence” is contained in s 5A, which provides:

9. [26]

   It follows that in determining whether an ISO should be made, I must determine whether the matters alleged in the supporting documentation would, if proved, justify satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence (as defined) if not kept under supervision under the order. I must be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious violence offence, as opposed to a violence offence that is less than “serious”, as contemplated by the Act.

Assessment of risk

1. [27]

   In determining whether the matters in the supporting documentation would, if proved justify the making of an ESO, I am required to have regard to the factors set out in s 9(3) of the Act, in addition to the safety of the community which, as I have already noted, is the paramount consideration.

2. [28]

   This being a preliminary hearing, no such persons have yet been appointed.

3. [29]

   There are two Risk Assessment Reports (“RAR”) that have been prepared, one in 2024 and another in 2016.

4. [30]

   Although the defendant declined to be interviewed for the 2024 RAR, a report was prepared by senior psychologist Samuel Ardasinski which refers to the 2016 RAR and the defendant’s progress on the ESO. At [30] he observed that:

5. [31]

   In relation to the defendant’s current and previous risk assessments, Mr Ardasinski opined at [40]:

6. [32]

   Mr Ardasinski maintained the view that the defendant’s most “acute risk situation would be in the context of relationship conflict, when she perceives a threat, amidst a maelstrom of mental health instability and substance use.” He concluded at [45]:

7. [33]

   Mr Ardasinski identified the competing considerations which have exercised my mind during the proceedings as follows. If no order is imposed, the “minor” breaches of her ESO, such as sitting on the beach with a new girlfriend and having a beer or two, would not result in her arrest and imprisonment once her ESO expires.

8. [34]

   On the other hand, there would be no monitoring of Ms Hollaway’s behaviour, such that a descent into mental ill-health may go unnoticed by those around her until she decompensates entirely. Additionally, a stressful period in the defendant’s life may result in a return to heavy substance use, disinhibiting her within the context of any new relationship, or within the context of her dysfunctional family connections.

9. [35]

   There will need to be a middle ground if any new ESO is made, in order that Ms Hollaway is able to build a semblance of “normality” in forming any new relationships while still being able to have protective mechanisms tilt into them. For instance, there are well advertised governmental standards for "safe levels of alcohol to consume which could be built into conditions which could continue to prohibit alcohol misuse.”

10. [36]

    Mr Ardasinski considered whether the powers of orders made pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), may be protective for any new intimate partner. He concluded that powers may be sufficient to protect individuals who are aware of the risks posed by the defendant within her intimate relationships, but they may not be made aware of those risks until it is too late.

11. [37]

    The 2016 RAR described the defendant’s primary risk scenarios consistent with that identified in the 2024 RAR:

12. [38]

    In the context of discussing the defendant’s institutional conduct charges (which primarily concern drug use) Mr Ardasinski observed that at [13]:

13. [39]

    Court appointed expert reports were provided by Patrick Sheehan dated 9 September 2017 and Dr Andrew Ellis dated 10 September 2017. Mr Sheehan outlined the defendant’s personal background describing it as one of “repeated abuse, trauma and complex/ambivalent attachments to carers.” He opined that “her expressions of violence have been mired in the enduring fallout of her traumatic past, where Ms Hollaway unwittingly recreates or exposes herself to high risk situations with other poorly functioning people and escalates aggression, perhaps instinctively seeking to re-assert mastery over past abuses. Her ability to appraise her behaviour is impaired in these situations and the dynamics of victim and perpetrator become confused.” He further observed that “Ms Hollaway has only committed one offence meeting the threshold of ‘serious violence offence’ and this offence was committed during a period of psychosis, now in remission and managed with antipsychotic medication.”

14. [40]

    Mr Sheehan observed that the defendant, in 2017, had few protective factors and considered that her prognosis remained “guarded.” Mr Sheehan opined that without intensive supervision, the defendant would relapse quickly to a lifestyle associated with the previous acts of violence. Although he did not express an opinion about whether the defendant’s level of risk was “unacceptable” as comprehended by the Act, Mr Sheehan opined that the defendant’s chances of achieving positive adjustment in the community are enhanced were she to be subject to a further limited period of supervision, to assist her in creating a stable prosocial lifestyle.

15. [41]

    Dr Ellis opined that the defendant met the diagnostic criteria for a psychotic disorder, substance use disorder, PTSD and borderline personality disorder. He recommended more detailed testing of the defendant’s cognitive and educational function.

16. [42]

    Dr Ellis noted some of the limitations with current risk assessment techniques in behavioural science predicting whether a particular individual will reoffend with a serious violence offence. Actuarial measures are able to allocate individuals with particular characteristics to risk groups, and those risk groups have been identified as possessing greater or lesser numbers of persons within the group as reoffending. Dr Ellis pointed out that:

17. [43]

    Dr Ellis then went on to identify the relevant facts to an estimation of risk in the defendant’s case, concluding:

18. [44]

    The defendant has been assessed using the Violence Risk Scale (“VRS”). In 2016, her score placed her at the lower end of the high risk category. In 2024, her score placed her in the moderate category.

19. [45]

    A Risk Management Report (“RMR”) dated 14 June 2024 has been prepared by Susan Page. Ms Page observes that overall, the defendant has spent more time in custody since the commencement of her order than in the community. That accords with the observations made below at [56] in respect of the terms of imprisonment imposed upon the defendant for breaches of the ESO.

20. [46]

    Ms Page notes that in the early years of her supervision, the defendant’s response was marred by superficial engagement in alcohol and other drug intervention. However, upon her release to the residential rehabilitation program at Guthrie House on 12 September 2022, the defendant “demonstrated a significant improvement in her attitude towards her ESO supervision” which in turn resulted in a lengthy period of stability and compliance. She successfully completed the residential rehabilitation program in December 2022 and thereafter engaged in an outreach program. The defendant had a period of over nine months of abstinence.

21. [47]

    The defendant also engaged with a Corrective Services New South Wales (“CSNSW”) High Risk Offender (“HRO”) psychologist and participated in individual risk management intervention sessions. It is noted that the defendant’s HRO psychologist was of the view that the defendant displayed a “shift in her attitude”, demonstrating a commitment to abstinence from illicit drug use. For a period, the defendant abstained from illicit substances, maintained stable accommodation, obtained full-time employment, sought meaningful support to manage her family dynamics and engaged with a mentor from the Women’s Justice Network.

22. [48]

    In August 2023, there was a noted regression in the defendant’s behaviour which coincided with the deterioration of her relationship with her mentor. The change in behaviour also coincided with the defendant’s ongoing health issues that resulted in her presenting to the Emergency Department on multiple occasions. There was a noticeable decline in the defendant’s mental health. She was initially resistant to seeking assistance for her mental health conditions but subsequently agreed to re-engage with a CSNSW HRO psychologist.

23. [49]

    Relevant to this topic, are the Offender Integrated Management System (“OIMS”) case notes for the period of 10 January 2020 to 10 August 2024. The defendant is reported to have expressed her desire to “do trauma counselling”, notwithstanding her apprehension “knowing it will be difficult”. Although the defendant identified several programs she had already completed, she was able to highlight a number of factors that have contributed to her risk including unhealthy relationships, excessive alcohol use and her underlying trauma. It is reported that the defendant had a “good level of insight into her behaviour”.

24. [50]

    The RMR contains a risk management plan and includes recommended conditions in the event that an ISO is made.

25. [51]

    The defendant has engaged with the Violent Offender Treatment Program (“VOTP”) over the course of the ESO. She has also engaged in drug and alcohol counselling from December 2022 onwards, although her engagement has not been entirely consistent.

26. [52]

    In December 2022 the defendant completed the 12-week Guthrie House residential rehabilitation program. In addition to weekly group meetings, the defendant attended weekly sessions with a Mental Health Worker and an external Alcohol and Other Drugs (“AOD”) counsellor. She was proactive in gaining employment, which she identified as a crucial goal when initially developing her case plan. The defendant maintained her tenancy while at Guthrie House and is described as having “demonstrated responsible tenancy maintenance skills.”

27. [53]

    In April 2019 the defendant completed the EQUIPS Addiction Program in custody. In December 2019 she completed the Real Understanding of Self-Help (“RUSH”), EQUIPS Foundation and EQUIPS Addiction Program (for the second time) in custody. In August to November 2017, she initially engaged well at the Miruma Residential Facility, but thereafter ceased engagement. Mr Ardasinski concludes, in the 2024 RAR, that the defendant is “partially treated” as she has participated in a series of programs, addressing her anger management and substance use. However, she is yet to receive intensive treatment in respect of her significant trauma history, which is necessary to “fully” treat her substance use and violence.

28. [54]

    In the 2024 RAR, Mr Ardasinski addresses the risk management strategies if the defendant was subject to another ESO. They include individual risk management intervention provided by a qualified CSNSW psychologist and members of the VOTP team. The defendant’s movements would be monitored as would her online presence, to minimise the risk of her “returning to toxic relationships”.

29. [55]

    In the event that no order is imposed, the defendant would be at unconditional liberty and there would be no monitoring of her behaviour, such that a descent into mental ill-health may go unnoticed.

30. [56]

    It is necessary to set out in some detail the circumstances relating to several breaches of the current ESO. The summary is taken from the Joint Statement of Agreed Facts for the Preliminary Hearing:

31. [57]

    In the main, the defendant has breached the current ESO by consuming prohibited drugs, drinking alcohol, and being in an unapproved location. While any breach of an ESO is taken very seriously by the courts, the circumstances constituting the breaches disclose the ongoing struggle the defendant has had with prohibited drugs and alcohol resulting from significant trauma. The response to the breaches has been to punish her by imposing relatively long periods of imprisonment.

32. [58]

    An analysis of the defendant’s criminal record reveals that the first breach of the ESO was in January 2018. She was sentenced for that breach and for offences of stalk and intimidate and use carriage service to menace, harass or offend, on 27 April 2018. From that date until present, the defendant has been sentenced for the offence of failing to comply with her ESO on the occasions set out above at [56].

33. [59]

    A calculation of the period that the defendant has spent in custody in the last six years, referable, either wholly or in part, to terms of imprisonment imposed for breaching the ESO, reveals that the total period is approximately four years. That the defendant has spent a lengthy period in custody for minor breaches of the ESO, primarily related to what is fundamentally a mental health and substance abuse issue, is troubling.

34. [60]

    As rightly observed in the written submissions filed on behalf of the plaintiff, the defendant’s supervision has been interrupted by numerous returns to custody following breaches of the ESO. This pattern of incarceration for what are relatively minor breaches, that do not involve the commission of violent offences, brings into sharp focus the way in which ESO conditions may thwart the progress of an individual, particularly one who has long-standing substance abuse issues and mental health conditions arising from significant trauma.

35. [61]

    However, the interests of the defendant’s liberty and privacy is not relevant to the determination of unacceptable risk. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”), Gleeson JA noted at [148]:

36. [62]

    Prior to the index offending, the defendant was convicted for offences involving violence. Two of these offences involve the defendant threatening the victim with a knife. One involved the defendant’s stepfather, who she later disclosed had been the perpetrator of physical and sexual abuse.

37. [63]

    In 2015 the defendant was found guilty by a jury of an offence of attempt to choke a person to render them incapable of resistance. The victim was her then partner, Kaye Skene.

38. [64]

    In sentencing the defendant, McClintock SC DCJ found that the defendant and the victim had resumed cohabitation despite the existence of an Apprehended Violence Order (“AVO”) and that this was “entirely voluntarily.” The pair were involved in a fight that arose out of some dispute earlier in the day and at a time when they were both “significantly affected by alcohol.” The sentencing judge was satisfied that the relationship between the defendant and the victim was “a torrid and dysfunctional relationship marked by episodes of violence”.

39. [65]

    The defendant was sentenced to 21 months imprisonment, with a non-parole period of 12 months.

40. [66]

    The defendant was remanded on 5 December 2023 on charges of intimidating her mother, damaging her property, and assaulting her. She was simultaneously charged with breaching her ESO by being in the company of other persons who were drinking (her mother) and possessing or using alcohol herself. The defendant remained bail refused until the matters were heard and determined by the Local Court at Lightning Ridge on 1 and 2 May 2024.

41. [67]

    There was no prima facie evidence of an assault, and that charge was dismissed at the close of the prosecution case. The defendant was found not guilty of damaging property at the conclusion of the hearing. She was found guilty of intimidating her mother based on “screaming and yelling” only. The Magistrate was not satisfied beyond reasonable doubt that the defendant was armed with a knife or knives, nor that she threatened the victim with such a weapon.

42. [68]

    In determining the matter, the Magistrate made the following findings:

43. [69]

    The reference to the defendant “feeling upset” is a reference to the defendant’s account that she had been in an argument with her then partner who was also at the house, and unhappy about the fact that her mother had thrown hot water on her. The defendant was sentenced to “time served”.

Determination

1. [70]

   There is no issue, based on the material alleged in the supporting documentation, that the defendant satisfies s 5B(a), namely that she is an offender as defined in s 4A and has served a sentence of imprisonment by way of actual custody for a “serious offence” as defined in ss 4 and 5A.

2. [71]

   The question for resolution is whether I am satisfied that the matters alleged in the supporting documentation would (if proved) justify the courts satisfaction, to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: ss 5B(d) and 10A.

3. [72]

   The Court of Appeal considered the meaning of the phrase “a high degree of probability” in Cornwall v The Attorney General for New South Wales [2007] NSWCA 374 at [21]:

4. [73]

   The meaning of “unacceptable risk” for a high-risk offender, was considered by Beazley P (with whom Gleeson JA agreed) in Lynn. The principles were summarised in State of NSW v Tozer [2017] NSWSC 109 at [21] as follows:

5. [74]

   I have had regard to the various matters set out above. I am satisfied that the matters set out in the supporting documentation would, if proved, justify the Court’s satisfaction to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

6. [75]

   I have made that determination for the following reasons. Firstly, although the current risk assessment as to the commission of serious physical harm is moderate, the defendant remains a high risk of perpetrating future violence.

7. [76]

   Secondly, the main risk scenario remains the likelihood of the defendant entering into a new relationship which may involve mutual substance abuse and without the spectre of supervision and the support of professionals, domestic conflict could escalate to serious violence.

8. [77]

   Thirdly, on 12 October 2024 the defendant was admitted to Westmead Hospital, and then transferred to Cumberland Hospital, as an involuntary patient. She reported daily use of cannabis and a deterioration of her mental state over two weeks. On 24 October 2024, the Tribunal determined that the defendant was a mentally ill person. She was not discharged until 8 November 2024. The material demonstrates continued use of an illicit substance and mental health deterioration. The circumstances give rise to the risk scenario identified in the material and the significant risk of a commission of a serious violence offence.

9. [78]

   Fourthly, at this preliminary stage, the Court has insufficient material to conclude that the defendant can be appropriately supervised and monitored by way other than through an ISO. The prospect of the defendant attempting to manage without some mandatory form of supervision raises a real concern about the prospect of serious violence offending. This is particularly so in light of the defendant’s recent admission, as an involuntary patient.

10. [79]

    Section 11(1) of the Act provides that an ISO “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”. Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services. The conditions should be framed bearing in mind the important principles that were set out by Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44]:

11. [80]

    The present case demonstrates the importance of striking a balance between conditions designed to reflect the primary objects in s 3 of the Act as well as having regard to the interests of the defendant’s liberty and privacy, on the other. The conditions are protective not punitive.

12. [81]

    While, the primary object of the Act is to ensure the safety and protection of the community, another object is to encourage an offender to undertake rehabilitation. The defendant’s history of non-compliance which has resulted in punishment by way of lengthy terms of imprisonment, has resulted in highly disrupted supervision and has arguably thwarted her rehabilitation and progress.

13. [82]

    In determining the appropriate conditions, I have had regard to the progress that the defendant has made on occasion. I am not of the view that conditions which are significantly onerous will fulfil the objects set out in s 3 of the Act. Furthermore, a more nuanced and less stringent set of conditions are required to achieve the balance referred to above and to promote, rather than interrupt, the defendant’s progress.

14. [83]

    The defendant has agreed, if an ISO is made, to several conditions and has provided proposed amendments to others. In the main, I will impose the conditions as agreed to, or amended by the defendant. I turn to the particular conditions proposed in the most recently updated schedule, received on 18 November 2024.

15. [84]

    Condition 5, which proposes electronic monitoring, is not appropriate and will not be imposed. Electronic monitoring is highly intrusive and potentially risks discouraging the defendant in her progress.

16. [85]

    Conditions 6 through to 8 relate to the provision of a schedule of movements. These are similarly onerous and unnecessary. These conditions are, in my view, a significant burden, particularly on someone in the position of the defendant with her substance abuse and mental health issues.

17. [86]

    Condition 9 is in my view appropriate.

18. [87]

    Conditions 11 and 12 are not appropriate in my view. They are unnecessarily intrusive on the defendant’s privacy and her capacity to take control of her life and have some agency in the interactions she has with others.

19. [88]

    Condition 13, as amended by the defendant, is appropriate. It facilitates monitoring of who can stay at the defendant’s premises overnight but excludes from that group, immediate family members. Once again, the amendment is appropriate to allow the defendant some agency in her interactions with her immediate family.

20. [89]

    Condition 15 is not necessary in my view. The defendant’s prior history of serious violence relates to occasions where that violence was perpetrated at the home where she was residing. The documentation does not disclose a heightened risk scenario that relates to the defendant attending a particular place, outside of the place where she may reside with an intimate partner.

21. [90]

    I am not of the view that it is necessary or appropriate to monitor the defendant’s financial activities. Although the defendant does have a substance abuse issue, it is not at all clear as to how monitoring her financial records will alert a Departmental Supervising Officer (“DSO”) to the defendant’s abuse of illicit drugs. This is not a case where there is evidence of discernible sums of money being withdrawn or debited from the defendant’s bank account to fund her drug addiction.

22. [91]

    Condition 17, in its original form, imposes an unnecessary restriction on the defendant’s consumption of alcohol. Although the defendant has a long-standing substance abuse issue which is connected to her risk of committing a serious violence offence, a complete prohibition on the consumption of alcohol is an unrealistic expectation.

23. [92]

    As noted above, Mr Ardasinski has recommended a middle ground, if the defendant is able to build a semblance of “normality” in forming relationships and building protective mechanisms. An example of “a middle ground”, recommended by Mr Ardasinski, is to build into the conditions a safe level of alcohol consumption which would continue to regulate alcohol misuse.

24. [93]

    Condition 17, as amended by the defendant, strikes a better balance to restrict the amount of alcohol consumed on the one hand, and regulating the amount consumed.

25. [94]

    Condition 20 is associated with, although not wholly related to Condition 17. It prohibits the entry into any licensed premises without the prior approval of a DSO. The prohibition does not mitigate risk because the defendant’s substance abuse has primarily taken place within her residence, or that of an intimate partner or family member. Its imposition would, in my view, create an inconsistency in circumstances where condition 17 is imposed but in an amended form.

26. [95]

    Condition 22, in its amended form is appropriate. It provides consistency between the non-association condition and condition 13.

27. [96]

    Having determined that there should be no blanket prohibition to the defendant consuming alcohol, Condition 23 will be imposed insofar as it limits the defendant’s association with any person who she knows is consuming or under the influence of illegal drugs. To do otherwise would create a tension between the conditions which may unfairly operate against the defendant.

28. [97]

    Condition 27 requires the defendant to obey any reasonable direction by a DSO about communications, particularly those using electronic devices, and providing for monitoring of such communications. This is a highly intrusive condition in the present case. The index offence, which is the only offence involving serious violence, was not facilitated by or connected to the use of electronic devices. Furthermore, while there is some history of tension and turbulence in domestic relationships, the use of electronic devices has played a relatively minor role. The intrusive nature of the condition, and the circumstances, militates against its imposition.

29. [98]

    The remaining conditions are agreed. They are in my view appropriate and are not unduly onerous.

Orders

1. [99]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

   2. (2)

      Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order commencing upon the expiration of the defendant's current Extended Supervision Order.

   3. (3)

      Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

   4. (4)

      Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

   5. (5)

      I 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 of access.