State of New South Wales v Wainwright (Preliminary)

1. [1]

   PAYNE J: By amended summons filed in Court on 12 November 2019, the plaintiff, the State of New South Wales seeks, at this stage, two substantive orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) concerning the defendant, Mr Trent Scruse [1] :

Background to the present application

1. [2]

   The defendant is 37 years old. On 16 January 2010, the defendant violently assaulted his then 19 year old girlfriend. The defendant was charged with grievous bodily harm with intent to murder, with an alternate charge of grievous bodily harm with intent to cause grievous bodily harm. On 20 September 2011, the defendant was found unfit to be tried. On 15 March 2012, the Mental Health Review Tribunal determined that the defendant had become fit to be tried. On 20 February 2013, the defendant entered a plea of guilty to the alternate charge of cause grievous bodily harm with intent to cause grievous bodily harm (“the index offence”).

2. [3]

   The defendant was sentenced to a term of imprisonment of 8 years and 1 month with a non-parole period of 5 years. According to JusticeLink, the sentence expires on 30 November 2019. [2] The defendant was released on parole on 30 October 2016. He breached his parole and parole was revoked on 4 April 2017. This did not relate to violent conduct.

3. [4]

   The defendant was again released on parole on 23 February 2018. The defendant has lived without incident in the community for 20 months since February 2018. The defendant has established a good relationship with the Community Corrections officers responsible for his supervision and has not been convicted of any further violent acts since the index offence.

Jurisdiction

1. [5]

   Section 5B of the Act provides that the Supreme Court may make an order for the supervision in the community of a person if:

2. [6]

   In this regard:

   1. (1)

      the term “offender” is defined in s 4A of the Act as a person who is of or above 18 years of age and has at any time been sentenced to full-time imprisonment or intensive correction in the community following conviction for a “serious offence”;

   2. (2)

      a “serious offence” is defined in s 4(1) and includes a “serious violence offence”;

   3. (3)

      a “serious violence offence” is, in turn, defined in s 5A. That definition relevantly includes a serious indictable offence that is constituted by a person engaging in conduct that causes grievous bodily harm to another person, with the intention of causing grievous bodily harm to another person;

   4. (4)

      a “supervised offender” is defined in s 5I(2). Relevantly, the definition includes an offender who is in custody or under supervision while serving a sentence of imprisonment for a serious offence.

3. [7]

   The defendant is currently imprisoned (although on parole in the community) for causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). It was common ground on this application that the Act applies to the defendant and an application can be made. He is serving a sentence of imprisonment for a serious violence offence and he is a supervised offender.

4. [8]

   Ultimately, on any final hearing the only issue will be whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision. Section 7(4) of the Act provides that before making an order appointing two experts, I must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order (“ESO”). Similarly, s 10A of the Act provides that an Interim Supervision Order (“ISO”) may not be made unless the offender’s current supervision will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

Submissions

1. [9]

   The test in s 5B(d) of the Act requires satisfaction to a “high degree of probability”. This constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal observed that:

2. [10]

   This position is made clear by s 5D which provides:

3. [11]

   The phrase “unacceptable risk” is not defined in the Act. The meaning of the phrase is a question of statutory construction to be determined having regard to its context and purpose.

4. [12]

   The correct approach was identified in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. Beazley P (with whom Gleeson JA agreed) there stated at [50]:

5. [13]

   Beazley P held at [58] that the phrase “unacceptable risk” is to be given its everyday meaning within its context and having regard to the objects of the Act, particularly the primary object of ensuring the safety and protection of the community.

6. [14]

   Section 6(3) of the Act sets out the necessary documentary requirements for an application for an ESO. The application must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act and includes a report prepared by a qualified psychiatrist, psychologist or registered medical practitioner that assesses the likelihood of the defendant committing a further serious offence. The State relied heavily on the report of Mr Ardasinski, a forensic psychologist.

7. [15]

   The State submitted that having regard to the test to be applied in this application and in consideration of the s 9(3) factors in the Act, the orders sought in the amended summons should be made.

8. [16]

   The defendant opposed the making of the orders sought because, it was submitted, the Court should not be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In the absence of such satisfaction the Court is required to dismiss the application at the preliminary stage: s 7(5).

9. [17]

   If the defendant’s submission on risk is rejected, and the Court forms the opinion that an ISO is warranted, then the defendant submitted that many of the conditions sought by the State were not appropriate, in the sense required by s 11, and either should not be made or not be made in the terms proposed. An amended form of the conditions was handed up at the hearing and marked Exhibit B. In the course of oral submissions, the State agreed in substance with all but two of the criticisms made by the defendant about the orders it originally sought.

10. [18]

    In determining whether there is a high probability that the defendant poses an unacceptable risk of committing another serious offence, if not kept under supervision, it is important to isolate that the risk relates to a “serious offence” and not just offending per se or even violent offending. It was submitted that much of the material relied on by the plaintiff concerns a history of violent acts none of which, save for the index offence, amounted to a “serious offence” within the meaning of that term in s 5A of the Act.

11. [19]

    It was submitted that the supporting documentation does not justify the making of an ISO. This was for the following reasons:

    1. (1)

       the index offence was by far the worst act of violence perpetrated by the defendant. It was significantly worse than the previous malicious wounding in 2005 (s 9(3)(h) and (h1));

    2. (2)

       the index offence occurred almost 10 years ago (ss 9(3)(e2) and (f));

    3. (3)

       the defendant has not been convicted of any further violent acts, serious or not, since the index offence (s 9(3)(h));

    4. (4)

       while the defendant breached parole in 2017 (and was returned to prison until release in February 2018) none of the breaches related to violent conduct (s 9(3)(h));

    5. (5)

       the defendant has lived without incident for 20 months in the community since February 2018 (s 9(3)(i));

    6. (6)

       the defendant has established a good relationship with the Community Corrections officers responsible for his supervision (s 9(3)(e2) and (f));

    7. (7)

       the defendant has been gainfully employed since release, as a gym instructor and a music agent, and is undertaking vocational training (s 9(3)(i));

    8. (8)

       the defendant has established a long-term (greater than a year) intimate relationship with his partner. Community Corrections officers have spoken with her and she is aware of his previous offending. The defendant and his partner have been able to manage difficulties in the relationship, including by the defendant spending time with his mother. This has been an important way in which the defendant has developed methods of being able to cope with domestic stress which was a factor in the index offence (s 9(3)(i));

    9. (9)

       the defendant has a good relationship with his mother who is elderly and is cared for by him. She too is aware of his offending and supported him through the criminal justice process (s 9(3)(i));

    10. (10)

        the defendant attends upon Mr Filshie, a psychologist, fortnightly (s 9(3)(e2) and (f));

    11. (11)

        the defendant regularly (approximately, monthly) attends Violent Offender Treatment Program (“VOTP”) sessions (s 9(3)(e), (e2) and (f));

    12. (12)

        the defendant has a stable home life, living predominantly with his partner and sometimes with his mother (s 9(3)(i));

    13. (13)

        the psychological tools relied on by Mr Ardasinski are population-based studies which do not take into account the above factors peculiar to the defendant. Much of the risk prediction is based on static elements which have limited value in determining risk in a dynamic setting (s 9(3)(d));

    14. (14)

        the defendant has been compliant with his parole conditions since February 2018 and the plaintiff’s expert considers the defendant’s “response to supervision has been positive overall” (s 9(3)(e2) and (f)); and

    15. (15)

        the defendant no longer drinks alcohol, which was identified as a possible triggering factor for previous acts of violence (s 9(3)(e2) and (f)).

Consideration

1. [20]

   The task of the Court at the preliminary hearing stage is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing. The Court’s task at this stage is to determine whether what is alleged in the supporting documentation would, if proved, justify the making of an ESO: Attorney General for New South Wales v Tillman [2007] NSWCA 119. There is no reason to doubt that the Tillman test continues to be appropriate despite subsequent amendments to the Act: see, for example, State of New South Wales v Bowdidge [2019] NSWSC 1177 per Bellew J. I understood Mr Beckett, who appeared for the defendant, to accept as much.

2. [21]

   In Lynn, Beazley P concluded, at [56], Gleeson JA agreeing at [147]-[148], that if an offender’s right to liberty were to be taken into account when determining whether a person was a high risk offender:

3. [22]

   Basten JA, at [128], expressed the correct approach in these terms:

4. [23]

   It is well established that the nature of the jurisdiction under the Act is protective of the community and the paramount consideration is the safety of the community: s 9(2).

5. [24]

   In addressing the question of whether what is alleged in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the matters set out in s 9(3) of the Act.

6. [25]

   Sub-section (a) has been repealed and subs (b) is not relevant to this stage of the proceedings.

7. [26]

   I have taken into account the report of forensic psychologist, Samuel Ardasinski, dated 16 July 2019. The results of the various assessments in Mr Ardasinski’s report (together with Mr Ardasinski’s overall conclusion) are critical to the State’s case.

8. [27]

   In relation to diagnosis, Mr Ardasinski observes:

9. [28]

   Mr Ardasinski notes that prior diagnoses include epilepsy, attention deficit hyperactivity disorder, conduct disorder, borderline personality disorder and post-traumatic stress disorder. The defendant’s history of self-report trauma includes witnessing his mother experience serious domestic violence at the hands of his father, physical abuse by his father, sexual abuse at age seven by a neighbour, sexual abuse by teenage boys, including anal rape, and other physical assaults at ages 16, 19 and 20.

10. [29]

    In relation to past history of trauma, Mr Ardasinski further records:

11. [30]

    In relation to the defendant’s attitude to the index offence Mr Ardasinski observes:

12. [31]

    Mr Ardasinski notes at par 20 that even though the defendant provides a great deal of rationalisation in his account of the index offence he did suggest that he was taking steps to minimise the risk of his entering into future high-risk situations, stating:

13. [32]

    Mr Ardasinski reviews the defendant’s relationships and notes at par 27 that:

    1. (1)

       the relationship with his mother is complex, his mother has been very dependent on the defendant, highly protective and overly involved in his life and decision-making; and

    2. (2)

       he has been forthcoming about his criminal history with his partner but protections have been put in place to ensure her safety including an open line of communication with Community Corrections.

14. [33]

    Mr Ardasinski notes the defendant’s capacity for relationship stability appears to be his most significant risk indicator. Mr Ardasinski notes at par 50 c:

15. [34]

    Critically, Mr Ardasinski opines about the risk of commission of further serious offences:

16. [35]

    Mr Ardasinski’s conclusion in the Executive Summary is that:

17. [36]

    This conclusion is perhaps the most important matter contained in the material supporting the State’s application and, if proved, would justify the making of an ESO.

18. [37]

    I have also had regard to the earlier report dated 10 August 2016 prepared by psychologist, Tara Rouse, titled “Violent Offenders Therapeutic Program Treatment Report”. In that report, in relation to the attitude of the defendant toward the offence, Ms Rouse states:

19. [38]

    In relation to future risk of violence, Ms Rouse opines:

20. [39]

    It is difficult to know what this opinion means, even for the limited purposes relevant at this stage of the proceedings. The first sentence is at odds with the remainder of the paragraph. Put another way, in identifying the matters “alleged” in the supporting material to the application, the internal inconsistency noted means that I am not confident that Ms Rouse’s opinion, at its highest, adds anything to the material I am required to take into account.

21. [40]

    Mr Ardasinski’s report contained statistical or other assessments. These are what are described as “actuarial” static and dynamic risk reports. The defendant has been the subject of the following risk assessment tests. Mr Emmett, who appeared for the State, accepted that I may properly take the view that the results of these tests should be given little weight. For the reasons that follow that concession was correctly made.

22. [41]

    This is an actuarial risk assessment tool targeting the risk of general and violent reoffending within the 12 month post-release period, and of an individual’s needs in terms of supervision in custody and on parole. The defendant was last assessed on 28 June 2019 and fell within the medium risk range.

23. [42]

    The Violence Risk Scale (“VRS”) is used to assess high risk factors associated with violence. It assesses both static and dynamic risk factors. The VRS was twice administered to the defendant by Ms Rouse (both pre- and post-treatment). The defendant’s pre-treatment score placed him in the high risk range of violent reoffending. The defendant’s score was compared by Ms Rouse with a sample of 918 Canadian inmates. Of the inmates who obtained a similar score to the defendant, 39.5% were criminally convicted of a new violent offence within five years of release. The defendant’s post-treatment score, administered on 3 August 2016, again placed him in the high risk range of violent reoffending – though there was some reduction in his score.

24. [43]

    The test was re-administered by Mr Ardasinski in July 2019, who explicitly recognised that there are “no Australian norms” for the VRS. The results were that:

25. [44]

    The test is designed to assess the risk of future violence in offenders. The defendant’s score of 23 was equal to, or higher than the score of 86% of the construction sample, and places him in the eighth of nine “bins” (the ninth being the highest). This classifies the defendant as high risk within the meaning of this test.

26. [45]

    This test specifically tests the risk of future domestic violence. The defendant scored 26, placing him in the seventh of seven “bins” and is higher than 98% of the offenders in the sample. 100% of offenders in the sample whose score fell in the same “bin” as the defendant reoffended with a further domestic assault during an average follow-up period of 4.8 years.

27. [46]

    Mr Ardasinski comments at par 45 that the result suggests:

28. [47]

    As to the results of the above tests generally, Mr Ardasinski states at par 48:

29. [48]

    Mr Ardasinski identifies the defendant’s risk factors and comments that the defendant:

30. [49]

    Mr Ardasinski notes that the most likely scenarios for further serious violence “would involve reactive and/or domestic violence. It would likely involve Mr Scruse perceiving that he had been disrespected, or be in retaliation for some perceived wrong, and based on his history, the ‘righteous anger’ response may include serious violence.”

31. [50]

    As noted above, Mr Ardasinski further states:

32. [51]

    It may be open to doubt whether, correctly understood, any of the tests described above meet the statutory description of a “statistical or other assessment” of the likelihood of persons with histories and characteristics “similar to those of the offender committing a further serious offence” within the meaning of the Act. The tests are certainly not a product of “actuarial” expertise as I understand that field of discourse. There is a lack of cogent evidence that any of these assessments shed light on the likelihood of persons with histories and characteristics “similar” to the defendant committing a further serious offence. As this was not the subject of argument, however, I will not decide this issue. I do, however, propose to give the test results little weight in this case. This is because:

    1. (1)

       In relation to the first study, the LSI-R, the 1995 Andrews and Bonta study was not available to the Court in the urgent period within which this judgment has been prepared: DA Andrews and J Bonta, The Level of Service Inventory – Revised (Multi-Health Systems, 1995). It appears that the LSI-R comprises 54 items, which are grouped into 10 subscales: Criminal History, Education/Employment, Finances, Family/Marital, Accommodations, Leisure/Recreation, Companions, Alcohol/Drug, Emotional/Personal, and Attitude/Orientation. While the LSI-R is regularly used in applications under this Act, a Corrective Services NSW Research Bulletin describes a “paucity of rigorous evaluations establishing the LSI-R within Australia”: Corrective Services NSW, The Utility of Level of Service Inventory – Revised (LSI-R) Assessments within NSW Correctional Environments, (2011).

    2. (2)

       The 2011 study examined 11,051 offenders with custodial sentences equal to or shorter than two years who were re-incarcerated within two years following release. While the Research Bulletin opines that the LSI-R performs “similarly to its use internationally”, I harbour significant doubts about the evidential value of that conclusion in this context. A study of offenders whose custodial sentences were equal to or shorter than two years may or may not provide probative evidence about the statutory task, being the likelihood or risk of this defendant committing a further serious offence as defined.

    3. (3)

       Mr Ardasinski does refer to a 2010 paper by English researchers: M Yang, SC Wong and J Coid, “The Efficacy of Violence Prediction: A Meta-Analytic Comparison of Nine Risk Assessment Tools” (2010) 136(5) Psychological Bulletin 740. I found this paper very useful. It states, relevantly (at 741 and 761):

    4. (4)

       In relation to the second study, the VRS, Mr Ardasinski recognised that “there are currently no Australian norms for comparison on this instrument”. Mr Ardasinski opined (but did not directly provide any references) that the VRS was “developing a strong normative base internationally … in Canada, New Zealand and other similar jurisdictions”. One of the studies said to validate the VRS, which is referred to in Mr Ardasinski’s reference list (SCP Wong and A Gordon, “The Validity and Reliability of the Violence Risk Scale: A Treatment-friendly Violence Risk Assessment Tool” (2006) 12(3) Psychology, Public Policy, and Law 279) examined 918 adult male offenders in Canada. The VRS is among the studies that the meta-analysis, referred to in (3) immediately above, examined and concluded should not be used as the sole or primary means of decision-making in cases of preventive detention.

    5. (5)

       On the face of Mr Ardasinski’s report the VRS has not been subject to any of the “repeated empirical validation with client groups that differ in demographic characteristics” suggested in the Yang, Wong and Coid study. I propose to give the VRS little weight.

    6. (6)

       In relation to the third study, VRAG-R, Mr Ardasinski himself conducted a VRAG-R assessment of the defendant. This method of assessment appears to have been largely based on work conducted in a secure psychiatric facility in Ontario, Canada: GT Harris et al, Violent Offenders: Appraising and Managing Risk (American Psychological Association, 3rd ed, 2015). The original VRAG was based on an initial study of 618 Canadian offenders. The revised VRAG-R was developed with 1,261 Canadian participants, which appears to have included 618 of the original participants: ME Rice, GT Harris and C Lang, “Validation of and Revision to the VRAG and SORAG: The Violence Risk Appraisal Guide – Revised (VRAG-R)” (2013) 25(3) Psychological Assessment 951. The VRAG (but not the VRAG-R) was also among the studies considered in the meta-analysis noted in (3) immediately above.

    7. (7)

       The VRAG-R focuses on 12 static risk factors in assessing an individual’s risk. These factors include whether the individual lived with both biological parents to age 16 (excluding the death of a parent), whether they were “maladjusted” in primary school, age at the time of the index offence, “conduct disorders” before age 15, and marital status at the time of the index offence: Harris et al at 285-297.

    8. (8)

       On the face of Mr Ardasinski’s report the VRAG-R has not been subject to any of the “repeated empirical validation with client groups that differ in demographic characteristics” suggested in the Yang, Wong and Coid study. There has not been any apparent validation based on an Australian study. I propose therefore to give the VRAG-R little weight.

    9. (9)

       The fourth study, DVRAG, contains 14 static risk factors. Again, this assessment appears to have been devised in Canada. There is no reference to Australian data validating the application of DVRAG to offenders with any of the defendant’s characteristics. Mr Ardasinski’s report does not identify the “normative sample” against which he compared the defendant. A paper released when the model was constructed in 2008 refers to a sample of 649 offenders: NZ Hilton et al, “An Indepth Actuarial Assessment for Wife Assault Recidivism: The Domestic Violence Risk Appraisal Guide” (2008) 32 Law and Human Behaviour 150.

    10. (10)

        On the face of Mr Ardasinski’s report the DVRAG has not been subject to any of the “repeated empirical validation with client groups that differ in demographic characteristics” suggested in the Yang, Wong and Coid study. There has not been any apparent validation based on an Australian study. I propose therefore to give the DVRAG little weight.

33. [52]

    Even for present limited purposes, if proved, I am not confident that the evidence based on any statistical tool in Mr Ardasinski’s report adds anything material to the topics I am required to take into account.

34. [53]

    Before giving these tools any real weight I would need to be persuaded of the predictive efficacy of any of the tools after they have been subjected to empirical validation which address and take into account:

35. [54]

    There is a report dated 2 August 2019 prepared by Corrective Services titled “Risk Management Report”. It contains little of relevance. To the extent it is relevant, the report tends against the making an ISO. The report makes clear that the defendant’s supervision will be transferred from the Corrective Services officers with whom he has built a good rapport. This seems at odds with the careful and nuanced recommendation by Mr Ardasinski that “any ESO would need to be tailored to match his level of progress to date and not impede his current positive momentum”.

36. [55]

    I have taken into account the treatment and rehabilitation programs that the defendant has participated in.

    1. (1)

       VOTP – VOTP is a prison-based residential therapy program for men with a history of serious violence. The program is 8 to 12 months in duration and consists of 3 sessions per week. The defendant completed the VOTP on 18 July 2016. As part of the treatment process, the defendant also participated in and completed the Real Understanding of Self Help (“RUSH”) program. In relation to his completion of the program, Mr Ardasinski observes:

    2. (2)

       EQUIPS – The defendant completed shorter, less intense EQUIPS programs including:

37. [56]

    According to Mr Filshie, a treating psychologist as at 18 September 2018, the defendant has been making significant progress. Mr Filshie recommends a continuation of the defendant’s mental healthcare plan to enable further counselling sessions.

38. [57]

    I have taken into account that the defendant was engaging in ongoing treatment in the community with psychologist, Bob Tsapilis, who opined as at 1 July 2017:

39. [58]

    On 26 November 2017, Mr Tsapilis stated:

40. [59]

    I have taken all of these opinions into account, mindful of the way in which at this stage I am required to approach the allegations against the defendant.

41. [60]

    If no order is imposed, the defendant will have unconditional liberty when his sentence expires on 30 November 2019.

42. [61]

    The defendant has been compliant since being re-released on parole on 23 February 2018. The defendant’s response to supervision has been positive overall. He is mostly responsive to the supervisory process and he has engaged in education and treatment programs as recommended or directed. This bodes well for his future compliance with any ESO. On the evidence, I am satisfied he is “likely” to comply.

43. [62]

    The defendant’s compliance whilst on parole was initially problematic. He failed to attend VOTP maintenance group meetings as directed. He failed to attend three out of the first four sessions in the EQUIPS Domestic Abuse Program in February 2017 and was removed from the group. He failed to seek approval prior to relocating from his approved residence after a domestic dispute with his girlfriend on 16 March 2017. Since being released in February 2018 his behaviour has been exemplary. He is employed as a personal trainer and has maintained a relationship for over a year. He has also participated in regular individual counselling with a private psychologist. The defendant has been attending VOTP maintenance group meetings regularly.

44. [63]

    This sub-section is not relevant in this case.

45. [64]

    The defendant’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere) and any pattern of offending behaviour disclosed by that history reveals the following.

46. [65]

    On 16 January 2010, the defendant violently assaulted his 19 year old girlfriend, Ms Tamara Lee. The assault included pushing Ms Lee which caused her to fall to the ground and hit her head. Ms Lee lost consciousness and did not regain it throughout the ensuing attack. The defendant stomped on Ms Lee’s head numerous times whilst she was unconscious. He threw a 6.8kg terracotta pot on Ms Lee’s head, causing the pot to shatter. Ms Lee lost approximately 1 litre of blood. Her injuries included major contusions to her face, eyes, ears and nose, a fractured jaw, a fractured eye socket, a subconjunctival haemorrhage causing blurred vision (since resolved), dental damage including loose and chipped teeth, residual scarring on her face and emotional and psychological trauma.

47. [66]

    On 20 February 2013, the defendant entered a plea of guilty to cause grievous bodily harm with intent to cause grievous bodily harm. He was sentenced to a term of imprisonment of 8 years and 1 month with a non-parole period of 5 years. According to JusticeLink, the sentence expires on 30 November 2019. The defendant unsuccessfully appealed the severity of the sentence.

48. [67]

    The defendant was released on parole on 30 October 2016. He breached parole by reason of failing to attend maintenance group sessions in a VOTP program in late 2016, failing to attend sessions in the EQUIPS Domestic Abuse Program in early 2017 and by relocating to his mother’s residence, without prior approval, on 20 March 2017.

49. [68]

    Parole was revoked on 4 April 2017 and he was arrested on 8 April 2017. On 23 February 2018, the defendant was re-released to serve the balance of parole.

50. [69]

    The defendant has a number of previous convictions. Whilst none are serious, they include a number of offences involving violence and/or the use of potential weapons:

    1. (1)

       Malicious wounding (juvenile offence) under s 35(1) of the Crimes Act 1900 – According to one of the psychiatric reports prepared in connection with the prosecution, it appears that on 30 July 1995 the defendant stabbed a school friend whilst playing. The Magistrate was not prepared to treat the matter as a mental health issue, but rather “one where you’ve got to accept responsibility”. The defendant was sentenced to probation for 18 months.

    2. (2)

       Malicious damage of property and resist arrest (juvenile offence) under ss 195(A) and 58 of the Crimes Act 1900 – On 13 June 1998, the defendant asked his mother for a loan. A verbal argument ensued. His mother agreed to loan the defendant money when he became aggressive. The defendant was sentenced to probation with conditions and 12 months supervision.

    3. (3)

       Malicious wounding under s 35(1) of the Crimes Act 1900 – On 27 February 2005, the defendant was drinking at a bar. A verbal confrontation occurred with a fellow patron. The defendant approached the victim from behind and smashed two glasses of beer into the victim’s head and face, causing lacerations to his face, head and lower back. The defendant was sentenced to a section 9 bond with 2 years supervision which included conditions for psychiatric and psychological counselling.

    4. (4)

       Custody of offensive implement in public place under s 11B(1) of the Summary Offences Act 1988 (NSW) – On 25 June 2006 at 2am, the defendant walked down the street carrying a large axe. Upon seeing police, the defendant discarded the axe and told police that it was for his personal protection. He was fined $300.

    5. (5)

       Apprehended Violence Orders (“AVO”) – The plaintiff suggested there have been at least five AVOs against the defendant, though the Court was only specifically directed to four AVOs:

51. [70]

    Although the evidence before me was equivocal, during his time in custody the defendant apparently incurred the following institutional misconduct charges:

    1. (1)

       Assault – On 10 April 2011, the defendant assaulted an inmate whilst two inmates held the cell door shut. The victim presented with a black puffy eye and red marks around his head. The evidence about any finding or conviction concerning this matter is unclear.

    2. (2)

       Fail to comply with correctional centre routine and disobey direction – On 5 December 2013, the defendant yelled at prison officers and punched a window. He threatened staff and threw a pen at staff. Force was required to remove the defendant to his cell.

52. [71]

    There is no recorded institutional misconduct since 2013.

53. [72]

    The index offence was obviously a significant episode of violence. I take into account all of the material in relation to that offence and the other offending described above.

54. [73]

    I have had regard to the views of the sentencing court at the time the sentence of imprisonment was imposed on the defendant: R v Wainwright [2014] NSWDC 368. Norrish QC DCJ gave a discount of 10% for the plea. His Honour took into account, as an aggravating factor, that the offence was committed against a vulnerable person, in that the victim was unconscious when the defendant stomped on her head and threw the pot against her head. His Honour accepted the offence was not planned. His Honour observed that the defendant had not accepted responsibility for his actions. Judge Norrish noted the defendant’s mental health history including the possibility of borderline personality disorder, post-traumatic stress disorder, depression and anxiety. His Honour considered that the evidence as to mental health was complex and the various opinions were difficult to reconcile. Whilst there was diagnostic uncertainty, his Honour ultimately agreed with the assessment that:

55. [74]

    Norrish QC DCJ noted that Community Corrections assessed the defendant as having a medium risk of reoffending and that particular attention would need to be paid to the defendant’s mental health whilst on parole. His Honour concluded that the defendant would need an extended period of time to adjust to community living, but that, subject to supervision, he would not be a danger to the community. I have also taken into account the judgment of the Court of Criminal Appeal: Wainwright v R [2016] NSWCCA 19.

56. [75]

    I have also taken into account:

    1. (1)

       In the Pre-Sentence Report prepared on 13 May 2013, it was noted that the defendant was assessed as a medium to high need for intervention. His criminogenic needs were identified as mental health and alcohol abuse.

    2. (2)

       In a Breach of Parole Report prepared on 22 December 2016, the defendant was considered to be a medium to high risk offender with numerous criminogenic needs, most notably mental health, personality disorder and alcohol abuse. His response to supervision was considered poor, with the defendant failing to follow through with directions and displaying manipulative behaviours toward parole officers. The defendant was removed from the VOTP maintenance program for non-attendance. The defendant also failed to attend assessment on two occasions with a psychologist. Overall, he was considered “challenging to supervise” and issued a warning.

    3. (3)

       In a Pre-Release Report dated 15 August 2016, the defendant was considered suitable for a medium level of intervention. Recommended parole conditions included abstinence from alcohol, a VOTP maintenance program and psychological and psychiatric assessment and counselling.

    4. (4)

       In a Pre-Release Report dated 2 February 2018, it was noted that the defendant had incurred no internal charges since returning to custody. He could be challenging and demanding but presented no serious management issues. The defendant was assessed as requiring a medium to high level of intervention.

    5. (5)

       In Mr Ardasinski’s report dated 16 July 2019, it was considered that the mitigation of future risk would be enhanced by ongoing future supervision and community and individual risk management sessions.

57. [76]

    The defendant has established a long-term (greater than a year) intimate relationship with his partner who was present in Court at the hearing before me. Community Corrections have spoken with her and she is aware of the defendant’s previous offending. The defendant and his partner have been able to manage difficulties in the relationship, including by the defendant spending time with his mother. This has been an important way in which the defendant has developed methods of being able to cope with domestic stress, which was a factor in the index offence.

58. [77]

    The defendant has a good relationship with his mother who is elderly and is cared for by him. She too is aware of his offending and supported him through the criminal justice process.

Conclusion about the making of an interim supervision order and order for psychiatric assessment

1. [78]

   Section 10A of the Act provides that before making an order appointing two experts under s 7(4) of the Act, I must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. The test in s 5B(d) of the Act requires satisfaction to a “high degree of probability”. This constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard.

2. [79]

   I am ultimately persuaded that the conclusion expressed by Mr Ardasinski, if proved, would justify the making of an ESO. That conclusion is set out at [35] above.

3. [80]

   I have concluded, taking all of the material before me into account, that if the allegations made in the material provided by the State were proved, a Court would be justified in making an ESO.

Terms of the ISO

1. [81]

   Section 11 of the Act provides a specific power to the Court to impose such conditions as part of an ISO, “as the Supreme Court considers appropriate”. That power is constrained by the terms of the Act and particularly the scope of s 11: Winters v Attorney General for New South Wales [2008] NSWCA 33 at [19] per Mason P.

2. [82]

   What the Court may judge to be appropriate is governed by the primary reason for the ISO, namely to mitigate the “unacceptable risk of committing another serious offence” which the Court must necessarily have found in order to make an ISO.

3. [83]

   The correct legal test was pithily described by Beazley P in Lynn as follows:

4. [84]

   A critical part of the material urged by the State in this case is Mr Ardasinski’s report. That report makes clear that “given Mr Scruse’s positive progress and forward momentum, it would be detrimental to require him to adhere to more stringent conditions of supervision under an ESO than he has, and will have further, built up to by the end of his parole period”.

5. [85]

   I do not propose to impose any conditions upon the defendant as part of an ISO that have effect beyond the conditions imposed by the defendant’s parole. The defendant has successfully lived in the community since February 2018 without incident and in compliance with his parole conditions. He is employed and in a happy and stable personal relationship.

6. [86]

   In framing the conditions of the ISO I note that the defendant has, for some time, lived both at his partner’s house and his mother’s house. It has been recognised by Community Corrections that the ability to retreat to his mother’s house is an appropriate way in which to manage any difficulties at his partner’s address. The conditions I impose are with the express intention that this situation continue. As I made clear in discussion with counsel for the State, any change in this arrangement preventing the defendant from moving freely between the two residences is a step which should not be taken lightly.

7. [87]

   In relation to the orders sought by the State which I have not made, my reasons may be expressed briefly. I have concluded that proposed orders 21-25 travel well outside the existing conditions of parole and are not necessary to promote the aim of community safety. I am satisfied that orders 6 and 14 in combination are sufficient for the purpose of ensuring that, if thought desirable, there be testing of the defendant in relation to alcohol consumption. A more general search and seizure power is unwarranted. Such a condition would, to adopt Mr Ardasinski’s phrase, “impede Mr Scruse’s current positive momentum” to the possible detriment of the defendant and community safety. Equally, the 7 day (rather than 24 hour) period to notify a change in medication is sufficient to meet the object of the ISO I will impose. The other changes I have made to the conditions suggested by the parties in Exhibit B are designed to make Mr Scruse’s compliance obligations as clear as possible.

Conclusion and orders

1. [88]

   For the foregoing reasons I make the following orders:

   1. (1)

      Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) appoint two qualified psychiatrists as agreed by the parties to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties.

   2. (2)

      The defendant is directed to attend those examinations.

   3. (3)

      The defendant is to be the subject of an interim supervision order to commence at midnight on 30 November 2019. The conditions attaching to that order are those set out in the Schedule to these orders.

   4. (4)

      The interim supervision order is to be for a period of 28 days.

   5. (5)

      The defendant is to comply with the conditions set out in the Schedule to these orders for the period of the interim supervision order.

   6. (6)

      Access to the Court’s file for any document shall not be granted to a non-party without 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 respect of the application for access.

   7. (7)

      Liberty is granted to the parties to approach the High Risk Offenders List Judge to obtain hearing dates for any application for an extension of the interim order or the final hearing of the matter, and to fix a timetable for the filing and serving of evidence and submissions.

   8. (8)

      Liberty is granted to the parties to apply to the chambers of Payne J on one day’s notice in relation to order 1 if the parties cannot reach agreement for the purposes of that order.

Part A: Reporting and Monitoring Obligations

1. [1]

   The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2. [2]

   The defendant must report to the Departmental Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3. [3]

   The defendant must comply with any reasonable direction given by a DSO, or any other person supervising him, for the administration of the ISO or any condition of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

4. [4]

   The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

1. [5]

   The defendant must live at an address approved by his DSO. [3]

2. [6]

   The defendant must allow his DSO or any other person supervising him to visit him at his approved address or addresses at any time and, for that purpose, to enter the premises at that address.

3. [7]

   The defendant must not spend the night anywhere other than his approved address or addresses without the approval of his DSO.

Part C: Place and travel restrictions

1. [8]

   The defendant must not leave New South Wales without the approval of CSNSW.

2. [9]

   The defendant must surrender any passports held by the defendant to the Commissioner.

3. [10]

   The defendant must comply with any reasonable direction not to go to a place given by a DSO, or any other person supervising him, where such a direction is reasonably necessary for the administration of the ISO or any condition of the Order.

Part D: Employment, finance and education

1. [11]

   The defendant must not start any job, volunteer work or educational course without notifying his DSO.

2. [12]

   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol

1. [13]

   The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

2. [14]

   The defendant must submit to testing for drugs and alcohol as directed by his DSO.

3. [15]

   The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of his DSO.

4. [16]

   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association

1. [17]

   The defendant must comply with any reasonable direction not to associate with people that his DSO, or any other person supervising him, tells him not to, where such a direction is reasonably necessary for the administration of the ISO or any condition of the Order.

2. [18]

   If the defendant starts an intimate relationship with another person, he must within 7 days tell his DSO who may tell the person about the defendant’s criminal history.

Part I: Access to the internet and other electronic communication

1. [19]

   The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

2. [20]

   The defendant must provide a list of communication devices and data storage devices in the defendant’s possession, and any services, email addresses and applications that the defendant uses to communicate with or to access the internet. The defendant must advise his DSO of any changes or updates to the provided lists immediately.

Part L: Personal details and appearance

1. [21]

   The defendant must not change his name from “Trent Keith Wainwright” or “Trent (Keith) Scruse” or use any other name without the approval of his DSO.

2. [22]

   The defendant must not use any alias, log-in name, or a name other than “Trent Keith Wainwright” or “Trent (Keith) Scruse” or use any email address other than those known to the DSO under condition 20 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

3. [23]

   The defendant must not change his appearance without notifying his DSO.

4. [24]

   The defendant must let CSNSW photograph him.

5. [25]

   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part M: Medical intervention and treatment

1. [26]

   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

2. [27]

   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

3. [28]

   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the health practitioner who prescribed the medication and his DSO within 7 days of ceasing to take the medication.

4. [29]

   The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

5. [30]

   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.