State of New South Wales v Barlow (Preliminary)

1. [1]

   By summons filed on 21 February 2022, the plaintiff, the State of New South Wales (the State) brings proceedings against the defendant, Charles Cameron Barlow (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   The State seeks preliminary orders, interim orders and final relief in the nature of an extended supervision order (ESO).

3. [3]

   This is the judgment in respect of the preliminary hearing.

4. [4]

   The issue I am determining is whether I should make the orders for interim relief appointing two qualified psychiatrists and/or psychologists to conduct examinations and provide reports, as well as an order directing the defendant to attend those examinations.

5. [5]

   I am also considering whether the defendant should be subject to an interim supervision order (ISO) for a period of 28 days commencing on 19 May 2022. The defendant’s period on parole expires on 18 May 2022. If an ISO is not made, he will be in the community without any supervision.

6. [6]

   At this preliminary stage, the defendant does not dispute that he should be subject to an ISO and that orders should be made requiring him to attend the medical examinations.

7. [7]

   The focus of the dispute on the hearing related to the conditions which should be imposed at this preliminary stage. Having said that, it is necessary that I be independently satisfied that he should be subject to an ISO and attend the medical examinations.

The legislative scheme

1. [8]

   The primary object of the Act is protective rather than punitive. It provides for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act.

2. [9]

   The Court may make an order for the interim supervision of an offender, pursuant to s 10A of the Act, if in proceedings for an ESO, it appears to the Court that:

3. [10]

   The defendant’s current period of supervision in the community will expire before the proceedings are determined.

4. [11]

   It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmot (Preliminary) [1] (“Wilmot”); State of New South Wales v Sturgeon [2] (“Sturgeon”).

5. [12]

   It follows, that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6]; Wilmot at [7].

6. [13]

   An ESO may be made if the matters set out in ss 5B(a)–(c) of the Act are established and 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 under the order: s 5B(d) of the Act.

7. [14]

   The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [3] at [23]–[24] as follows:

The defendant’s position

1. [15]

   The defendant accepts for the purpose of the preliminary hearing that:

2. [16]

   However, I am required to be independently satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO before I would make any ISO.

Evidence relied upon by the State

1. [17]

   The State relies on a range of material including:

   1. (1)

      Historical material being material relating to his earlier offending, behaviour in custody and evidence of a breach of parole back in 2011, as well as psychiatric and psychological evidence all predating 2016;

   2. (2)

      Up-to-date material such as New South Wales Department of Corrective Services case notes;

   3. (3)

      A risk assessment report dated 5 October 2021;

   4. (4)

      A risk management report obtained for the purposes of this application;

   5. (5)

      A report of the Parole Authority and parole conditions;

   6. (6)

      Pre-release reports from Community Corrections; and

   7. (7)

      An affidavit of Kelli Grabham, High Risk Offender Applications and Operational Governance Officer in the Extended Supervision Order team employed by Corrective Services NSW.

2. [18]

   As the defendant does not dispute that he should be subject to an ISO and most of the conditions proposed by the State, it is not necessary to comment on all of this material in any detail in this judgment but I will refer to relevant parts when commenting on the defendant’s background and the conditions.

Background

1. [19]

   The defendant is a 31 year old Indigenous man. He comes from a troubled background and difficult childhood. His parents separated at an early age (although they have reconciled subsequently) and he lived with his grandfather until he was 10. He was placed in the care of the State thereafter.

2. [20]

   The defendant has an extensive criminal history which commenced in 2002 when he was only 11 years old. Although much of the offending might be described as minor, some of the offending involved violence, including domestic violence as well as property theft or damage. Further, it is apparent from his criminal history that he has had difficulty complying with bail or parole conditions.

3. [21]

   Whilst he completed primary school, he experienced difficulties in high school. He informed a psychologist, Mr Patrick Sheehan, in 2015 that he had been placed in a special class. He says he commenced using cannabis in Year 7. It seems that he left school around that time. He has not undertaken any education since early high school.

4. [22]

   He has never had a paid job. According to Mr Sheehan, he described having a lifelong association with persons where crime and criminal activity were considered normal.

5. [23]

   He has had relationships including a number of intimate relationships.

6. [24]

   His most significant relationship was with the daughter of the person who he came to assault on 18 August 2013, the assault being the subject of the index offence. She was living with her mother at that time. They had a child who was four years old in 2013.

7. [25]

   In 2011 the mother of that young woman obtained an apprehended domestic violence order for her protection. On 18 August 2013 the defendant attended at the mother’s home, albeit the young woman was not there. An altercation took place and the defendant struck the mother in the face and head several times. A friend of the mother arrived at the house some time later and observed her lying on the couch bleeding. The defendant was still there. The defendant commenced assaulting the mother again, kicking her in the stomach, hitting her and punching her in the head. When she fell to the floor, the defendant continued to kick her. He then became involved in a fight with the friend. It seems that there was some issue between them relating to the defendant’s young son.

8. [26]

   When the Police arrived, the defendant was still at the premises. He was holding his son as well as a knife. He was observed to hold the knife near the child’s throat and yell, “I’ve barricaded the house, fuck off or I’ll kill them all”. A stalemate ensued. At some stage a Police Officer entered the premises. The defendant responded by grabbing the mother by the hair and using her as a shield. He again threatened to kill her and pushed a knife towards her throat. He also kicked, punched and elbowed her.

9. [27]

   It is only necessary to say that the violence that happened inside the premises that day was significant. It involved the use of a knife as well as acts of violence over an extended period.

10. [28]

    The mother was diagnosed with a traumatic brain injury. She suffered a fractured eye socket. She remained in intensive care for 14 days.

11. [29]

    The defendant was sentenced to an aggregate sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years and 6 months for the index offending. His total sentence expires on 18 May 2022.

12. [30]

    The defendant was released on parole on 22 February 2022. Since being on parole, he appears to have complied with his conditions of parole.

13. [31]

    He has sought assistance from Dignity Limited (Dignity), a not for profit organisation that provides services to persons at risk of homelessness. I am in receipt of a letter from the Operations Manager of Dignity dated 6 April 2022. The defendant arrived at Dignity on 22 February 2022. The Operations Manager, Gabrielle McPherson, says that the defendant has been forthright about his history. He has been assisted by support workers who manage his temporary accommodation. As of 13 April 2022, he has moved into his own accommodation which he will lease for a period of 12 months.

14. [32]

    Further, he has been offered 20 hours per week employment with a corporate partner of Dignity. He is hoping to obtain a forklift operator’s licence.

15. [33]

    It is apparent that the support that he has received from Dignity has been beneficial to him.

16. [34]

    An officer from Community Corrections has suggested that Community Corrections has no concerns about the defendant at this time. He has started his TAFE course and is undertaking a Certificate III in Warehousing, attending 4 days per week for 6 weeks. It seems that he is guaranteed employment on completion of the course. He is said (by the officer) to be committed and focused.

17. [35]

    According to Mr Sheehan, the defendant’s intellectual functioning is at the lower end of the range. His background is characterised by cross-generational disadvantage, deprivation and antisocial behaviour that is commonly observed in men with persistent and diverse adult offending. His prospects may be improved by both participation in institutional programmes and through stable accommodation.

18. [36]

    These views are supported by Holly Cieplucha, a Senior Psychologist in the Serious Offenders Assessment Unit at the Long Bay Correctional Complex. Ms Cieplucha identifies a number of criminogenic needs or risk factors which are relevant to his risk of violent reoffending. They include:

    1. (1)

       His violent lifestyle;

    2. (2)

       Violence during institutionalisation, criminal associations and weapon use;

    3. (3)

       His general aggression and impulsivity;

    4. (4)

       His lack of insight into violence;

    5. (5)

       His substance abuse; and

    6. (6)

       His lack of community support.

19. [37]

    She says that serious violent offending would most likely occur in response to situational stresses related to an intimate relationship that he might form. He is in the high risk range for violent reoffending.

20. [38]

    To improve his chances of a successful reintegration into the community, he would benefit significantly from having stable accommodation with established linkages to appropriate support and assistance to implement appropriate risk management strategies. He would also benefit from a structured routine through employment.

21. [39]

    He has now secured stable accommodation but not yet commenced employment.

22. [40]

    As set out in the supplementary pre-release report prepared by the Community Corrections Officer, the defendant acknowledges that he is a violent person and requires assistance to not use violence in the future. Yet, having struggled to find interventions that would assist, he did not see the benefit in engaging in offence targeted programmes in a custodial environment.

Findings

1. [41]

   I will comment further on the material when considering the conditions which are in dispute. It is only necessary to say that:

   1. (1)

      The defendant falls in the high risk range for general and violent reoffending;

   2. (2)

      There remain a number of dynamic risk factors which impact upon his risk of violent reoffending, including a history of engaging in violence across a range of contexts, including in the company of negative peers and involving the use of weapons. His violence has continued in the correctional environment to a certain extent;

   3. (3)

      He has had difficulty managing negative emotions and has used both verbal and physical aggression in interpersonal interactions;

   4. (4)

      He demonstrates impulsivity and a lack of capacity to engage in consequential thinking;

   5. (5)

      He has limited insight into his problems with violence, albeit he recognises that he is a violent person;

   6. (6)

      The index offence occurred in the context of heavy substance abuse, albeit there is no evidence to suggest recent substance abuse;

   7. (7)

      Prior to commission of the index offence he demonstrated a poor response to supervision, although again, that historical factor must be considered in light of his ongoing compliance with his conditions of parole;

   8. (8)

      He has completed the EQUIPS suite of programmes whilst in custody, although he did not complete the violent offenders therapeutic programme which was considered most appropriate for him;

   9. (9)

      There is no current apprehended violence order in place, although again, he has not had any contact with his former partner since the index offence; and

   10. (10)

       His response to supervision has been historically unsatisfactory but again it is necessary also to have regard to the fact that he has complied with his conditions of parole since being released on 22 February 2022.

2. [42]

   I am satisfied having regard to all of the evidence that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

3. [43]

   In these circumstances, I must make an order appointing two psychiatrists and/or psychologists to conduct examinations and to furnish reports to the Court. I still have a discretion as to whether to make an ISO but, in the circumstances, I am satisfied an ISO should be made.

4. [44]

   At least between the parties, there remains an issue as to the conditions which should be imposed. The defendant has been complying with his conditions of parole since being released. However, he still poses a high risk of reoffending, having regard to his risk factors.

The conditions

1. [45]

   The defendant accepts most of the State’s proposed conditions. The State has agreed to a small number of changes as proposed by the defendant. A small number of conditions remain in dispute.

2. [46]

   Annexed to this judgment is a schedule of conditions which I consider should be imposed. I will comment only on the conditions in dispute.

3. [47]

   The Court is permitted to impose such conditions as it “considers appropriate”: s 11 of the Act. That necessarily involves the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper: State of New South Wales v Ali. [4]

4. [48]

   The conditions must be related to the mitigation of the unacceptable risk: State of New South Wales v Burns. [5]

5. [49]

   The conditions must not be unnecessarily onerous. Further, they must address identified risk factors but these must be considered in a realistic way: State of New South Wales v Ley Thomas Baker (No 2). [6]

6. [50]

   Any condition must have the capacity to reduce or mitigate the risk which is unacceptable rather than merely being a condition which may be more generally appropriate in respect of serious violent or serious sex offenders. Merely identifying the possibility that a particular condition might reduce or eliminate the risk without regard to the particular offender’s specific risk factors would not suffice.

7. [51]

   The State seeks the following conditions:

8. [52]

   The defendant says that he should not be subject to such conditions.

9. [53]

   The State relies on the report of Kelli Grabham as to the appropriateness and benefits of electronic monitoring and a condition requiring that the defendant provide a weekly schedule of movements. Ms Grabham suggests that the proposed condition in respect of electronic monitoring merely provides the Departmental Supervising Officer (DSO) with the ability to direct the defendant to wear electronic monitoring equipment. It can be implemented at the discretion of the DSO. She refers to four ESO monitoring stages which differ with regard to the requirements for electronic monitoring, a schedule and a curfew.

10. [54]

    She says the equipment is not cumbersome and can be concealed by long pants. In her experience, fixing electronic monitoring to a defendant’s ankle does not impede employment prospects generally.

11. [55]

    The State submits that electronic monitoring and a schedule of movements would assist in monitoring the defendant’s movements to ensure that he is not frequenting areas where he may gain access to illicit substances. Further, the State points to the defendant’s history of breaching bail and apprehended domestic violence orders.

12. [56]

    It is suggested that a schedule of movements is appropriate so that his DSO has advance notification of anticipated movements and so as to assist the defendant in developing a routine.

13. [57]

    The defendant opposes these conditions, principally on the basis that these conditions are more onerous than the conditions to which he has been subject since being released on 22 February 2022. The defendant says that he has shown himself capable of complying with his conditions of parole and that there have been no instances of conduct which might suggest that he would not continue to comply with less onerous conditions in such a way as to negative the risk factors.

14. [58]

    In particular, the defendant says that the requirement to wear an ankle bracelet will impede his employment prospects and reintegration into the community. He has a concern that others may infer he is a sex offender. He has had no contact with the victim or his ex-partner since the index offending.

15. [59]

    I am not satisfied that the defendant should be subject to either electronic monitoring or a schedule of movements. As the defendant points out:

    1. (1)

       He has settled into stable accommodation;

    2. (2)

       He is undertaking a course and pursuing employment options; and

    3. (3)

       He is complying with his current conditions of parole.

16. [60]

    In my view, imposing electronic monitoring and a schedule of movements would be regressive.

17. [61]

    Whilst the primary object of the Act is to provide for extended supervision so as to ensure the safety and protection of the community, another object of the Act is to encourage high risk offenders to undertake rehabilitation: s 3(2) of the Act.

18. [62]

    I am not satisfied that these conditions would be appropriate having regard to the defendant’s risk factors. His offending has tended to be impulsive and associated with either being in the company of antisocial peers or the breakdown of a domestic relationship. Certainly, substance abuse may be a trigger but it is not clear to me how monitoring of his movements would impact upon those risk factors in the particular circumstances of this case.

19. [63]

    In the circumstances, I do not consider that there is a sufficient nexus between the defendant’s risk factors and the need for electronic monitoring or a schedule of movements.

20. [64]

    The proposed condition is set out as follows:

21. [65]

    The defendant opposes this condition on the basis that it would unreasonably restrict his ability to obtain work. The effect of the condition would be that he could not actually start work until he obtained the approval of his DSO.

22. [66]

    I raised with the parties that, bearing in mind his limited education and qualifications and despite the fact that he is apparently undertaking a course so as to obtain a licence to operate a forklift, it might be expected that some of the employment he would obtain would be casual, spasmodic or on a daily or weekly basis. I have a concern that Condition 18 might restrict his ability to obtain such work. I suggested that a solution may be to impose the qualification: “unless it is not reasonably possible to do so”.

23. [67]

    The State agreed with this suggestion. The defendant opposes the condition on the basis that:

    1. (1)

       Condition 19 requires him to notify his DSO if he ever has any change in his employment; and

    2. (2)

       The State has not established that a particular type of employment might impact upon his risk factors. The defendant again highlights that he is not a sex offender. In any event, his offending has been associated with impulsivity rather than planning.

24. [68]

    In my view, it is appropriate that the defendant keep his DSO informed of the work that he is performing. It is hardly an onerous obligation. Any problem with it not being practical to inform the DSO in advance of commencing new employment may be solved by the addition of the words I propose.

25. [69]

    In the circumstances, Condition 18 will be amended to include the words “unless it is not reasonably possible for him to do so”.

26. [70]

    Condition 29 is proposed in the following terms:

27. [71]

    The State says that this condition does not require a blanket disclosure and is exercised at the discretion of the DSO. The State says that it is particularly important, given that the index offending occurred in a domestic setting. This condition would enable a DSO to disclose the defendant’s criminal history to a domestic partner and/or family whenever it is deemed necessary to do so.

28. [72]

    The defendant submits that the condition is potentially a highly invasive condition which may discourage the defendant in building prosocial relationships at work and elsewhere. It has the capacity to impede the defendant’s rehabilitation and thereby increase the risk of violent reoffending.

29. [73]

    I agree with the defendant. There has been only one incidence of serious violent offending being the index offence. Whilst that offending occurred in a domestic situation, it will be important not to impede the defendant’s capacity to form relationships. Just as stable accommodation and employment will reduce his risk factors, so will the development of positive relationships with his peers.

30. [74]

    In my view, the State has not established that Condition 29 is appropriate.

31. [75]

    Whilst there was a dispute as to Condition 31 the State agrees with the defendant’s proposed amendment to Condition 31.

32. [76]

    The State submits that proposed Conditions 32 to 42 are all relevant to managing risks associated with internet use and devices. The conditions are sought to assist in mitigating his current dynamic risk factors. The State refers to Wilde v State of New South Wales [7] as supporting the proposition that there does not need to be a demonstrated link to the past offending for such a condition to be imposed. Rather, what is required is an assessment of whether the condition is appropriate to address the risk of future offending. In this regard, the State points to the risk assessment report and the possibility of the defendant identifying with criminal peers as being something which would escalate the risk.

33. [77]

    Further, drug use has been identified as a major influence upon the defendant’s past offending behaviour.

34. [78]

    Monitoring the defendant’s internet usage could allow the DSO to be aware of contact with any past, future or current domestic partners or even the victim of the index offence and the victim’s family.

35. [79]

    Again, the defendant points to the fact that he is not a sex offender. Further, the defendant submits there is adequate monitoring of the defendant’s association through other conditions such as Condition 3 and Condition 27. The defendant submits that the protection of his privacy is significant.

36. [80]

    It is difficult to link the imposition of such conditions with mitigation of risk having regard to the defendant’s history of offending. None of his offending has been related to the use of the internet. None of his offending has been planned. It may be unlikely that, if he regresses into substance abuse, such substance abuse will be reduced by the DSO having access to his electronic devices.

37. [81]

    Further, there is nothing in the defendant’s history which might suggest that in some way joining a social networking service or using message applications or services such as WhatsApp would increase his risk of reoffending.

38. [82]

    In my view, Conditions 32 to 42 are standard conditions which the State often seeks to impose on sex offenders. It is not clear to me how restricting the defendant’s internet usage or providing the DSO with access to his phone or any computer necessarily reduces the risk factors which exist in this matter.

39. [83]

    The State has not established that any of the Conditions 32 to 42 are appropriate.

40. [84]

    The defendant consents to Condition 43 except that he submits that it must be modified to delete the words “any computer, or electronic and communication device”. This is consistent with the defendant’s opposition to Conditions 32 to 42.

41. [85]

    The State submits that those words contained in Condition 43 relate to Conditions 32 to 42. As I have rejected Conditions 32 to 42, I accept that Condition 43 should be amended so as to delete those words.

42. [86]

    The defendant must notify a DSO of the identity and address of any healthcare practitioner that it consults. The State now agrees with the defendant’s proposed amended condition.

Orders

1. [87]

   I make the following orders:

   1. (1)

      Pursuant to s 7(4) of the Act:

   2. (2)

      Pursuant to s 10A of the Act, the defendant be subject to an interim supervision order from 19 May 2022 (“the interim supervision order”);

   3. (3)

      Pursuant to s 10C(1) of the Act, the interim supervision order 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; and

   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 for access.