State of New South Wales v Azar (Preliminary)

HIS HONOUR:

This judgment is directed to the preliminary hearing on the application (by the State) for an ISO. Overall, an ESO is sought on the basis that the defendant requires a period of structured supervision to address his criminogenic needs and ameliorate his risk of committing another serious offence.

The defendant was born in February 1995 and is aged 25. He has four older siblings. He completed year 10 at a behavioural college and thereafter left school to work as a spray painting apprentice. The defendant has a history of substance abuse and mental health issues. He was suffering from undiagnosed schizophrenia at the time of the index offence.

On 14 August 2013, when aged 18, the defendant committed the index offence of manslaughter. This is a serious violence offence under the Act. He was sentenced to 7 years imprisonment with a non-parole period of 4 years, commencing on 19 December 2013 and expiring on 18 December 2017. Although the defendant was released to parole, it was later revoked due to the commission of further offences.

The defendant was returned to custody on charges of:

The circumstances of the offending involved the defendant attempting to attack members of his family. An ADVO (Apprehended Domestic Violence Order) was taken out with his sisters listed as the Persons In Need Of Protection (PINOPs). A non-contact ADVO was also granted with his uncle as the PINOP.

The defendant is presently serving the balance of parole for the index offence (being 2 years 6 months and 5 days). His full sentence is due to expire on 18 December 2020.

The defendant’s relationship with his siblings appears to have improved since the ADVO, as three of the siblings recently moved in together and have requested that the defendant stay with them if he is granted parole to enable them to monitor his mental health and substance use. His parents separated at some stage since his return to custody in 2018.

In addition to the five offences, which took place in June 2018, the defendant has been convicted of the following additional offences:

The defendant first appeared before the courts when he was aged 18. It can also be seen that the 2013 offences occurred within a six month period leading up to the index offence.

The circumstances of the index offence were as follows. On 13 August 2013, the defendant and Mr Mohamed El-Chami were with the victim, Mr Bassem Salameh, inside his apartment. At approximately 8:00pm, Mr Salameh is alleged to have pinched the defendant on the buttocks while he was sleeping. The defendant took this to be a homosexual advance and was extremely angered by it. Mr El-Chami was woken by the defendant’s angry response and the two men left the apartment. According to Mr El-Chami, Mr Salameh had already locked the front door so they had to break and climb out a window.

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

The defendant ultimately pleaded guilty to facts which identified Mr Kaddour as the main assailant, who beat Mr Salameh to death. The defendant’s role involved assisting in the beating by use of a metal pole, and grazing Mr Salameh’s neck with a hacksaw. The judge found that the defendant was the initiator of the assault.

Mr Salameh died from blunt force injuries to the head. He sustained additional injuries including fractures and lacerations to different parts of his body and head. He suffered broken ribs from being stomped on and a ruptured eye. It was noted that the weapons used to assault Mr Salameh were primarily objects found in the apartment. An unspent bullet was found at the back of the deceased’s throat.

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

On 20 August 2013, the defendant was charged with murder. After a psychological review, it was generally held that the he was suffering from a schizophrenic illness at the time of the offence. On 9 October 2015, he was found unfit to stand trial, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act), by Wilson J and the matter was referred to the Mental Health Review Tribunal (Tribunal).

The defendant commenced antipsychotic treatment on 22 January 2014 and on 24 March 2016, the Tribunal determined that the defendant was fit to stand trial. A fitness hearing took place before Mathews AJ on 18 April 2016, who found the defendant fit to be tried. The defendant subsequently entered a plea of guilty to the offence of manslaughter (on the basis of his impaired mental health at the time of the offence). On 16 May 2017, he was sentenced. It was noted that he had received appropriate treatment, had ceased taking illicit drugs, and that this had resulted in a “significant improvement in his condition”.

While detained on the murder charge, the defendant was convicted of break and enter and steal contents valued in excess of $60,000. He had committed this offence before entering custody. The offence was unrelated to the manslaughter offence and involved breaking and entering a shop to obtain money and property. He received a 16 month sentence with a non-parole period of 10 months, which commenced on 2 December 2013.

On 1 December 2017, the State Parole Authority (Authority) granted the defendant parole, and he was released into the community on 18 December 2017.

The defendant’s response to parole was mixed. Despite some officers claiming a positive response to parole supervision, within three months of his parole order he commenced displaying some non-compliant behaviour. This included missing his psychological appointments, continually seeking out anti-social associates who were involved in drug supply, engaging in behaviour that his supervising officer considered to be glorifying his offending, and becoming increasingly aggressive towards family members and the Prevention Early Intervention and Recovery Service (PEIRS) staff who had been working with him to manage his mental health.

He was placed on electronic monitoring in March 2018. By May 2018, after being on parole for approximately five months, the defendant was involved in a domestic dispute with his cousins. They were listed in his parole conditions as persons with whom he should not associate. For this incident, he received a warning from the Authority for breaching one of his parole conditions. Shortly after having received this warning, the defendant committed new offences by damaging his sister’s car. He engaged in other non-compliant behaviours including entering two exclusion zones on 3 June 2018 with no reasonable explanation and having used methamphetamine on the same day.

On 4 June 2018, the defendant was charged with a count of destroy or damage property (domestic violence), contrary to s 195(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act), after he caused damage to his sister’s car by repeatedly throwing an object against its window.

The facts of that incident were as follows. On 3 June 2018, his girlfriend at the time, Jennifer Hosn, had a verbal altercation with his sister, Amagene Azar, at the family home. Shortly after the argument, the defendant mistakenly approached another sister, Vanessa Azar’s car and threw an object towards the car window twice. This resulted in damage to the car window and rear view mirror.

The Breach of Parole Report, that was completed shortly after this offence, noted that the defendant demonstrated limited insight into his behaviour and projected blame on his family for having cooperated with law enforcement which resulted in his arrest.

On 14 June 2018, the defendant attended his uncle’s residence armed with a knife which he used to damage a screen door, causing his uncle to become fearful. Upon the arrival of police, he resisted arrest and attempted to assault five officers. He was charged with:

These offences were committed while the defendant was on bail for Destroy or Damage Property in relation to his sister’s car. The defendant was returned to custody upon arrest, bail refused. The Authority revoked his parole, effective from 14 June 2018 on the basis of his failure to maintain good behaviour.

During his interview with the author of the Risk Assessment Report (RAR), Ms Lau, the defendant described how he had experienced significant difficulty coping with stress from conflict between family members, particularly between his parents, leading up to these offences. He admitted that this contributed to his relapse to illicit substance use. He claimed that the knife he used to damage his uncle’s front door was obtained from the kitchen of his family home. The RAR noted that similar to his understanding of the manslaughter offence, the defendant denied any association between his mental health deterioration and these offences. The defendant’s refusal to accept that he has mental health issues which require treatment, has been a continuing problem.

On 13 December 2018, the defendant was sentenced for all of the above offences. He received a sentence of 1 year and 13 days commencing on 11 June 2018 and concluding on 23 June 2019. The non-parole period of 6 months and 13 days concluded on 23 December 2018. The Authority considered his case on 17 January 2019, and determined that the Revocation Order dated 14 June 2018 was to stand.

The Authority made a further determination on 1 May 2020 not to grant the defendant parole primarily on the basis that he had not completed the Violent Offenders Therapeutic Program (VOTP) while in custody. The Authority determined that until he completed the VOTP, his release would pose an unacceptable risk to the safety of the members of the community.

On 17 September 2020, the defendant was transferred to a correctional centre from Long Bay Hospital. On 21 October 2020, he was scheduled to the Long Bay Hospital for assessment and consideration of treatment with an injectable antipsychotic. A treating psychiatrist, Dr Morgans, reported:

An order was made for the transfer of the defendant to a mental health facility on 21 October 2020.

The defendant’s classification was changed from B Medium to A2 Maximum Security on 27 October 2020. On 11 November 2020, the Tribunal determined that the defendant should be transferred to a mental health facility. The order for the defendant’s transfer of 21 October 2020 was revoked on 27 November 2020. It was reported that the defendant was prepared to accept depot antipsychotic treatment. His mental state was stable at that time.

The defendant has a history of substance abuse and mental health issues. He began using illicit substances when aged 14 or 15, taking large quantities of cannabis on a daily basis, as well as smoking methamphetamine and taking Xanax. This appears to coincide with his self-report of when he first experienced hearing voices and when significant behavioural changes were observed in him by his family. He reported that these symptoms were disruptive to his daily functioning before the commission of the index offence. However, he was only diagnosed with a mental illness after he committed the index offence when he came into custody.

During his interview with the RAR writer, he denied any illicit drug use in custody. However, he had previously reported using cocaine while on remand. He had also previously admitted that while on parole for the index offence, he would use heroin/ice about once a month. He yielded positive results from three urinalysis testings during his current period of incarceration, with the most recent sample obtained in February 2020. It tested positive for methylamphetamine and buprenorphine.

The defendant was suffering from undiagnosed schizophrenia at the time of the index offence. He denied being in contact with mental health services before entering custody. Shortly before his incarceration on 4 April 2013, the defendant presented to the Emergency Department involuntarily under the Mental Health Act 2007 (NSW) for a self-inflicted injury.

In her psychiatric report, dated 23 June 2016, Dr Kerri Eagle set out collateral information from NSW Health clinical records which describe the circumstances that led to this incident:

Before the index offence, the defendant’s family reported that he had a paranoid belief that he was going to be killed and that his mother had a microphone connected to the car. In the days following the offence, he threatened to kill himself.

According to his history of mental health assessments in custody as summarised in Dr Stephen Allnutt’s report in October 2015, it appears that the defendant was difficult to engage with in his contacts with mental health professionals during the initial period of his incarceration. He reported different symptoms when he was assessed by different psychiatrists. It appears that this may have contributed to the different diagnoses which were made concerning his mental health problems.

The defendant was treated for psychosis in January 2014 during an admission to the Mental Health Screening Unit (MHSU). At this time, his symptoms were characterised by persecutory and religious delusions, auditory hallucinations, thought disorder and agitation. In February 2014, he made threats of self-harm and was placed on a RIT (a process of review by the corrective centre’s Risk Intervention Team). On 28 October 2015, the defendant was transferred to a mental health facility on the basis that he was a mentally ill person under s 55(3) of the MHFP Act. He was again observed to be experiencing persecutory delusions, and presented as guarded and agitated. On 12 November 2015, he was transferred to E Ward, which was the sub-acute unit of Long Bay Hospital.

Dr Sharma’s report of 14 March 2016, noted that the defendant’s symptoms and presentation had improved. By 24 March 2016, he was assessed as fit to be tried for his offence.

Soon after he was released on parole, Dr Anthony Harris began seeing the defendant through PEIRS. In a letter dated 6 March 2018, Dr Harris stated that the defendant had been offended in one of their sessions and had threatened both Dr Harris and his PEIRS case manager, Conrad Netto. He also reportedly made violent threats towards his family to deter his mental health supports from contacting them. In a separate report from Mr Netto in March 2018, it was noted that although the defendant was compliant with his depot treatment for schizophrenia, he was difficult to engage with in sessions and expressed a desire to cease his medication. The same report also commented that the defendant lacked insight into the importance of medication despite receiving psychoeducation. It was during this same period that his mental health supports received information to suggest that the defendant had become increasingly aggressive and threatening, especially toward his family.

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

The Offender Integrated Management System (OIMS) notes show that the defendant’s mental health had not remained stable during his time in custody. On 10 April 2019, his treating psychologist made an application for a Forensic Community Treatment Order (FCTO) under s 67 of the MHFP Act on the basis of the defendant’s history of medication non-adherence and a subsequent mental health decline. On 10 May 2019, a hearing was held before the Tribunal and a 12 month FCTO was made with an expiry date no later than 9 May 2020. It required the defendant to accept any treatment and/or medication prescribed by his treating psychiatrist.

On 30 August 2019, another order was made pursuant to s 55(1) of the MHFP Act that the defendant be transferred to a mental health facility as he was a mentally ill person as defined under s 55(3) of the MHFP Act. The defendant was put on a transfer list, but this order was revoked on 15 November 2019, with directions that he remain in a correctional centre.

Most recently, the defendant was made subject to another FCTO, made on 5 August 2020, for a period of 12 months to expire no later than 4 August 2021. This was after a deterioration in his mental state was observed. It was marked by non-compliance with his anti-psychotic medications, including refusing to take his depot medication and becoming non-compliant with psychiatric review. Psychiatrist, Dr Ma, noted that there had been threats of violence towards a psychiatrist and that the defendant presented with limited insight into his need for treatment and the relationship between his mental illness and violence. Dr Ma further noted that while the defendant was not acutely psychotic, his aggression could be considered a reflection of residual persecutory delusions. The defendant indicated that he had no intention of following up with mental health services upon release. Dr Ma was of the opinion that the defendant required involuntary treatment to reduce his risk of violence in custody.

The defendant was scheduled to Long Bay Hospital on 27 July 2020 for assessment and consideration of treatment with an injectable antipsychotic to ensure adherence. He was at that time awaiting a bed.

He was reviewed by psychiatrists on 4 August 2020, and stated that “I’m giving you a warning shot. If you send me to mental health, one of you f***ing mother-f***ers is gonna [sic] f***ing die”.

A notice to remain at Long Bay Hospital under s 56 of the MHFP Act was issued on 19 August 2020. At that time, Dr Sarah-Jane Spencer noted that the defendant had refused to comply with his FCTO. She was of the opinion that without adequate treatment, the defendant’s mental state would further deteriorate, elevating his risk of causing serious harm to others. Dr Spencer said:

The defendant was transferred to Long Bay Hospital on 19 August 2020.

Notes made by Dr Sharma and Dr Jackson on 19 August 2020, record that the defendant expressed anger at being transferred to Long Bay Hospital and did not understand the rationale for taking any medication as he believed himself to be well. He was prepared to take oral medication. He made several violent threats when advised he would be receiving depot medication, e.g., “I’ll punch on with any c**t that tries to give me an injection, I don’t care” and “I’ll kill you all”.

From the time that the defendant was first taken into custody on 19 August 2013 until he was released on parole on 1 December 2017, he was the subject of a number of institutional misconduct charges. He received four institutional misconduct notices for fighting or assaulting another person, all of which occurred between 2014 and 2016, and one institutional charge for intimidation. The RAR noted that the defendant was mentally unwell for most of his first incarceration period and only became relatively stable by 2016.

After returning to custody on 14 June 2018 to serve the balance of his parole, the defendant has incurred eight institutional misconduct charges involving failure to comply (both with directions and correctional centre routines), intimidation, possession of a weapon, violence and contraband related offences. He recorded a positive urine sample for buprenorphine on 13 February 2020. He had consistently been charged for unsatisfactory behaviour and has “continuously displayed a belligerent attitude toward Custodial Officers and the custodial environment”.

Before he was made subject to a FCTO, the defendant had followed a pattern of non-compliance regarding his monthly antipsychotic depot injection. Between January and April 2019, he refused his monthly injection and only attended the clinic the following day to receive his injection after persistence from medical staff.

The defendant has completed the EQUIPS Addiction program twice and EQUIPS Aggression once in custody. The defendant was reported as having developed some insight into his use of aggression in interpersonal interactions. Despite facilitators of EQUIPS Addiction noting that the defendant developed some self-management plans in respect of illicit drug use, which included maintaining employment and spending time with his family, approximately six months following his release on parole, the defendant had lapsed to methamphetamine use.

Until 13 June 2019, the defendant had refused to participate in VOTP stating that he would rather complete his sentence in custody. However, on 13 June 2019, he stated that he was prepared to participate in the VOTP if it benefited his release and on 1 August 2019 he was inducted into the program.

The RAR noted that the defendant was expected to complete the VOTP before his sentence expiry (i.e., sometime between November and December 2020), however, his expected treatment completion date might be extended due to poor behaviour on his part. The defendant was suspended due to ongoing aggression towards psychologists and Custodial Officers. According to the defendant’s VOTP Support Plan (04/02/2020), in addition to addressing his group attendance and participation, the plan was also developed to address his ongoing ambivalence about completing the program and his difficulties with managing feedback from his program facilitators.

The defendant advised that he was not interested in returning to complete the VOTP because of the close proximity to the expiry of his sentence. He stated that he saw no value in engaging in treatment as he is “going to do what I want and come back to gaol”.

The defendant’s classification has been “B Medium” since his revocation of parole and return to custody. Due to this classification, he has not participated in any pre-release leave programs. As earlier noted, the defendant’s classification was changed to A2 Maximum Security on 27 October 2020.

The RAR, dated 20 March 2020, was prepared in satisfaction of s 6(3)(b) of the Act, and assessed the defendant as falling in the high risk category for violent offending using the Violence Risk Scale (VRS).

The RAR identified the following dynamic factors as relevant to the defendant’s risk:

As to protective factors, the defendant described a number of pro-social supports in the community, which included his parents and his siblings. He stated that he had maintained regular contact with them via telephone while in custody and departmental records and collateral information from his sister confirmed the same. His sisters have secured independent accommodation and have offered to have the defendant stay with them in Wentworthville on the condition that he abides by a set of rules that are directed to reducing his risk of returning to an anti-social lifestyle. A OIMS case note, dated 28 February 2020, confirmed that his two sisters and his brother have offered to have the defendant live with them upon his release. The same case note also documented that his sister, Amagene Azar, confirmed that the defendant maintains a close relationship with his siblings and that they continue to have weekly phone contact with him. She expressed a willingness to work closely with Community Corrections to ensure that the defendant complies with his parole conditions, including ensuring that he appropriately manages his mental health and remains abstinent from illicit substance use.

There are currently ADVOs against the defendant for the protection of his ex-partner, Shontelle Condon, and his uncle, Sam Azar, the latter of whom was the victim of the defendant’s most recent violent offence in 2018 (OIMS case note, 31/01/2019). However, both of these current orders would have expired by the end of his current sentence in December 2020. There were previous ADVOs against the defendant to protect his father, and both of his sisters following some family disputes. These orders have since expired.

If approved by Community Corrections, the RAR writer is of the opinion that the defendant’s nominated post-release address with his sisters may be beneficial in mediating his risk of returning to a similar life as before his incarceration. Collateral information confirmed that the defendant’s sisters currently reside in an area that is some distance from where all three of his violence-related offences were committed and where he used to associate with anti-social peers.

The RAR identified the most likely risk scenario for further violent offending as follows:

If the defendant were to be subject to an ESO, Ms Lau opined that based on his lack of insight into his mental health, he may require a high level of external monitoring and encouragement to maintain ongoing management of his mental health in the community. His recent lapse to drug use in custody suggests that he may also require post-release support to address this risk area.

Overall, Ms Lau noted that based on the identified risk area specific to the defendant's violent offending, it is critical that any risk management include continued support in development of insight into and management of his mental illness, substance abuse, interpersonal aggression, and emotional control.

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].

The primary object of the Act is “to provide 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). Another object of the Act is “to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”: s 3(2). It follows that ESOs and CDOs are protective, not punitive: see, e.g., Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]. This protective purpose is “fundamental”: see e.g., Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21].

Section 5B of the Act provides that the Court can make an ESO in respect of an offender only if:

According to s 5D of the Act, the Court is not required to determine that the risk is more likely than not in order to determine that the person poses an unacceptable risk.

The defendant will only satisfy the first two requirements of s 5B if he is currently serving a sentence of imprisonment for a serious offence as defined by the Act. If so, then the defendant will be a supervised offender within the meaning of section 5I(2)(a)(i).

The third requirement will be satisfied if the application is made before the end of the defendant’s sentence of imprisonment on 18 December 2020.

The defendant is currently serving a sentence of imprisonment for a serious offence. A serious offence includes a serious violence offence (s 4 of the Act). Manslaughter is a serious violence offence (s 5A(2A)(b) of the Act). The defendant is therefore eligible for an application for an ESO.

In granting relief, the Court will need to be satisfied “to a high degree of probability” that the defendant poses an unacceptable risk of committing a serious offence unless an ESO is made.

The expression “high degree of probability” indicates something beyond “more probably than not”. The existence of the risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

The facts and circumstances must provide “a firm foundation, rather than a merely reasonable basis, for the conclusion that the risk posed by the offender is unacceptable absent supervision. Reasonable satisfaction is of itself insufficient” (State of New South Wales v Holschier (No 3) [2019] NSWSC 341 at [56]-[57]).

While the Court must be satisfied to a high degree of probability that there is an unacceptable risk, that does not require the Court to conclude that the offender is more likely than not to commit a serious offence: s 5D of the Act. The Court may well conclude that an unacceptable risk is a lower probability, provided the level of the Court’s satisfaction about that risk meets the requirement of a “high degree of probability”. The Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious offence, but, rather, that he or she poses an “unacceptable risk” of committing a serious offence: State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [21]; The State of NSW v Sharpe [2017] NSWSC 469 at [52].

As to the meaning of the phrase “an unacceptable risk”, the case law establishes the following:

The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise. As Wilson J put it succinctly in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71], “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate”: embraced, inter alia, in State of New South Wales v Wilson (Preliminary) at [128] per N Adams J and in State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971 at [19] per Walton J.

The Court’s role at a preliminary hearing is similar to that governing the Court's power to make interim orders: Attorney General for the State of NSW v Hayter [2007] NSWSC 983 at [6]. The test as to whether the supporting documentation “if proved” would justify the ESO is “similar to the requirement for a prima facie case to be made out in committal proceedings”: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. The Court does not weigh the documentation or predict the ultimate result.

The Court must have regard to the matters set out in s 9(3) of the Act in performing its task at the preliminary hearing: see, e.g. Attorney General for New South Wales v Tillman. In dealing with interim orders, the Court should give weight to the avoidance of risk: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

The Court’s task at a preliminary hearing was succinctly put by R A Hulme J in State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 where his Honour said:

Applying those principles and taking the plaintiff’s case at its highest, the defendant continues to demonstrate poor insight into his mental illness (schizophrenia). Compliance with medication is erratic and in breach of his FCTO, thus necessitating numerous transfers to the mental health facility. Despite some evidence of recent stabilisation of mental state and compliance with depot antipsychotic medication, there is a real risk the defendant will not comply with treatment in the future and will relapse. Decline in his mental state corresponds with episodes of increased agitation and threats of violence. As recently as October 2020 he was assessed as presenting a significant risk to others if he remained untreated.

As already noted, Dr Morgans opined in his letter of 20 October 2020 that the defendant had a history of non-adherence to treatment and there was evidence of a deterioration in mental state. In his examination on 20 October 2020, Dr Morgans reported that the defendant would accept an oral medication but refused to accept an injectable form of antipsychotic medication. There was an elevated risk of future violence. The Tribunal determination noted that as at 11 November 2020 the defendant was well because he was taking Paliperidone tablets under supervision.

When deciding whether in its discretion to grant an ESO, the Court has to have regard to the matters set out in s 9(2)-(3). Section 9(2) concerns the safety of the community. Provided the threshold requirement of unacceptable risk is satisfied, this consideration will usually militate in favour of the making an ESO. The protection of the community is a primary object of the Act and is expressly stated to be the paramount consideration.

Reports pursuant to s 7(4) of the Act have not yet been obtained. However, the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner are relevant (s 9(3)(c)).

The RAR has already been referred to and supports the making of an ISO under the Act. The report does posit the possibility that the defendant could remain offence free if not kept under supervision. However, it concluded that although the defendant’s family appears to be able to provide him with adequate support to assist with his integration, given his limited insight into his violence and his poor understanding of his mental illness, there is a real possibility or even likelihood that he might become non-compliant with his medication and relapse to drug use. This might lead him to become aggressive towards his family, which would also impact on their ability and willingness to provide ongoing support for him. There is a real possibility that future violence could also approach the threshold of a “serious violence offence”.

Section 9(3)(d) refers to the results of any statistical or other assessment. The RAR includes the results of a number of actuarial instruments. The defendant was assessed as follows:

The RAR author noted that whether the defendant is one of the 39.5 per cent who re-offend or the 60.5 per cent who do not re-offend violently, is contingent upon his ability to manage his risk factors in the community.

A Risk Management Report (RMR) dated 13 May 2020 was prepared by Alexandra Crichton, Community Corrections Officer in the ESO Team. It set out a risk management strategy, including limitations on that strategy in particular respects. The RMR indicated that the defendant could be reasonably and practicably managed in the community. There were, however, some limitations, the most notable of which were:

As noted above, the defendant has completed a number of programs but notably has not completed the VOTP, nor is he willing to complete it despite being told of the benefits of completing treatment.

Consistent with the opinion expressed in the RAR, it is critical that any risk management in the community include continued support in development of insight into and management of the defendant’s mental illness, substance abuse, interpersonal aggression and emotional control. This requirement is even more important now since his most recent mental health decline necessitating a further FCTO.

The RMR outlined a number of options available that might reduce the likelihood of the defendant re-offending over time if he is in the community. Notably these include:

It is important to note that the defendant’s ability to enrol in VOTP Maintenance is contingent on him completing the VOTP in its entirety while in custody. Because he is unwilling to complete the program, he will not be eligible to participate in the maintenance program. He will, however, have access to other referral services as detailed above.

The defendant’s compliance with his medication regime in the community is a factor that goes to his likelihood of re-offending over time. He is presently on a FCTO. There is a mechanism by which a FCTO can be converted into a CTO in the community. The RMR noted that enquiries are being made by Community Corrections about the suitability for a CTO to ensure better compliance by the defendant with his medication regime.

What is significant in this case, and that which distinguishes it from the recent case of State of NSW v Love [2020] NSWSC 165 is that the State is not seeking a mechanism for coercive mental health treatment to manage the defendant’s risk which arises from his schizophrenia, but rather an order for the supervision of the offender to manage the unacceptable risk of him committing a serious violence offence brought about by a return to problematic drug use (he has admitted to hearing voices after using drugs like cannabis or ice).

What needs to be managed are: problematic associations; limited insight into his mental health and need for medication once released (both factors having contributed to his most recent placement on a FCTO); aggression (he has experienced swift changes in mood); and an overall lack of living a pro-social lifestyle (he has been noted by his Community Corrections officer as rarely expressing remorse for his offence).

The defendant’s past conduct indicates there is a prospect of him not complying with the obligations of an ESO. His overall response to supervision is considered poor. As noted in the RAR, however, based on his lack of insight into his mental health, the defendant may require a high level of external monitoring and encouragement to maintain ongoing management of his mental health in the community.

The defendant has demonstrated a period on parole in which his initial response was positive. It appears on the evidence that he subsequently became somewhat overwhelmed by his parole obligations and within months was displaying non-compliant behaviour.

The RAR notes that although the defendant has a relatively limited history of violence related offences, he has spent most of his adult life in custody following his conviction for manslaughter which he committed when he was aged 18. Although his offending was spontaneous, it was committed in the context of an emotional reaction, and involved inflicting a severe level of violence against the victim in the company of a co-offender including the use of a number of impromptu weapons. His mental health at the time of the offence and the effects of illicit substances were also relevant to his offending.

The use and possession of weapons has been a feature in the defendant’s criminal history. The defendant’s most relevant criminogenic needs include poor insight into his mental health and need for medication, general violence, substance abuse, interpersonal aggression, lack of emotional control, poor self-control, and poor compliance with supervision.

All these factors support the making of an order.

The evidence supports a conclusion, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious violence offence if released to the community without any supervision or the support that would accompany supervision. However, if the defendant returns to live with his family unsupervised, while the family is in some respects protective, there is evidence of family tensions arising, in particular as between the defendant and his siblings over the relationships that the defendant chose to pursue. This has previously been a destabilising factor for the defendant and led to stress, illicit drug use, moving out of the family home and ultimately re-offending. There is also evidence that the defendant continues to harbour significant resentment towards his mother and sisters for providing statements to police about his offending.

The most recent deterioration in the defendant's mental health has demonstrated, according to psychiatric opinion, that he has no insight into his mental illness and the need for treatment. His compliance with medication and continued education concerning his mental illness will be a critical component in ameliorating his risk of committing another serious violence offence. The recency of the defendant’s mental health decline and evidence of non-compliance with the FCTO, is a further compelling reason for the making of an ISO for the protection and safety of the community.

For the reasons set out above, the evidence before the Court, if accepted at a final hearing, would warrant the Court exercising its discretion in favour of making an ESO.

Moreover, the material before the Court does not permit a conclusion that a CTO will adequately alleviate the risk posed by the defendant. As Justice Walton observed in State of New South Wales v Love (Preliminary) [2019] NSWSC 1660:

It should also be noted that if 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 experts to conduct separate psychiatric or psychological examinations and direct the defendant to attend those examinations.

Being so satisfied as I am, the Court has no discretion as to the making of the orders for the appointment of the examinations. Those orders must be made (State of NSW v Vincent (Preliminary) [2020] NSWSC 1269 at [106]-[107]). The Court will then be best placed to assess the defendant’s risk upon receipt of those expert opinions.

Presently the RAR has opined that because of the defendant’s lack of insight into his mental health, despite having received psychoeducation and ongoing support in custody and in the community, he may require a high level of external monitoring and encouragement to maintain ongoing management of his mental health in the community. His recent lapse into drug use in custody suggests that he may also require post-release support to address this risk area. An ESO is a mechanism through which these needs can be met.

The defendant has submitted that by seeking an ISO the State is in effect seeking a mechanism for coercive mental health treatment to manage the defendant’s risk arising from his schizophrenia. That does not necessarily follow. The position of the State is that risk avoidance is the focus of the inquiry at the preliminary stage. Risk avoidance is the basis upon which the State seeks an ISO in this preliminary hearing.

An ISO has the effect that the defendant will have access to the ESO Team within Community Corrections which can provide intensive supervision and monitoring of persons the subject of ESOs and operates seven days per week. An ISO has the capacity to manage the defendant’s risk and criminogenic needs through face to face interviews, field visits, monitoring of associations, guidance and direction with respect to referrals to psychological and drug and alcohol services and alcohol and drug testing. The ISO will work in tandem with any CTO, particularly during the defendant’s transition into the community after his release from custody. The ISO will also act as a support for whomever the defendant lives with. As the RAR author said, the management of risk usually involves a defendant improving his or her level of functioning in dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. The aim of an ESO in the defendant’s case is to encourage the development and maintenance of a stable and sustainable lifestyle that will endure beyond the cessation of supervision.

In State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 Walton J summarised the law on imposing conditions under the Act:

The defendant objected to Conditions 5, 6 and 7 binding him as part of the ISO. The content of those conditions is:

The defendant submitted that this was a draconian measure accompanied by a high risk that he would become overwhelmed or inadvertently breach a requirement of the conditions which was not directed to a risk of him committing a spontaneous act of violence following a deterioration in his mental health nor does it facilitate his rehabilitation.

The plaintiff submitted that these conditions were necessary to ensure proper supervision and a structure to assist the defendant with forming prosocial activities and a routine. This would include attendance on necessary mental health practitioners upon release. The plaintiff submitted that the defendant needed a structure for his daily activities, particularly given his poor response to supervision in the past. The plaintiff submitted that such a schedule would allow a step down process to be implemented and provide closer monitoring of the defendant’s movements and activities.

I am of the opinion that Conditions 5, 6 and 7 should be imposed on the defendant at this early stage. Except for the period when he was at liberty on parole (a period of just over six months) the defendant has spent the last six and a half years in prison. It is important that he have a regular structured program to follow when he is again released to parole on this next occasion. This will reduce the chance of him being “overwhelmed” by conflicting responsibilities and requirements as appears to have happened when he was last at liberty. Once he has settled into a regular routine, consideration can be given to relaxing these conditions.

The defendant objected to Conditions 8-13. Those conditions are:

The defendant submitted that he wished to live with his father to provide him with support as his father currently lives alone. The defendant submitted that his proposed amendments facilitate this, with alternative pre-approved addresses for other family members. The defendant submitted that Condition 10 was inapplicable and should be deleted. Amendments to Condition 13 were proposed to reflect the fact that the defendant might not be able to control visitors to his home given that he will be cohabiting with others.

The amended form of Conditions 8 to 13 as proposed by the defendant are:

The effect of the amendments proposed by the defendant is that the defendant would comply with Conditions 9, 11 and 12 with Conditions 8 and 13 amended and Condition 10 deleted.

The State submitted that Conditions 8, 9, 10, 11 and 12 as per the Summons should be imposed. The State submitted that it was premature to include particular addresses at this stage. Pre-approval might occur by the DSO but not by the hearing date and will involve extensive assessment of the address in accordance with established CSNSW protocols to ensure it is the most suitable type of accommodation.

The State submitted that Condition 10 should remain so that if family based accommodation was not successful, or the defendant needed respite accommodation, such as from the Community Offender Support Program (COSP), this condition would be necessary. The State submitted that in that eventuality, the defendant would still need to comply with the by-laws of the accommodation.

The State submitted that Condition 13 could be amended for further clarification with the following additional wording:

I have concluded that the conditions put forward by the State relating to accommodation should be imposed, including the modified Condition 13. I have reached this conclusion on the basis that a simple regime needs to be in place to deal with the defendant’s accommodation which can be modified as required in consultation with the DSO. Once a set routine has been established, modifications can be made by application to the DSO.

Conditions 14 and 15 proposed by the State were as follows:

The defendant consented to Condition 14, but opposed Condition 15. The defendant submitted that Condition 15 was opposed because it was over expansive and was not directed either at the defendant’s risk of committing a spontaneous act of violence following a deterioration in his mental health or to facilitating his rehabilitation.

The State supported the need for Condition 15 in that given the likelihood of risks relating to antisocial peers, having location restrictions would be important to minimise the defendant’s potential contact with such persons by frequenting locations which they would normally gather. The State did agree to remove the word “district” from Condition 15.

I agree with the submission by the defendant. Condition 15 should not be imposed. Its content is largely included in Conditions 5-7.

The State proposed the following Conditions 16-20:

The defendant opposed Conditions 16-20 on the basis that they bore no relationship to his identified risk factors and were not rehabilitative. This was because they took no account of his cognitive impairment and severe mental illness which might restrict his ability to engage in employment or related programs. The defendant submitted that the objectives to which Conditions 19 and 20 were directed were not apparent.

The State agreed to remove Conditions 16, 18 and 20. The State pressed Condition 17 on the basis that the defendant had stated that he was motivated to gain employment after release and that this needed to be monitored for potential antisocial associates.

The State pressed Condition 19 on the basis that the monitoring of finances was important to assess whether the defendant was using money received by him to purchase drugs or was engaged in stealing or dealing with drugs.

I have concluded that Conditions 17 and 19 are reasonable, given the defendant’s previous offending and that they should be included in the ISO.

The State proposed the following Conditions 21-25:

The defendant opposed Conditions 22 and 24 and proposed an alternative wording for Condition 25 (removing references to alcohol). This was on the basis that the defendant did not have any history of alcohol abuse warranting restrictions on his ability to consume alcohol. The defendant noted that Condition 22(b) replicated Condition 21.

The State pressed Conditions 21, 22, 23, 24 and 25. It did so on the basis that the defendant was intoxicated throughout the index offence, although it is not clear whether this was due to alcohol or drugs or both. In any event, there was a reference in the material before the Court to the defendant binge drinking from which one can infer a problem with alcohol. The State submitted that the DSO needed to monitor the impact of any substance including alcohol on the defendant’s mental health and medication and that this might require directions concerning alcohol limits. The State noted that the DSO could still provide approval for alcohol consumption in appropriate circumstances (as is often done). For example, if deemed appropriate, the DSO could allow the defendant to have two alcoholic drinks on Christmas Day if in the company of his parents.

I propose to include Conditions 21, 22, 23, 24 and 25 in the ISO except that Condition 22(b) will be deleted as it replicates the content of Condition 21. The consumption of alcohol and drugs has been a problem for the defendant in the past. Condition 24 allows the DSO to monitor antisocial associates as the defendant has a history of associating with such persons. There is provision for the DSO to give approval to consume alcohol on appropriate occasions.

The State proposed Conditions 26-29 which were as follows:

The defendant opposed Conditions 26-29. Condition 26 was opposed on the basis that it was unconstrained and over-broad. The defendant submitted that Condition 27 exposed him to a risk of inadvertent breach through associations (including with family members) which he could not reasonably avoid. The defendant opposed restrictions on his association with others consuming alcohol.

The State pressed Conditions 26-29. These conditions operate to allow monitoring of the defendant’s potential antisocial relationships which had been a problem for him in the past.

The restrictions imposed by Conditions 26-29 are reasonable and have appropriate regard for the difficulties confronted by the defendant when he was previously released on parole. These conditions should be included in the ISO.

The State proposed the following conditions:

The defendant opposed Conditions 30 and 31 on the basis that while it was recognised that some of his violent offending involved the spontaneous use of weapons, those conditions are ambiguous and uncertain and when one has regard to his mental impairments, the defendant could not reasonably comply with them.

The State pressed for the imposition of these conditions on the basis that the defendant had a history of weapons use, particularly ad hoc weapons. Given the threats made by the defendant to medical specialists seeking to provide assistance to him and his use of ad hoc weapons in the past, the State pressed for their inclusion because there was a real risk of violent offending if the defendant was given access to such weapons.

I agree that those conditions are reasonable given the defendant’s background and given the episodes of anger displayed by him in the past and the threats made by him. These conditions should be included in the ISO.

The State sought the imposition of Conditions 32-42:

The defendant opposed any of Conditions 32-42 being imposed on him on the basis that they bore no rational relationship to his risk of committing a further serious offences or on his rehabilitation.

The State pressed for all of Conditions 32-42 as set out in the Summons. This was on the basis that these conditions operated as a suite of conditions that need to be considered together and were connected with each other. The removal of one or two of them would impact on the DSO’s ability to properly monitor online communications engaged in by the defendant. For example, Condition 34 would prevent the defendant from borrowing his parents’ or sisters’ device to avoid detection of his internet usage.

The State submitted that these conditions would provide a considerable insight for a DSO into the defendant’s mental health stability and the effectiveness of mental health medication as well as monitoring anti-social peer interaction with others by way of computers.

Such precautions as are set out in Conditions 32-42 are usually appropriate for persons who are using the internet to prey upon other users, particularly where sexual elements are involved. However, I can also see how access to this information would be most important for a DSO in order to assess and have insight into potential dangers arising from the mental health problems experienced by the defendant. It is also not without significance that following the index offence, the defendant went online to acknowledge what he had done and to seek praise and approval for it. I consider these conditions to be reasonable.

The State sought to impose these conditions:

The defendant proposed an alternative search condition to what was described as “the unconstrained” condition sought by the State. This would make a search conditional upon the formation of a reasonable opinion by the DSO that a search was necessary for a specified purpose.

Condition 43 as proposed by the defendant was:

The defendant agreed to Condition 44.

The State suggested an alternative to the original Condition 43 in the following terms:

A condition of this kind needs to be part of the conditions included in the ISO. I note, however, that the condition now suggested by the State overcomes a number of the objections identified by the defendant. Accordingly, I propose to include in the Conditions the modified Condition 43 proposed by the State.

The plaintiff sought to impose conditions as follows:

The defendant opposed Condition 46 which he submitted was redundant given the terms of Condition 47. The defendant submitted that Condition 46 did not bear any relationship to his identification risk nor to his rehabilitation. The defendant did not oppose the other conditions.

The plaintiff pressed for the inclusion of Condition 46.

I am of the opinion that Condition 46 adds little to what is contained in Condition 47. It follows that Condition 46 will not be included in the conditions attached to the ISO.

The State put forward Conditions 49-56 as follows:

The defendant opposed these conditions. He submitted that he was subject to a FCTO and would be subject to a CTO upon his release. He submitted that his treatment would be appropriately managed under that regime and not under a regime where his lack of insight into his medical condition exposed him to criminal penalties, including the risk of imprisonment.

The defendant proposed a single alternative condition to facilitate the communication of information by his health care practitioners to his DSO where necessary as follows:

The plaintiff pressed for Conditions 49-56 as set out above.

The plaintiff submitted that information sharing regarding the defendant’s progress and participation in the community was important in addressing his mental health and wellbeing but also his risk factors. The plaintiff submitted that the disclosing and sharing of information with the defendant’s treatment providers was also important for their own decision making regarding the defendant’s personal safety and the safety of other clients.

The plaintiff submitted that if the defendant was on a CTO when released and that CTO lapsed or was not renewed, it was essential for his proper management that there were in place conditions providing for the continuation of his medication.

I have concluded that there is a need for more comprehensive conditions as to the sharing of information concerning the defendant’s health and in particular, his mental health condition beyond that which the defendant has put forward in his alternative condition. Accordingly, the conditions proposed by the plaintiff should be imposed.

As has been set out in this judgment, a major problem for the defendant which medical and other experts have identified is his lack of insight into the nature of the condition from which he suffers (schizophrenia) and his failure to appreciate that the taking of prescribed medication is essential for his wellbeing and for him to be able to safely function in the community.

Given his history, and in particular the circumstances surrounding the index offence, the safety of the community has to be given priority over any concerns he or his legal advisors might have as to the dissemination of private health information. In such a context, it is important that all of his treating specialists should be aware in a timely fashion of his symptoms so that if and when necessary prompt intervention can occur, both for the benefit of the defendant but also for the community.

It follows that I make the following orders: