State of New South Wales v Colb (Final)

1. [1]

   By Amended Summons, the plaintiff State of New South Wales sought final orders for an Extended Supervision Order (ESO) against the defendant, Grant Colb pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (the HRO Act) for a period of three years, and for an order pursuant to s 11 of the HRO Act that Mr Colb comply with conditions as set out in the Schedule to the Amended Summons.

2. [2]

   On 28 April 2023, I conducted a preliminary hearing in this matter pursuant to s 7(3) of the HRO Act and made orders on that day imposing an ISO with conditions: see State of New South Wales v Colb (Preliminary) [2023] NSWSC 471 (the preliminary judgment). On 26 June 2023, Yehia J renewed the ISO for a further 28 days commencing 1 July 2023. Mr Colb has been in custody since 6 July 2023 for allegedly breaching the conditions of the ISO.

3. [3]

   On 15 August 2023, there was a final hearing after which I made the final orders sought in the Amended Summons. In the end, the only dispute was as to the drafting of the conditions requiring the defendant to submit and adhere to a schedule of movements about which the parties eventually agreed. I am grateful to both Ms Heath who appeared on behalf of the State, and Mr Bhutani on behalf of Mr Colb for the collaborative manner in which they approached these proceedings.

Orders sought

1. [4]

   The plaintiff sought the following final orders:

2. [5]

   The defendant neither consented to nor opposed the making of an ESO and made no submissions as to its proposed duration. The defendant only took issue with the conditions with respect to scheduling.

Background

1. [6]

   The background to this application is set out in the preliminary judgment, which I will not repeat. The index offending was a murder committed on 12 May 2005. That offence was committed after Mr Colb was released on a suspended sentence for an offence of inflicting grievous bodily harm on 13 April 2005. On 11 August 2006, Mr Colb was sentenced to a head sentence of 18 years imprisonment, which expired on 19 May 2023. A non-parole period of 14 years was imposed. Between July 2022 and March 2023, there were three revocations of his parole for various breaches of conditions.

2. [7]

   After I imposed the ISO, on 16 June 2023, Mr Colb was arrested and charged with two failures to comply with the conditions of his ISO pursuant to section 12 of the HRO Act. He remained in custody until his release on 21 June 2023, when he was sentenced to a Community Corrections Order by the Local Court. On 6 July 2023 Mr Colb was again arrested, this time for three failures to comply with the conditions of his ISO. At the date of the final hearing on 15 August 2023, Mr Colb was bail refused for those matters and remained in custody. They are next listed before the Local Court on 17 August 2023 for mention. I observe that on 15 August 2023, after I made the orders sought by the State, I heard Mr Colb’s release application. I granted him bail on the condition that he comply with the conditions of the ESO that I had imposed.

Evidence

1. [8]

   Much of the evidence before me was tendered in the preliminary hearing. The most significant new material were the reports of the two court appointed experts and selected notes from the Offender Integrated Management System (OIMS) (to which see below).

2. [9]

   Four exhibits were tendered and marked as follows:-

   1. (1)

      A volume containing court documents, a report of Dr Sathish Dayalan, forensic psychiatrist, dated 14 July 2023, two reports of Dr Sally McSwiggan, consultant neuropsychologist, dated 14 July 2023 and 24 July 2023, affidavits of James Palmer affirmed on 2 March 2023, 26 April 2023 and 21 July 2023, an affidavit of Erin Kirkwood affirmed on 9 August 2023, an affidavit of Sarah Salman sworn on 20 April 2023, OIMS notes from 9 and 10 June 2023 and 19 and 20 July 2023 and the parties’ submissions;

   2. (2)

      Exhibit JP-1 to Mr Palmer’s affidavit of 2 March 2023 (which was before the court at the preliminary hearing);

   3. (3)

      Exhibit JP-2 to Mr Palmer’s affidavit of 21 July 2023, containing inter alia, a bail report dated 6 July 2023, material concerning Mr Colb’s 2023 criminal convictions and outstanding charges, OIMS notes from 31 May 2023 to 12 July 2023, parole documents and a letter from the National Disability Insurance Agency (NDIA) to Mr Colb dated 16 May 2023; and

   4. (4)

      OIMS notes from 3 and 4 July 2023

Legislative framework

1. [10]

   The following sections of the HRO Act have relevance.

2. [11]

   Section 3 of the HRO Act sets out its objects:-

3. [12]

   Section 5A of the HRO Act defines “serious violence offence” which is relevant to this matter:-

4. [13]

   Section 5B sets out four pre-requisites for the making of an ESO. I note that the parties do not dispute that the requirements of each of subsections (a)–(c) are met in this case, and I observe that I am independently satisfied. Section 5B provides:-

5. [14]

   Mr Colb is an “offender who has served a sentence of imprisonment for a serious offence in custody” (s 5B(a)), as he is over 18 years of age (being 46 years old) satisfying s 4A(a), and he has been sentenced to imprisonment to be served by way of full-time detention following his conviction for murder in 2005, satisfying s 4A(b). Further, Mr Colb is a “supervised offender” within the meaning of s 5I, satisfying s5B(b), as he was an offender when the application for the order was made, and was under supervision by way of an ISO (s 5I(2)(b)), and the application for the order is made in accordance with s 5I satisfying s 5B(c).

6. [15]

   Section 5B(d) is the key provision with respect to the making of an ESO. I must be satisfied to a “high degree of probability” that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of such an order. In determining whether the defendant poses an unacceptable risk, the court must have regard to the matters in s 9(3)(a) – (i).

7. [16]

   The words “to a high degree of probability” indicate a higher standard of proof than the civil standard of the balance of probabilities but does not rise to the criminal standard of beyond reasonable doubt. In Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal (Mason P, Giles and Hodgson JJA) said:-

8. [17]

   Ms Heath submitted that I would be satisfied to a high degree of probability that Mr Colb poses an unacceptable risk of committing another serious offence if not kept under a supervision order having regard to the various matters set out in s 9(3)(a)-(i). Mr Bhutani made no submissions about whether or not s 5B(d) is satisfied. I indicate that I am satisfied that the making of an ESO is necessary, the reasons for which will become apparent after a review of the evidence against the criteria in s 9(3).

9. [18]

   Section 9(2) of the HRO Act provides that, in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration.” This is consistent with the primary object of the HRO Act as set out in s 3(1). I am satisfied that the safety of the community will be best served if I make the ESO.

10. [19]

    Section 9(3) sets out the matters to which the Court must have regard in its determination as to whether or not an ESO should be imposed:-

11. [20]

    Section 10 provides for the term of an ESO:-

12. [21]

    As to conditions that may be imposed when making an ESO, s 11 provides:-

13. [22]

    In State of NSW v Wilkinson (preliminary) [2020] NSWSC 1813 at [43] - [44], Hoeben CJ at CL said the following about the imposition of conditions:

Section 9(3) factors

1. [23]

   Much of the material relevant to the s 9(3) factors is set out in the preliminary judgment at paras [30] – [53], which I do not repeat. Of particular significance are the Risk Assessment Report prepared by Ms Patrycja Luketic, senior psychologist at the Serious Offenders Assessment Unit dated 4 October 2022 which details Mr Colb’s dynamic risk factors, and the Risk Management Report prepared by Ashley Newby, Community Corrections Officer, Extended Supervision Team dated 22 November 2022 which recommended risk management measures. I have taken that material into account in the present application. I turn to the fresh material that has been provided since the preliminary hearing.

2. [24]

   Dr Satish Dayalan, forensic psychiatrist, reported on 14 July 2023. He conducted an in-person psychiatric assessment of Mr Colb on 30 June 2023.

3. [25]

   Mr Colb reported a history of childhood trauma which was largely consistent with his background set out in the material tendered at the preliminary hearing. Mr Colb reported that his mother once tried to drown him in a bath. When he was four years old, his father made him smoke a cigarette and there was an occasion where he was left on his own on a street next to a railway at night. He said that he had a close relationship with his grandmother but was subject to significant abuse by his grandfather.

4. [26]

   Mr Colb told Dr Dayalan that he experiences nightmares and flashbacks that cause a “shut down” response. He said that this occurs once a month and is triggered by reminders such as smells and certain television programs.

5. [27]

   Dr Dayalan noted that Mr Colb was taking Doxepin at the time of the assessment, as well as methadone. He denied the use of illicit drugs other than cannabis which he was using every 2-3 days. He spoke positively about his psychologist and expressed an eagerness to attend residential rehabilitation for an 18-month program. Dr Dayalan observed that Mr Colb had ongoing persecutory beliefs such as a concern about being assaulted by former inmates. Mr Colb’s mood was euthymic and there was no evidence of psychotic features.

6. [28]

   When discussing his violent offending, Mr Colb reported that some of his family were part of an outlawed motorcycle gang. Some of his past offending involved attempts to rob people to meet his basic needs when he was homeless. As to the index offending, Mr Colb told Dr Dayalan that he had used crystal methamphetamine and cannabis at the time of the offence and lost control of his actions. He said that he had fallen asleep after the victim gave him food and he woke up to the victim performing oral sex on him. He believes that the victim breached his trust which contributed to his reaction to kill the victim. He believed that his background of past abuse contributed to his aggressive reaction.

7. [29]

   Dr Dayalan asked the defendant about the breaches of his ISO. The defendant explained that he had a strained relationship with his former DSO. He also complained about his initial residential placement as he believed that it had exposed him to drug users. He admitted to using crystal methamphetamine and cannabis in the community. He denied making weapons. He said that he had difficulty complying with the schedule of movements. Mr Colb told Dr Dayalan that he would like to seek employment, avoid antisocial peers and illicit substances, commence a relationship and start a family, all of which he believed would decrease his risk of re-offending. He would also like to join a men’s shed and participate in outdoor recreational activities. Dr Dayalan noted that Mr Colb had some unrealistic ideas, such as building a spacecraft.

8. [30]

   In Dr Dayalan’s opinion, Mr Colb meets the criteria for diagnoses of complex post-traumatic stress disorder, antisocial personality disorder, borderline personality disorder and substance use disorder – cannabis, opiates and stimulants. Dr Dayalan considered that the documents with which he was provided did not indicate that Mr Colb had an acquired brain injury. He was of the view that the documents suggested improvement in Mr Colb’s presentation over the last few years. Whilst he was unable to confirm an acquired brain injury, Dr Dayalan recommended that Mr Colb undergo neuropsychometric assessment. In his opinion, it very likely that Mr Colb has executive functioning deficits which impact his ability to plan and organise.

9. [31]

   Dr Dayalan observed that there are limitations to the prediction of risk, and that risk assessment instruments are best utilised as a guide to forming a professional opinion on the risk posed by an individual and for formulating a management plan for risks that are identified. Dr Dayalan used the Historical Clinical and Risk Management – 20 Version 3 tool. He identified a high loading of historical risk factors including problems with violence, problems with other anti-social behaviour, problems with relationships, employment problems, substance abuse disorder, personality disorders and adverse childhood experiences. He was of the opinion that Mr Colb had limited insight into his mental health, violence risk and substance abuse, all of which will pose challenges to professional services and planning. He continued to pose a risk of emotional and behavioural dysregulation in the context of stress.

10. [32]

    Dr Dayalan used the Violence Risk Appraisal Guide – Revised Version (VRAG-R), which is an actuarial tool placing individuals in risk categories. Mr Colb placed in the high risk category for future violent behaviour.

11. [33]

    In Dr Dayalan’s opinion, Mr Colb is at risk of committing a further serious offence, and in particular a serious violent offence, particularly in the context of using substances, interpersonal conflict, unstable living circumstances, deterioration in mental health and disengagement from treatment. Therapeutic interventions, psychosocial support and supervision in the community, in Dr Dayalan’s view, will assist in the management of dynamic risk factors.

12. [34]

    Dr Dayalan believes that an ESO of three years duration is appropriate to address some of Mr Colb’s dynamic risk factors and which would allow for a graded reduction in the conditions of the ESO. In his view, it is likely that Mr Colb will have difficulties complying with a schedule of movements.

13. [35]

    Dr McSwiggan, consultant neuropsychologist, reported on 14 July 2023 and 24 July 2023. She assessed Mr Colb in person for 80 minutes on 26 June 2023.

14. [36]

    At the time of the assessment, Mr Colb was living in Community Offender Support Program (COSP) accommodation and was receiving the disability support pension. He was aware of the application for an ESO. He told Dr McSwiggan that he was recently in custody for breaches of the ISO because he had deviated from his schedule, including on one occasion which involved stopping for food. He told Dr McSwiggan that he hoped to leave his COSP accommodation and enter a residential drug rehabilitation programme. He denied current illicit substance abuse, but said that he “needed to address it” as he had never received drug rehabilitation treatment.

15. [37]

    Mr Colb reported a history, including his childhood experience and his psychiatric and medical history, all of which was consistent with that reported to Dr Dayalan and the material tendered at the preliminary hearing.

16. [38]

    Dr McSwiggan noted that Mr Colb appeared to make an effort to cooperate during the assessment. His speech rate was normal and he followed the rules of conversation. He was emotionally regulated with full affect. Mr Colb did not demonstrate illogical (psychotic) thought processes or symptoms of a major psychotic illness or mood disorder, although he came across as mildly juvenile and asked odd questions at times, which Dr McSwiggan attributed to his institutionalisation. Dr McSwiggan observed that this was inconsistent with his intellect. She believed that Mr Colb had some insight into his current circumstances but that he lacked goal direction.

17. [39]

    Dr McSwiggan administered several neuropsychological tests. Mr Colb appeared to understand their purpose and Dr McSwiggan believed that he was engaged and that he participated with effort.

18. [40]

    In Dr McSwiggan’s opinion, the test results indicate that Mr Colb operates in the normal range of cognitive functioning. Both premorbid and current cognitive functioning were estimated to be in the low average range. There was no indication of lasting brain injury or other neuropsychological disorder. His spelling was to a high school year 8 level and his reading was consistent with a year 9 level.

19. [41]

    In Dr McSwiggan’s view, Mr Colb meets the criteria for a diagnosis of severe substance use disorder which commenced in early adolescence and has been in remission in a controlled environment. Dr McSwiggan observed that Mr Colb’s background suggests that he has developed psychological vulnerabilities and maladaptive personality traits. Declines in his mental health is likely attributable to periods of substance abuse.

20. [42]

    In Dr McSwiggan’s opinion, Mr Colb requires stable accommodation, ongoing case management and psychological intervention. In her view, Mr Colb’s most prominent risk factor is his substance use disorder and the associated risks that come from both obtaining and using illicit substances. She supported a residential treatment programme as a means of managing that risk. Dr McSwiggan believed that Mr Colb’s risk of committing a serious violent offence could not be reliably predicted. However, using the VRAG-R tool, she notes that Mr Colb’s score – risk level 8 out of 9 – put him in a range which where recidivism is 2.3 times greater than those scoring in the mid-range.

21. [43]

    With respect to the proposal for scheduling conditions, Dr McSwiggan noted that they are onerous and restrictive requirements with which Mr Colb would have difficulty complying.

22. [44]

    The OIMS notes that have been exhibited and postdate the preliminary hearing demonstrate that Mr Colb has struggled to comply with the scheduling conditions of his ISO and that he was hostile toward his first DSO. A new DSO has been assigned to him. The notes indicate that Mr Colb was feeling stressed and overwhelmed following release from custody, which I attribute to his institutionalisation. Mr Colb was initially given permission to call the ESO team to provide a verbal list of movements for approval each day. After about two weeks, this practice ceased. On 5 June 2023, Mr Colb was given two warnings for breaching the scheduling condition on 1 and 2 June 2023. On 16 June 2023, he was arrested for two similar breaches.

23. [45]

    On 6 July 2023, following a search of his room at Nunyara COSP where sharpened objects were allegedly found, he was arrested for breach of the conditions of his ISO. He was also breached for deviating from his schedule of movements and for discarding his mobile phone. The notes also disclose concerns that Mr Colb was not complying with the COSP program. On 10 July 2023 (whilst in custody), Mr Colb was evicted from Nunyara COSP.

24. [46]

    Both Dr Dayalan and Dr McSwiggan recommended a period of residential treatment to address the defendant’s risk of illicit substance abuse. I observe that Mr Colb has a pending NDIA application. On 2 August 2023, N Adams J made an order permitting the State to share the reports of Dr Dayalan and Dr McSwiggan with the NDIA. They were provided to that organisation on 12 August 2023. I was told from the bar table that emergency short term housing has been made available to Mr Colb. A document confirming that position was tendered on the release application.

25. [47]

    The defendant has had great difficulties complying with a schedule of movements. He has admitted to some drug use. I note that Mr Colb’s arrest in July 2023 occurred some two weeks after being sentenced to a Community Corrections Order for deviating from his schedule of movements on 7 and 13 June 2023.

26. [48]

    The plaintiff submitted, correctly in my opinion, that Mr Colb’s history of non-compliance raises concerns about the likelihood of his compliance with an ESO. Ms Heath submitted that Mr Colb requires stringent conditions to address his risks, and she noted that both Dr Dayalan and Ms Luketic that Mr Colb requires close monitoring and support on supervision. I agree.

27. [49]

    I have taken into account all matters in s 9(3)(a) –(i).

Conditions

1. [50]

   In advance of the hearing, the parties were able to agree on all conditions but for the conditions relating to scheduling (conditions 6, 7 and 8).

2. [51]

   Mr Bhutani’s first position was that these conditions should be deleted in their entirety because scheduling did little to ameliorate the defendant’s extant risk factors. He submitted that the proposed conditions constrain the defendant and set him up to breach them for benign behaviour. He relied on the opinion expressed by Dr McSwiggan that the scheduling requirements were too onerous and were unrelated to Mr Colb’s risk for serious reactive violence.

3. [52]

   I rejected this submission on the basis that Mr Colb’s substance use issues could not be appropriately monitored prospectively if a DSO did not know where Mr Colb intended to be on a daily basis. I also expressed a concern that onerous scheduling conditions might inevitably be breached because of Mr Colb’s inability to easily re-integrate into the community considering his institutionalisation. It was my view that a balance ought to be struck.

4. [53]

   Mr Bhutani’s second position was that a scheduling plan ought to be communicated to a DSO on a daily basis (i.e. the day before) rather than on a weekly basis in advance, as proposed by the State. Ms Heath agreed that this would be an appropriate modification. In my opinion, in light of Mr Colb’s difficulties in compliance and the comments of Dr Dayalan about Mr Colb’s executive functioning deficits, this was a fitting compromise position.

5. [54]

   There was much discussion about the appropriate wording which would reflect my concerns and the agreement between Ms Heath and Mr Bhutani. To their credit, they engaged in a drafting exercise which was ultimately to our mutual satisfaction.

Conclusion

1. [55]

   Taking all matters into account, noting that the safety of the community is the paramount consideration, I was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO for a term of 3 years.

Orders

1. [56]

   I made the following orders on 15 August 2023:

   1. (1)

      I make an order:

   2. (2)

      I order that the ISO made on 28 April 2023 is revoked.