State of New South Wales v Azar

The index offence

1. The circumstances of the index offence appear in the judgment of Matthews AJ in R v Kaddour; R v Azar [2017] NSWSC 586; see also Kaddour v R [2019] NSWCCA 90. They may be summarised as follows.
2. On 13 August 2013, the defendant and a Mr Mohamed El-Chami were with the victim, Bassem Salameh, inside his apartment. At approximately 8pm, Mr Salameh is alleged to have pinched the defendant on his buttocks while he was sleeping. The defendant took this to be a homosexual advance, and he was extremely angered by it. Mr El-Chami was woken by the defendant's angry response, and the two men then left the apartment.
3. The defendant and Mr El-Chami then met up with 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. The defendant and Mr Kaddour proceeded to assault Mr Salameh. Mr El-Chami left the apartment shortly after the assault commenced. He gave evidence at the trial 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. Mr El-Chami was originally charged with murder. However, he pleaded guilty to concealing a crime, and gave evidence that resulted in the conviction of Mr Kaddour.
4. Mr Salameh died from blunt force injuries to the head, and sustained additional injuries including fractures and lacerations to different parts of his body and head, broken ribs from being stomped on, and a ruptured eye. The weapons used to assault him were primarily objects found in the apartment. An unspent bullet was found at the back of his throat. The defendant was found by Matthews AJ to be the initiator of the assault.
5. The defendant was initially arrested on 16 August 2013 for questioning and the obtaining of samples of forensic evidence. At the time, he denied knowledge of the murder. 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 informed the police of those admissions.
6. On 20 August 2013 the defendant was charged with murder. After a psychological review it was found that he was suffering from a schizophrenic illness at the time of the offence. On 9 October 2015 he was found unfit to stand trial by Wilson J, and the matter was referred to the Mental Health Review Tribunal: R v Azar [2015] NSWSC 1486.
7. The defendant commenced antipsychotic treatment on 22 January 2014, and 24 March 2016 the Tribunal determined that the defendant was fit to stand trial. A fitness hearing took place before Matthews AJ on 18 April 2016, and her Honour found the defendant fit to be tried: R v Azar [2016] NSWSC 480.
8. 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 by Matthews AJ to seven years' imprisonment with a non-parole period of four years. The sentence commenced on 19 December 2013: R v Kaddour; R v Azar [2017] NSWSC 586.

Subsequent offending

1. The defendant was released to parole on 18 December 2017, the first day on which he was eligible for parole. Within three months of his parole order, he commenced displaying some non-compliant behaviour. This included missing his psychological appointments, continually seeking out antisocial 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 his family members and the Prevention Early Intervention & Recovery Service (PEIRS) staff who had been working with him to manage his mental health. He was placed on electronic monitoring in March 2018.
2. By May 2018, after being on parole for approximately five months, the defendant was involved in a domestic dispute with his cousins, who were listed on his parole conditions as being non-associations. He received a warning from the Parole Authority for breaching one of his parole conditions.
3. On 3 June 2018, his girlfriend at the time, Jennifer Hosn, had a verbal conflict with one of the defendant's sisters, Amagene, at the family home. Shortly after the conflict, the defendant approached a car belonging to his other sister, Vanessa, and twice threw an object towards the car window damaging it. Vanessa owned a car similar in make, colour and model to Amagene, and the attack on Vanessa's car seems to have been intended for Amagene's car. The defendant was charged with destroy or damage property (domestic violence).
4. On 14 June 2018 the defendant attended his uncle's residence armed with a knife which he then used to stab a screen door. When the police arrived, he resisted arrest and attempted to assault five officers. He was charged with the following offences: (1) Stalk/intimidate intending fear of physical harm (domestic) contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); (2) Assault officer in the execution of their duty contrary to s 58 of the Crimes Act 1900 (NSW); (3) Resist officer in the execution of their duty contrary to s 58 of the Crimes Act; (4) Common assault, contrary to s 61 of the Crimes Act; (5) Armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act; and (6) Destroy or damage property contrary to s 195(1)(a) of the Crimes Act.
5. All of these offences were committed while the defendant was on bail for the charge of destroy or damage property in relation to his sister's car. The defendant was returned to custody on arrest, bail refused. The Parole Authority revoked his parole effective from 14 June 2018.
6. On December 2018 the defendant was sentenced for all of the offences committed whilst on parole, receiving a sentence of one year and 13 days commencing 11 June 2018 and concluding 23 June 2019. There was a non-parole period of six months and 13 days concluding 23 December 2018. However, the Parole Authority determined on 17 January 2019 that the revocation order of 14 June 2018 should remain in place. Accordingly, the defendant was not released until the expiry of his sentence for manslaughter on 18 December 2020.

Mental health issues

1. After the defendant was released to parole he saw Dr Anthony Harris, his treating psychiatrist through PEIRS. In a letter dated 6 March 2018, Dr Harris noted that the defendant was offended during one of their sessions, and he threatened both Dr Harris and the PEIRS case manager, Conrad Netto. He also reportedly made violent threats towards his family with his aim being to deter his mental health supports from contacting them.
2. In a letter dated 9 March 2018, Mr Netto noted that although the defendant was compliant with his depot treatment for schizophrenia, he was difficult to engage in sessions and expressed a desire to cease his medication. The letter also said that the defendant lacked insight into the importance of medication despite receiving psychoeducation. During that same period, the defendant's mental health supports received information to suggest that the defendant had become increasingly aggressive and threatening, especially towards his family.
3. After breaching his parole order and being returned to custody, the defendant was assessed by Dr Gerald Chew. In a report dated 4 October 2018, Dr Chew expressed the opinion 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.
4. On 10 April 2019 the defendant's treating psychologist made an application for a Forensic Community Treatment Order (FCTO) under s 67 of the Mental Health (Forensic Provisions) Act 1990 (NSW) on the basis of the defendant's history of medication non-adherence and subsequent mental health decline. On 10 May 2019, a hearing was held before the Tribunal, and a 12 month FCTO was made, to expire no later than 9 May 2020. It required the defendant to accept any treatment and/or medication prescribed by his treating psychiatrist.
5. On 5 August 2020 the defendant was placed on another FCTO for a period of 12 months to expire no later than 4 August 2021. This was after a deterioration in the defendant's mental state was observed, marked by non-compliance with his anti-psychotic medications, including refusing to take his depot medication and becoming non-compliant with psychiatric review. The 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. The defendant indicated he had no intention of following up with mental health services upon release.
6. The defendant was scheduled to Long Bay Hospital (the Hospital) on 27 July 2020 for assessment and consideration of treatment with an injectable antipsychotic to ensure compliance. He was actually transferred to the Hospital on 19 August 2020. At the time, Dr Sarah-Jane Spencer noted that the defendant had refused to comply with his FCTO. Notes made by Dr Sharma and Dr Jackson on 19 August 2020 record that the defendant expressed anger at being transferred to the Hospital, and did not see the rationale for taking any medication. He made several violent threats when advised he would be receiving depot medication.
7. On 18 September 2020, the defendant was transferred back to a correctional centre from the Hospital.
8. On 20 October 2020 he was scheduled to the Hospital for assessment and consideration of treatment with an injectable antipsychotic after refusing to accept it voluntarily. An order was made for the transfer of the defendant to a mental health facility on 21 October 2020. On 11 November 2020 the Tribunal determined that the defendant be transferred to a mental health facility. On 27 November 2020 the order for the defendant's transfer made on 21 October 2020 was revoked. At that time the defendant was compliant with depot antipsychotic treatment, and he was stable.
9. The defendant completed the EQUIPS (Explore, Question, Understand, Investigate and Practise, Plan, Succeed) addiction program twice and EQUIPS program once while in custody. However, six months after his release on parole he lapsed into methamphetamine use.
10. While in custody, the defendant refused to participate in the Violent Offenders Therapeutic Program (VOTP) until 13 June 2019, but on that day he indicated he was prepared to participate in it if it would benefit his release. On 1 August 2019 he was inducted into the program. He was subsequently suspended from the program due to ongoing aggression towards psychologists and custodial officers.

The ISO

1. As noted earlier, on 16 December 2020 Hoeben CJ at CL ordered that the defendant be subject to an ISO commencing on 18 December 2020. On that day, the defendant's DSO, Ryan Gaffney, issued the defendant a formal, written direction in these terms: You are not to engage in any behaviour which would intimidate or threaten CSNSW staff, not limited to but including the ESO Team, COSP staff, fellow COSP residents and Electronic Monitoring team. This behaviour includes: Using foul language including swearing, using derogatory comments to identify or characterise a CSNSW employee, using abusive language that would interfere with or impede your case management and any other behaviour that is considered intimidating or offensive.
2. The defendant acknowledged and signed this direction.
3. The ISO was renewed on 14 January 2021 for 28 days expiring 11 February 2021.
4. On 21 January 2021, DSO Gaffney issued the defendant a verbal warning in relation to threatening and abusive behaviour by him towards EMU staff. The defendant had become very agitated, calling the EMU staff "dogs", and he informed DSO Gaffney that he would not speak to them any further. The defendant acknowledged the warning.
5. On 23 January 2021, the defendant contacted Community Corrections to request approval to amend his schedule of activities. The DSO was not working at that time. The defendant spoke to another DSO, Terry O'Brien. He became agitated and abused him saying, "Fuck you, you dog. Fuck your mum. Fuck you."
6. Later that day, DSO Gaffney and Unit Leader Robertson attended the Voyager Hotel Minchinbury where the defendant was living. DSO Gaffney tried to speak to the defendant about his attitude and behaviour towards Community Corrections staff and about the earlier phone call. The defendant again became agitated with DSO Gaffney, and informed him that he did not want to talk "to you cunts any more". He would not listen to anything the officers were saying but yelled at them to "Fuck off" and "Get the fuck out. I'm going to hurt you. Get the fuck out." Both DSO Gaffney and Unit Leader Robertson disengaged and left the hotel.
7. Later that day, the defendant was arrested and charged with failing to comply with the ISO. He appeared before Mt Druitt Local Court on 29 January 2021 where bail was refused.

Legislation and legal principles

1. The CHROA relevantly provides: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme 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. … 5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision): (a) while serving a sentence of imprisonment: (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.
2. Section 4 defines serious offence as, relevantly, meaning: (b) a serious violence offence.
3. Section 5A defines serious violence offence as, relevantly, meaning: (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) … (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: (a) … (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, …
4. Section 9 relevantly provides: 9 Determination of application for extended supervision order … (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. … Section 9(3) then sets out the matters to which the Court must have regard in determining whether an order should be made.
5. Section 3 provides: Objects of Act (1) The primary object of this 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. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In that way ESOs (and Continuing Detention Orders) are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5].
6. When discussing the concept of "unacceptable risk", Hoeben CJ at CL in Azar (Preliminary) said: [77] 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]. [78] As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) what the court must find to be unacceptable is the "risk" of the offender "committing a serious violence offence if he or she is not kept under supervision": see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCCA 57 (Lynn) at [51]; (b) the word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured": see Lynn at [50]; (c) while the Act does not specify "the precise parameters or standard or norm against which that determination (i.e., the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made": Lynn at [51]; (d) the determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community: Lynn at [55]; (e) the right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk: Lynn at [44], [55]-[58], [128], [148]. Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion; and (f) the evaluation to be made is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn at [61]. As Campbell J put it in Holschier at [49], guaranteeing community safety is an impossible task; making it secure is a relative, not absolute, standard. [79] 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.

Risk Assessment Report

1. A Risk Assessment Report was prepared by Mandy Lau, a forensic psychologist in the Serious Offenders Assessment Unit. In her executive summary, Ms Lau said this: Mr Azar has been assessed as falling in the High risk category for violent offending using an actuarial risk assessment instrument. His most relevant criminogenic needs include poor insight into his mental health and general violence, substance abuse, interpersonal aggression, emotional control, poor self-control, and poor compliance with supervision. Mr Azar's sentence expires on 18/12/2020. In the event that Mr Azar remains in custody at the time an application for an Order is brought and he is considered suitable for a Continuing Detention Order (CDO), this would provide Mr Azar with an opportunity to complete the VOTP if he has yet to complete the program by that stage. If he were to be subject to an Extended Supervision Order (ESO), the mitigation of future risk may be enhanced by ongoing community supervision and resources to help him to adjust to life in the community. This would require consideration as to whether his risk of serious violent offending can be adequately managed in the community with intensive supervision. Based on his lack of insight into his mental health, Mr Azar 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.
2. At the time of that report, 20 March 2020, the defendant was a participant in the VOTP but, as explained above, he did not complete that program.
3. Ms Lau said that the defendant reported that he commenced cannabis use when he was approximately 14 or 15 years old, and that appeared to coincide with his self-report of when he first experienced voices and when his family observed significant behavioural changes. He reported daily cannabis use until his incarceration, as well as consumption of Zanax and methamphetamine. Although the defendant denied illicit drug use in custody, the prison records indicated three positive results from urinalysis testing, with the most being in February 2020.
4. At the time of the index offence, the defendant's mental condition had not been diagnosed. When he first came into custody there was some dispute regarding his diagnosis. By the time he came before the Tribunal in 2016, he had been diagnosed with schizophrenia with active symptoms. He reported first hearing voices at the age of 15 years, and said that these symptoms were disruptive to his daily functioning prior to the commission of the index offence.
5. At the time of the interview with Ms Lau, the defendant had previously been assessed using the Level of Service Inventory - Revised. That is an actuarial risk instrument that provides an indication of the level of risk of general and violent recidivism within 12 months post-release, and of an individual's needs in terms of supervision in custody and if released on parole. It consists of both static and dynamic risk factors. At his assessment in November 2018 his risk/needs were assessed as falling within the high risk category for general and violent offending. Ms Lau assessed him using the Violence Risk Scale. His scores placed him in the high risk category for reoffending.
6. During the assessment, Ms Lau said that the defendant demonstrated poor insight into his mental illness, and expressed an understanding that his psychosis was drug induced and was only a temporary condition. He said that he wished to cease taking medication back in the community.
7. Ms Lau said that, given his poor insight, it appeared unlikely that he had developed a thorough understanding of the relationship between his mental illness and his violence. She said that this might negatively impact on his motivation to adhere to the long-term management of his mental health, and increase his likelihood of lapsing to illicit substance use for temporary relief, which could in turn increase his risk of violence.
8. Ms Lau concluded by saying: 74. In the event that he is considered suitable for an Extended Supervision Order (ESO), Mr Azar would be subject to intensive supervision, strict monitoring and case management by CSNSW. This may or may not include electronic monitoring, the obligation to provide weekly schedules of movement; the obligation to comply with his mental health treatment plan, unannounced visits by supervising staff and breath-analysis/urinalysis/drug-swab testing; assistance with finding suitable accommodation, employment and leisure activities; scrutiny of social contacts with the aim of increasing pro-social influences, and any relationships or associations could be monitored to ensure that Mr Azar is not using illicit drugs or associating with people who are; in addition to some form of psychological intervention by a CSNSW psychologist with a focus on risk management. … 76. In the event that no order is imposed, after 18/12/2020 Mr Azar would be at unconditional liberty. He would have no support from, or any monitoring by, CSNSW. It is possible that he could remain offence-free. Although Mr Azar'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 possibility that he may become non-compliant with his medication and relapse to drug use. This may lead him to become aggressive towards his family, which can impact on their ability and willingness to intervene or to provide ongoing support. It is therefore possible that future violence could also approach the threshold of a "serious violence offence".

Expert reports

1. Pursuant to orders made by Hoeben CJ at CL, the defendant was examined by Dr Susan Pulman, a clinical neuropsychologist and forensic psychologist.
2. Dr Pulman noted that the defendant had completed the Wechsler Abbreviated Scale of Intelligence (WASI-II) in March 2019. Results of that assessment indicated impaired intellectual functioning in terms of both verbal and nonverbal cognitive functioning. Dr Pulman administered the fourth edition of the Wechsler Adult Scale of Intelligence (WASI-IV). The defendant performed in the Extremely Low range and at the 2nd percentile on the Verbal Comprehension Index. His performance on the Perceptual Reasoning Index fell in the borderline range and at the 5th percentile. These results were consistent with a mild intellectual disability.
3. His basic auditory attention span was in the borderline range, but on measures of processing speed his performance fell within the average range. The significant discrepancy between his verbal comprehension and his processing speed meant that although he had an impaired understanding of verbal concepts, his reaction time was within the normal range. Dr Pulman said that he was therefore likely to misunderstand information, yet react quickly without having given due consideration to what he had heard or understood. Similarly, she said, his attention and concentration abilities were impaired. His inability to concentrate and attend to information adequately further exacerbated his risk of overreacting given his processing speed is much faster than his ability to pay attention and comprehend what he hears or understands. He was therefore at a greater risk of overreacting and misunderstanding information presented to him.
4. Dr Pulman also assessed him on the structured professional judgement tool called the Historical Clinical Risk Management-20. She assessed his risk of future violent reoffending as high. That rating was heavily influenced by his past history of mental illness, his limited insight into his mental illness, non-compliance with treatment and relapse into drug use.
5. Dr Pulman said that the defendant's relapse into substance use was a known fluctuating risk factor. Although he maintained his commitment to leading a drug-free lifestyle, he relapsed into drug use on parole and became increasingly aggressive, committing further violence related offences against his sister and uncle's property. Dr Pulman said that the defendant would require close monitoring and supervision to ensure he was compliant with his medication and remained abstinent from drug use.
6. Dr Pulman considered that a CTO was required due to his continuing condition and his history of non-compliance with treatment. Although such an order was necessary to treat and manage his mental illness, Dr Pulman said that further monitoring and supervision was required to manage the risk of him committing a further serious offence in the community. Dr Pulman recommended that an ESO should be in place for a minimum of three years.
7. The defendant was also examined by Dr Richard Furst, a forensic psychiatrist. Dr Furst diagnosed him with schizophrenia and Substance Use Disorder (cannabis, amphetamines, opiates). Dr Furst said that treatment generally involved a combination of antipsychotic medication and psychosocial support, including case management and assertive psychiatric follow-up. He said that facilitation of assisted living, supported housing, supported employment and family-based interventions also assist in reducing the impact of schizophrenia on sufferers.
8. Dr Furst considered that the defendant's young age, prior criminal history before the index offence, serious mental illness and his Substance Use Disorder were all factors that suggested his risk of future homicide was likely to be well above the risk seen in a Western Australian study conducted between 1984 and 2005 which Dr Furst discussed. He said that, similarly, his risk of committing a serious offence either of a violent or sexual nature was likely to be well above the rate evident in the same study.
9. Dr Furst considered the defendant's risk factors and how a person with those factors, both historical and dynamic, might influence the likelihood of future offending. Dr Furst said: Overall, Mr Azar presents as having a relatively high, burden of static criminogenic risk factors and a moderate to high number of dynamic risk factors, with a relative dearth of protective factors, including subnormal cognitive function even when free of psychotic symptoms. Although lack of insight into his mental illness and treatment needs has been consistently identified, by clinicians over the last several years and is a relevant risk dynamic risk factor, 'lack of insight' as a clinical construct fails to convey the deficits evident in Mr Azar. Unfortunately, he is not just insightless, but he is actively resistant with respect to treatment prescribed to him, to the point of threatening his treating psychiatrist at PEIRS in 2018 and other threats to mental health staff, both nurses and psychiatrist, whilst in custody over recent years, including over the last several months. Therefore, his deficits in relation to insight actually are so severe as the constitute an additional risk factor specific to his treating team, i.e. nurses/case managers, doctors and community-based departmental officers charged with implementing the proposed treatment plan/ESO plan, including risk of serious injury and/or death from Mr Azar, especially as his frustration will inevitably mount in relation to his Community Treatment Order and his depot antipsychotic medication.
10. Dr Furst was asked if he thought the risk of committing a further serious offence could be managed in the community. He said: Yes. Mr Azar fits the profile of serious offenders who would likely benefit from the more intensive level of supervision and treatment that an ESO offers, in accordance with the proposed risk management plan/risk management report of Ms Alexandra Critchon, dated 13/05/20. His major mental illness, lack of insight, resistance to taking medication, potential for future violent offending of a serious nature and his potential to abuse illicit drugs again are all relevant clinical considerations that require comprehensive monitoring and management. He [scil. His] low level of intellectual function, cognitive deficits, impulsivity, difficulty with emotional regulation and breaches of previous supervision/reporting requirements when on bail and parole are all features that warrant an ESO and would make voluntary treatment or treatment pursuant to mental health legislation alone inadequate in relation to managing his risk of future offending in the community.
11. Dr Furst endorsed the risk management report of Ms Alexandra Crichton dated 13 May 2020. Dr Furst said also that in relation to the proposed conditions of his ESO, the schedules in relation to supervision, electronic monitoring and schedule of movements were reasonable in relation to ensuring compliance, but the most important issue in relation to compliance would be ensuring his attendance at mental health appointments. He said drug and alcohol prohibitions were indicated, and testing to ensure abstinence from alcohol and illicit drugs were indicated.
12. Dr Furst said: Mr Azar probably has sufficient intellectual capacity to understand the conditions and expectations of the proposed extended supervision order. His capacity to comply with those conditions remains to be seen; however, his clinical profile, risk profile, negative attitudes and previous breaches of bail, bond and parole provisions make it likely he will breach his ESO at some point, should an ESO be made.
13. Dr Furst thought that the defendant would probably benefit from three years of supervision under an ESO in the first instance. He said that period would allow for the sustained treatment of mental illness in the community.

Submissions

1. The defendant does not dispute that the requirements set out in s 5B(a)-(c) are made out. In relation to (d) the defendant did not contest that he presents a risk of reoffending and, to some degree, of committing a future serious violence offence. The defendant's primary contention was said to be that the unacceptable risk test under that paragraph has not been met. One reason it has not been met, it was submitted, is that an ESO will do nothing to reduce the risk of reoffending and, as a result of likely repeated breach action and a cycle of incarceration, the order may actually increase his risk of committing a future serious violence offence.
2. The defendant submitted that the structure of (d) incorporates a consideration of the effectiveness of any potential order being imposed. That is said to be because the concluding words of the paragraph are "if not kept under supervision under the order". The defendant says that the proposed order does little to reduce the unacceptability of the risk, or may actually increase the risk. In that way the test has not been met. The defendant also relied on what was said by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29], submitting that he supported that construction.
3. The defendant also pointed to a mandatory consideration in s 9(3) being paragraph (e2) being: The likelihood that the offender will comply with the obligations of an extended supervision order.
4. The defendant submitted further that the legislation should not be used in lieu of parole or mental health legislation. Of course, the defendant had completed his entire sentence, so the use of parole is an irrelevant consideration. In relation to mental health legislation, the defendant submitted that the FCTO would be adequate to deal with the defendant's mental health and associated issues.

Determination

1. The defendant particularly relied for his argument that the unacceptable risk test has not been met on the concluding words of paragraph (d), and what was said in Naaman (No 2) at [29(6)]. It is important, however, to understand what was said in Naaman.
2. It should first be noted that Naaman involved an application under the Terrorism (High Risk Offenders) Act 2017 (NSW). Although that Act has a number of similarities with the CHROA, particularly as to its phraseology, the enquiry under that Act involves a number of different considerations. The analogous section to s 5B of the CHROA is s 20 of the Terrorism (High Risk Offenders) Act. Paragraph (d) of that Act has as a requirement: The Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
3. The Court said this in relation to (d) at [29]: [29] Paragraph (d) is a complicated provision, and in light of the State's submissions in support of ground 1 of its appeal that the primary judge had conflated various aspects of the test it prescribes, it is best to address its elements immediately. (1) First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction. (2) Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur. (3) Thirdly, par (d) requires the Court to be satisfied to a "high degree of probability" of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court's state of satisfaction to be "to a high degree of probability". (4) Fourthly, that forward-looking evaluation turns upon the premise that the eligible offender is "not kept under supervision under the order" which the State is seeking. On that premise, the Court is then required to determine the "risk of committing a serious terrorism offence". It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct. (5) Fifthly, the Court is then to determine whether that risk is or is not "unacceptable". It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not "unacceptable" is not otherwise defined in the Act. (6) Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order. (emphasis added)
4. It may be observed from the paragraph commencing "Sixthly" that the comparison between the risk if the defendant was not under supervision with the risk if he was under supervision does not form part of the consideration of the Court being satisfied to a high degree of probability that the offender poses an unacceptable risk. Rather, that is one discretionary consideration which a court can take into account if it is otherwise satisfied of the unacceptable risk.
5. It should also be noted that in Naaman at [4], the Court determined that the State had not shown there was an unacceptable risk of the respondent committing a serious terrorism offence, but that finding had nothing to do with the issue of the same risk existing whether or not the offender was supervised.
6. It is then necessary to say something about paragraph (e2) in s 9(3) of the Act upon which the defendant places some reliance. That paragraph, as with the others, is a mandatory consideration.
7. The paragraph and a related one were introduced into both ss 9 and 17 of the CHROA by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW). Those paragraphs provide: (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order,
8. It is a little difficult to understand the purpose of the paragraphs in s 9 in the light of what was said by the Attorney-General in the Second Reading Speech. The Attorney-General said relevantly: Secondly, the reforms will reframe the test for making an extended supervision order or continuing detention order to ensure that where an offender cannot be safely managed in the community on an extended supervision order [ESO] they are instead subject to continued detention in a correctional centre. … The Bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender's risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. In determining whether and what type of order to impose, the Court would be required to have regard to the existing considerations in ss 9 and 17 of the Act, including community safety, the offender's criminal history and the sentencing remarks of the original sentencing court. In addition to existing considerations, the reframed test will require the court to consider two additional factors: whether the offender is likely to comply with an ESO, and options in the community or in custody that would help reduce the offender's risk of reoffending over time.
9. It is not clear, therefore, why the these paragraphs were inserted in s 9, particularly paragraph (e2), because the purpose of the paragraphs seems directed towards the position where, if the Court could not be satisfied an offender would comply with the obligations of an ESO, it would be appropriate to impose a CDO. Such a position is possible only where the Court is determining an application for a CDO, because of the options available to it under s 17. It is not possible when a court is determining an application for an ESO for the Court to impose a CDO: s 9(1).
10. However, whatever the relevance of paragraph (e2) in s 9(3), it is not a determinative matter but merely one of the mandatory considerations. I do not consider that it would be inappropriate to make an ESO, where there is an unacceptable risk of the defendant committing another serious offence if not kept under supervision, simply because an offender may not comply with the obligations of an ESO.
11. This issue of non-compliance was said to form the basis for a conclusion that the imposition of an ESO would not make it less likely that the defendant would commit another serious violence offence, and may make it more likely that he would do so, because of the effect of possible repeated returns to custody for breaching the terms of his ESO.
12. In the present case, the evidence does not support the submission that the risk will not be reduced, or might even by increased, if an ESO is put in place. The evidence of both Dr Furst and Dr Pulman was that the primary benefit of the ESO was that it would increase his chance of taking medication and engaging with local mental health services. They both accepted that his intellectual disability would make it more difficult for him to comply with the conditions imposed on him and that it was likely he would breach his conditions on multiple occasions.
13. Dr Furst was asked if he would accept that multiple returns to custody would regress the defendant's rehabilitation, and he said: WITNESS FURST: That depends on the benefit or the potential benefits of returning to custody and being sanctioned, which would include, hopefully, a greater compliance with the conditions of taking medication and abiding by the conditions. It also has to be weighed against the fact he has already spent seven years in custody. So incremental increases, with his clinical profile, I don't think would change his overall prognosis. Even if he had four or five, even ten, repeat incarcerations for a month to three months, I don't think that's going to change his overall clinical profile and risk profile compared to what I see now. BHUTANI: Do you agree that the lack of stability, in terms of returning to custody and coming out of custody, will be a regression in terms of his prospects of rehabilitation? WITNESS FURST: No, I don't disagree with that. BHUTANI: Do you agree that, say, there are five or ten returns to custody that there is a very high risk that Mr Azar will lose motivation to rehabilitate? WITNESS FURST: We might be talking about different sorry, we may be talking at cross purpose about rehabilitation. If you are talking about rehabilitation for an average offender without mental illness and drug issues, intellectual disability, then maybe a person like that would lose motivation. We are talking about a different person here with different clinical needs and different supervision needs, in my view, who poses a specific risk to health workers, which I put in my report, of seriously injuring a health worker because of his attitudes towards psychiatry. He needs strong supervision, in my view. It is different to someone who has lost a bit of hope in life.
14. After the defendant was recently charged with failing to comply with the conditions of his ISO and was returned to custody, Dr Furst was asked to provide a further report, answering particular questions in relation to that non-compliance and return to custody. Dr Furst said that the new information did not cause him to revisit his earlier opinions. He also said: I remain [of] the opinion that Mr Azar lacks insight into his illness, is resistant to psychiatric treatment and supervision generally, and would likely disengage from all psychiatric services, refuse medication and use drugs again without an ESO, meaning the conditions sought by the State are overwhelmingly beneficial in relation to his long term rehabilitation, even if Mr Azar finds them frustrating and acts out accordingly.
15. That evidence shows that, although there may be breaches and even returns to custody, the risk of further serious offences will not be increased, and the imposition of the ESO is still likely to be beneficial, not only in helping to protect the community, but also for the rehabilitation of the defendant.
16. I do not consider that the CHROA is being used here in lieu of mental health legislation. When it was put to Dr Furst that there would be no difference between the CTO and the ESO requiring compliance with the CTO, Dr Furst said he thought that the ESO would have a greater chance of the defendant complying with the CTO because there is a potential criminal penalty. In that way Dr Furst said the defendant needed extra incentive while in the community to comply, given that there had been difficulties even in custody concerning his compliance with the CTO.
17. The defendant submitted that he only has one serious offence on his record, and that was committed when he had an undiagnosed schizophrenia. Moreover, he submitted, he does not have a lengthy criminal record, nor does he suffer from a diagnosis that by its nature predisposes him to committing a serious offence.
18. However, as Wilson J said in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at ]71]: Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate.
19. Here, there is a need to focus on the gravity of the risk. As Dr Furst said: I think you have someone with very oppositional attitude towards people. When he's not getting his way, he threatens to kill them or threatens some other harm and they back off and get scared of him. Given it is a homicide, you have to be scared of someone like that.
20. All of the evidence, including the risk management report prepared by Ms Crichton satisfies me to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence of violence if not kept under supervision pursuant to an ESO. There are no matters which would lead me to exercise my discretion against making such an order.

Conditions

1. The defendant submitted that the conditions should only be directed to his primary risk factors which were his substance abuse and his mental health issues. In particular, the defendant opposed a condition which imposed a schedule of movements. This was submitted to be a draconian measure accompanied by high risk that the defendant will become overwhelmed or will inadvertently breach the requirement. It was submitted that it was not directed towards the defendant's risk of committing a spontaneous act of violence, nor did it facilitate his rehabilitation.
2. The defendant submitted also that the conditions required a preamble to make very clear the difficulties he faced because of his intellectual and mental health issues. It was said that the preamble should read as follows: Daniel Azar has a diagnosis of schizophrenia and a mild intellectual difficulty. This Order, the conditions and any direction of a DSO given in reliance of this Order should be administered and enforced in a way that recognises the impact of Mr Azar's diagnoses on his ability to understand and engage with those that supervise him under this Order.
3. Finally, the defendant's counsel tendered a schedule of conditions in simple English which were said to be more suitable for the defendant to understand.
4. The plaintiff prepared a schedule of its proposed conditions. The schedule contained a column recording the defendant's approach to particular conditions (on the assumption that the simplified conditions will not be imposed) and the plaintiff's response. Before dealing with particular conditions, I will deal with the defendant's general submissions.
5. In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL said this concerning conditions: [43] Section 11 of the Act allows the Court to impose such conditions under a supervision order as the Court considers appropriate. This power is constrained by the scope of the Act: Winters v Attorney General of NSW [2008] NSWCA 33 at [19]. Assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1) is to provide for the extended supervision of such offenders "so as to ensure the safety and protection of the community". Subsection (2) provides that another object of the Act "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation". [44] Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. (vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855. (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]. (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131].
6. In my opinion, a schedule of movements is a necessary requirement in the circumstances. A similar submission was made by the defendant to Hoeben CJ at CL at the preliminary hearing. Justice Hoeben said at [116]: 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.
7. I agree with those remarks. Dr Furst said in his oral evidence that the defendant needs "strong supervision". When the very basis of the ESO is a determination that there is an unacceptable risk of the defendant committing a further serious violence offence, the defendant's DSO needs to know exactly where the defendant is until the defendant is able to be trusted. His experience when released to parole was an unhappy one, with the defendant endeavouring to make contact with antisocial people, including people in the drug milieu. As part of the defendant's rehabilitation he needs structure in his life. Although in many respects the defendant is no different from many other people the subject of ESOs who have intellectual difficulties and mental health issues, where his index offence was an unlawful homicide and he continues to threaten to kill people when frustrated and commits acts of violence, any apprehension that he will be overwhelmed by this condition is secondary to the strong need for such a condition.
8. In relation to the submission concerning a preamble, I do not consider that I have the power to direct that the conditions have such a preamble. Section 11 only provides for the imposing of conditions. It does not enable the Court to direct the DSO or other people involved in the enforcement of the ESO how they should go about their task. In any event, it can be reasonably assumed that the DSO and others will have all necessary information concerning the difficulties under which the defendant labours. As I noted in the previous paragraph, this defendant is not unique in having intellectual difficulties, mental health and substance abuse issues, and even some form of oppositional disorder as the experts describe.
9. I was initially attracted to the idea of simple English conditions as proposed by counsel for the defendant being imposed. These conditions were first identified when Kelli Grabham, a High Risk Offender Applications and Operational Governance Officer at the ESO Team, was in the witness box and was being cross-examined by Mr Bhutani for the defendant. The cross-examination in relation to the document was this: Q. You mentioned Ms Grabham in your affidavit the potential usefulness of Plain English conditions? A. Yes. Q. If I can show you a document (shown). I will give you a moment, it is a somewhat lengthy document. I don't think you go into detail of each individual condition, but when you refer to Plain English conditions was it something along the lines of a document like this that you were referring to? A. Similar. Q. And do you recognise the benefit that a simplified version of conditions like this would have for Mr Azar complying with the order? A. It could potentially have some benefit, yes. … Q. You mentioned in some earlier evidence the benefits of scheduling to assist an offender with greater structure in their life? A. Yes. Q. I might get you to turn that document over, the same as your Honour's copy, you will find a handwritten proposal. I will give you a moment to read that. You are aware of the condition that is commonly referred to as dry scheduling? A. Yes. Q. Dry scheduling also assists an offender in creating structure in their life A. I am sorry, you are asking, that was a question, sorry? It can assist in implementing structure, yes. BHUTANI: Nothing further your Honour. HIS HONOUR: What do you want to do with this document? BHUTANI: I am later going to rely on it for the purpose of my submission but so it is clear I am happy to tender it. HIS HONOUR: You can tender it if you want to. BHUTANI: Your Honour it is something we produced, it has not come out of the evidence, perhaps marked for identification and I will later refer to it in my submissions. MFI #1 DOCUMENT CONTAINING THE DEFENDANT'S SCHEDULE OF CONDITIONS OF SUPERVISION
10. The basis for these questions from the defendant's counsel appear to have been two paragraphs of Ms Grabham's affidavit which said: 17. The ESO team has experience managing defendants who might experience difficulties understanding the conditions attached to an ESO, In such cases, a "plain English" document is often utilised to ensure that a defendant understands the conditions to which he/she is subject. For example, conditions could be simplified as follows and accompanied by picture and further verbal explanations from a DSO: a. "I must not buy or drink alcohol"; b. "I must do drug tests if a DSO tells me to"; c. I must be home by 9pm every night"; and d. "If a DSO asks me I must tell them what I am doing this week". 18. In addition, the following measures will be employed if required to ensure that the defendant understands the conditions to which he is subject: a. All conditions will be verbally explained to the defendant by a DSO including examples. b. At each reporting appointment a verbal reminder will be provided to the defendant regarding his conditions again using examples when required. c. Either an audio and/or visual recording of conditions could be completed by the DSO and saved onto the defendant's most used device (generally mobile phone) so that the defendant can access this at any time to check what his conditions are and what is expected of him. d. During all audio and/or visual recordings the defendant could be asked if he understands the conditions, examples, directions or warnings issued. If the defendant's states that he does not understand a further recording will be completed providing additional examples or information until he states that he does understand. e. If directions are issued based on the defendant's conditions they could also be completed verbally and via audio and/or visual recording and saved to the defendant's device, f. If warnings are issued based on the defendant's conditions they could also be completed verbally and via audio and/or visual recording and saved to the defendant's device. g. Visual aids can also be supplied to the defendant to ensure he has reminders of conditions both at his residential address and on his device (photographed and stored). h. The defendant's schedule could also be photographed and stored on his device for easy access when he is in the community and needs to access this information regarding his daily activities.
11. I was concerned, however, that the production of these conditions had taken counsel for the State and representatives of the Crown Solicitor by surprise. After the hearing, my associate then wrote at my direction to the legal representatives for the parties, saying that I was minded to impose plain English conditions, but giving the State (first) and subsequently the defendant the opportunity to make further submissions about those conditions, including concerning whether or not they should be imposed and, if so, whether there needed to be additions, omissions or variations to those put forward by the defendant. The parties subsequently lodged further submissions.
12. Having considered those further submissions, and having read in some detail the OIMS Case Note reports from the time the defendant was released at the end of his sentence until he was returned to custody on 23 January 2021, I do not intend to impose the simplified conditions put forward on behalf of the defendant. There are two principal, but related, reasons for that.
13. There is no doubt that the defendant has what Dr Furst and Dr Pulman refer to as a mild intellectual disability. The term "mild" should not be misunderstood in the circumstances. I discussed at [53] and [54] above what Dr Pulman said of this designation, and how it was likely to affect the defendant in relation to his processing of information.
14. Rather surprisingly, counsel for the defendant did not ask either of the experts to read and comment on his proposed conditions, nor was it suggested to them that the defendant might have difficulties understanding the conditions put forward by the State. Indeed, the cross-examination of the experts concerning how the defendant's intellectual disability would affect his compliance with the conditions was this: BHUTANI: In fact, Mr Azar's mild intellectual disability could pose particular problems with him planning ahead? WITNESS PULMAN: Yes. BHUTANI: It could pose particular problems with the understanding of abstract concepts like time? WITNESS PULMAN: Yes. BHUTANI: And it could often lead to misunderstanding of directions that are given to him? WITNESS PULMAN: Yes, it could. BHUTANI: You've seen the proposed conditions of the extended supervision order? WITNESS PULMAN: Yes. BHUTANI: It is fair to say that Mr Azar will find the scheduling conditions far more difficult than someone without a mild intellectual disability? WITNESS PULMAN: Yes, they would. BHUTANI: Dr Furst, do you agree or have any comments in relation to the evidence given by Dr Pulman? WITNESS FURST: No, I agree with that.
15. That evidence does not lead to any conclusion that the conditions proposed by the State are not likely to be understood by the defendant, although it might suggest he will have difficulty complying with some of those conditions. Further, as I noted earlier at [63], Dr Furst said that the defendant "probably has sufficient intellectual capacity to understand the conditions and expectations of the proposed extended supervision order". Dr Furst went on to say that his capacity to comply with them remains to be seen.
16. The second and related reason is that nothing in the OIMS Case Notes for the defendant's post-release period suggests that there was in fact any difficulty in the defendant understanding his conditions. The position was, rather, that he frequently complained of being bored, and he wanted to engage in behaviour (contacting the wrong people through Facebook, going to places not in accordance with his schedule of movements) that was not permitted. His frustration arising from the various restrictions, and what appeared to be a rise in the level of his aggression from his underlying schizophrenia, led ultimately to behaviour that breached the warning that had been given, and to his arrest and charging.
17. Counsel for the defendant pointed to what the defendant said in his affidavit at paragraph 3: I was a bit nervous about my release because there were so many conditions. That is not a statement that the defendant does not understand them. Indeed, what appears later in that affidavit supports the view that the difficulty is not comprehension but compliance. The defendant said at paragraph 6: I have found the conditions too hard and too strict.
18. Dr Pulman pointed out that the difficulty was not so much understanding as reacting before he has considered what he has heard. This arises from the difference between his verbal comprehension and his processing speed.
19. Whether the approaches set out in paragraphs 17 and 18 of Ms Grabham's affidavit (set out at [98] above) are necessary for the defendant is not apparent, because neither he nor those writing the OIMS Case Notes nor the evidence from the experts suggests that there is anything other than a compliance problem, and that such compliance difficulties as the defendant has do not arise from any lack of understanding what he is required to do and refrain from doing.
20. The issue of conditions being drafted in a simple way for defendants who may have difficulty understanding more complex ones was raised and considered in State of New South Wales v Neal [2018] NSWSC 1806. As may be seen from my reasons at [44] to [47], I did not impose the plain English conditions in that case. There were two principal reasons for that. First, I was dealing with a preliminary hearing for an ISO. Secondly, I did not consider that the plain English conditions adequately dealt with the need for certainty as to the rights and obligations of both the offender and the DSO. An important consideration is that the conditions define the rights and obligations of both the defendant and the DSO, but that does not mean that plain English conditions may not be apt do that in an appropriate case.
21. My attention has subsequently been drawn to the decision of Hamill J in State of New South Wales v Carr [2014] NSWSC 1348. That case involved an offender with drug and alcohol issues. There was evidence from a psychologist who had been involved in the defendant's supervision for some years that the defendant may not comprehend the nature of the conditions, either because he did not understand the words or, if he did, he did not understand the purpose behind the supervision order. Plain English conditions were largely agreed between the parties in the light of that evidence. Those conditions were simply expressed, and addressed the defendant in the third person: see for example at [65]: (1) Daryl must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. (2) Daryl must report to the Department Supervising Officer (DSO) or any other person nominated by them if told to. (3) Daryl must follow all reasonable directions by his DSO or anyone else who might be supervising him.
22. The conditions put forward by the State in the present matter are drafted in a reasonably straightforward way and are generally easy to understand. To the extent that the defendant has any difficulties with comprehension the ESO team will, no doubt, adopt one or more of the methods set out in Ms Grabham's affidavit to advance the defendant's understanding. It is certainly clear that it was no lack of understanding on the defendant's part that led to his breach and arrest in January 2021.
23. Prior to the hearing and, therefore, prior to any suggestion on behalf of the defendant that any simplified version of the conditions should be ordered, the defendant proposed some amendments to the State's proposed conditions that formed part of the amended summons. I will now deal with those conditions where modifications or changes were proposed by the defendant. As a result of changes made, including omissions, to the conditions originally proposed by the State in the amended summons, the condition numbers in the schedule to these reasons have altered from the condition numbers that were put forward by the parties and which I dealt with in my reasons which were delivered on 11 March 2021. The condition numbers which follow have been amended to accord with the condition numbers in the schedule to this judgment.

Condition 1

1. The State proposed that condition 1 should read as follows: The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO. The defendant proposed that the condition reads: The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO which are reasonably necessary for the enforcement of any of the conditions of the ESO to which he is subject.
2. The State opposes the addition of those words and relies on what was said by Button J in State of NSW v Biber (No 2) (Final) [2021] NSWSC 104. The condition that was sought in that case by the defendant was identical to what is proposed in the present case. Justice Button thought that there was no significant difference between the two proposals but went on to say at [61]: … And if there is in fact a significant difference between the two proposed wordings, I am of the view that reasonable necessity should not be limited only to enforcement of conditions; there may be other aims - not least, rehabilitation generally - that should be able to underpin a reasonable direction.
3. In my opinion, the condition proposed by the State should be ordered.

Conditions 5 to 7

1. Conditions 5 to 7 dealt with the schedule of movements. These were opposed in their entirety by the defendant. The matter has been dealt with earlier.

Condition 10

1. The State proposed that condition 10 should read: The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant. The defendant opposes this condition.
2. Ms Grabham says in her affidavit that this condition is used primarily as an adjunct to case management strategies, and a further consideration is the critical nature of stable accommodation for the defendant in supporting other risk and case management strategies. She says that attempts are being made to source appropriate supported accommodation through the NDIS which would provide the defendant with a supported independent living environment.
3. In my opinion, it would be entirely unsatisfactory if the defendant was able to thwart the efforts of CSNSW to find stable accommodation by behaving in a way which would threaten his remaining in the accommodation. The condition should remain.

Condition 13

1. Condition 13 proposed by the State is as follows: If the defendant is living with a co-resident he must not invite any person to enter and remain or stay overnight at his approved address (or room if staying in supported accommodation) without the prior approval of his DSO. If any of his co-residents invite or permit someone (other than a health professional or tradesperson) attending the residence to provide a service (the visitor) to enter, remain or stay overnight at the approved address (or room if staying in supported accommodation) the defendant must inform his DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from his DSO in relation to the visitor. Note: this condition does not apply to the defendant's co residents.
2. No submissions were made on behalf of the defendant in relation to condition 13. The State submits that this condition along with condition 12, which requires the defendant not to spend a night anywhere other than his approved address without the approval of a DSO, are required for the DSO to monitor antisocial associations, which is one of the defendant's risk factors. It also enables the DSO to conduct assessments of proposed persons with whom the defendant wishes to spend the night, and any risks that this may pose.
3. In my opinion, the condition should be included.

Condition 21

1. The State proposes that condition 21 read: The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
2. Although the defendant objected to this condition, no submissions were made on behalf of the defendant in relation to it. The condition is a necessary adjunct to other conditions, including the fact that the defendant must not possess or consume alcohol without the prior approval of a DSO, and a condition that he must submit to alcohol testing.
3. The condition should be included.

Conditions 23 and 24

1. The State proposes that conditions 23 and 24 read as follows: 23. The defendant must not associate with any person or persons specified by a DSO. 24. Without limiting condition 26, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO.
2. Again, although these conditions were objected to, no submissions were made on behalf of the defendant explaining why. In my opinion, these conditions, or some form of them, are necessary to ensure that the defendant can be monitored in relation to those persons with whom he mixes. Antisocial relationships are a particular problem in the defendant's case.
3. These conditions should be included.

Condition 25

1. The State proposes that this condition should read: The defendant must agree to a DSO disclosing his criminal history to anyone the defendant is in a personal intimate relationship if the disclosure is reasonably necessary.
2. The defendant proposes that the condition read: If the defendant starts an intimate relationships with someone he has to tell his DSO who may want the person to know about the defendant's criminal history. If so, the defendant's DSO is to give the defendant (within a reasonable timeframe as agreed between the DSO and the defendant) the opportunity to tell his new partner about his criminal history. If the defendant does not wish to, or fails to inform them within the agreed time, the DSO may want to tell the person about his criminal history.
3. The State does not oppose the defendant's proposed condition. The defendant's proposed condition is appropriate because it assists in giving a degree of autonomy to the defendant. It should be substituted for what the State had proposed.

Conditions 29 to 39

1. These conditions concern access to the internet and other forms of electronic communication. In short, the conditions are designed to ensure that the DSO can supervise the defendant's use of his phones and computers. In that way the defendant must supply passwords, telephone numbers and other related details, and must provide consent to the DSO to access the defendant's internet account remotely. The conditions also prevent the defendant deleting or altering applications, emails, text messages etc, and they provide for the defendant to give consent for his telephone provider and internet service provider to share information with the DSO about his accounts.
2. The defendant opposes these conditions entirely. Counsel submitted that there was nothing inherent in his risk profile that suggested he might use the internet in a way that could lead to the commission of future serious violent offences. The defendant said the conditions did not sufficiently go to the relevant risk.
3. It is apparent that the conditions do not prevent the defendant from using the internet or accessing social media. They are designed only to ensure that there is some form of supervision in that regard. The OIMS case notes demonstrate that after the defendant was released from custody he wanted to access Facebook to contact antisocial peers from his past. There is a real risk that the defendant could wrongly use electronic communication to acquire drugs. Any use of drugs by the defendant would be bound to exacerbate his underlying mental health issues, including his propensity for violence when frustrated.
4. These conditions should be included.

Condition 40

1. The State proposes the following condition 40: If the DSO forms a reasonable suspicion that a search is required either to monitor the defendant's compliance with this Order or the safety and welfare of any other person or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to a search by his DSO (or any other person as directed by the. DSO) of his person or residence or any vehicle in which he is travelling or which is under his effective control or any computer, electronic or communication device, storage facility, garage, locker or commercial facility in his possession or under his control and to the seizure of any object during the search.
2. It is not clear what form the defendant seeks that condition 40 should take, because the drafting of the defendant's condition 40 is identical with that of the State. I note that at the preliminary hearing the State had proposed a different form of condition 40, but after objection proposed condition 40 in its current form. That was the form approved by Hoeben CJ at CL at [156]. In my opinion, the condition is appropriate.

Conditions 45 to 52

1. Conditions 45 to 52 deal with medical intervention and treatment. The State proposes the following: 45. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as reasonably directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 46. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults if the consultation relates to his mental health or alcohol and/or substance use. 47. The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 48. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 49. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. 50. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 51. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. 52. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.
2. The defendant proposes the following in lieu of those conditions: 45. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as reasonably directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 46. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults if the consultation relates to his mental health or alcohol and/or substance use. 47. The defendant must agree to his healthcare practitioners who administer and monitor his forensic community treatment order or community treatment order sharing information including reports on his progress and information with his DSO in circumstances where the said healthcare practitioner reasonably believes the collection, use or disclosure is necessary to lessen or prevent a serious threat to life, health or safety of any individual or to public health or safety or is otherwise relevant to the risk of serious offending by the defendant. Before sharing such information, the defendant's healthcare practitioner must first inform the defendant of the information to be shared.
3. Conditions 45 and 46 as proposed by the defendant are in an identical form to that put forward by the State.
4. In my opinion, condition 47 proposed by the defendant in relation to the sharing of information is completely unworkable. A similar proposal was put forward in State of New South Wales v Currie (Preliminary) [2021] NSWSC 175. In respect of this proposed condition I said at [66]: What is proposed by the defendant in condition 55 would seem to me to place an impossible burden on a health care practitioner, even if it was the defendant's regular health care practitioner. Such persons are not qualified to consider whether some treatment is appropriate for the defendant's rehabilitation and risk mitigation in relation to the defendant committing a serious offence. Although the defendant subsequently proposed omitting reference to the defendant's rehabilitation and risk mitigation, it is scarcely for a health care practitioner to judge whether something might be related to the defendant committing a serious offence. The difficulty would be highlighted if the defendant was to see a health care practitioner for the first time, and there was an obligation for that practitioner to provide information about the consultation to the DSO or some other legitimate person. Such a practitioner, without any detailed history of the defendant, would be in no position to make a judgment concerning the defendant's rehabilitation or risk mitigation.
5. I adhere to that view. In my opinion, conditions 42 to 52 as sought by the State should be included.

Conclusion

1. I make the following orders: 1. An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), that the defendant be subject to an extended supervision order for a period of three years from the date of the order. 2. An order pursuant to s 11 of the Act directing that, for the period of the extended supervision order, the defendant is to comply with the conditions set out in the Schedule to these orders.

SCHEDULE OF CONDITIONS OF SUPERVISION DANIAL AZAR In these conditions: "CSNSW" means Corrective Services "Defendant" means "Daniel Azar", the defendant in these proceedings and the subject of the order. "Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "Electronic Identity" means each of the following: (a) an email address; (b) a user name or other identity allowing access to an instant messaging service; (c) a user name or other identity allowing access to a chat room or social media on the internet; and (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material' includes: 1. any written or printed material; 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure; 4. any photograph, film, video recording or other object or thing from which an image may be reproduced; 5. any computer data or the computer record or system containing the data; and 6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes: 1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant' possession, where the article of clothing is touched or removed from the person's body; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. 3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements 5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency. Part B: Accommodation 8. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements. 9. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO. 10. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant. 11. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 12. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. 13. If the defendant is living with a co-resident he must not invite any person to enter and remain or stay overnight at his approved address (or room if staying in supported accommodation) without the prior approval of his DSO. If any of his co-residents invite or permit someone (other than a health professional or tradesperson) attending the residence to provide a service (the visitor) to enter, remain or stay overnight at the approved address (or room if staying in supported accommodation) the defendant must inform his DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from his DSO in relation to the visitor. Note: this condition does not apply to the defendant's co-residents. Part C: Place and travel restrictions 14. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. 15. The defendant must not leave New South Wales without the approval of the Commissioner. Part D: Employment, finance and education 16. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO. 17. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. Part E: Drugs and alcohol 18. The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained. 19. The defendant must not: a. Possess or consume alcohol without the prior approval of a DSO. 20. The defendant must submit to drug and alcohol testing. 21. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO. 22. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge himself from such programs and courses without prior approval of a DSO. Part F: Non-association Associations with Others (not children) 23. The defendant must not associate with any person or persons specified by a DSO. 24. Without limiting condition 26, the defendant must not: a. Associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO; b. Associate with any people who he knows are consuming or under the influence of illegal drugs; or c. Associate with any person held in custody without prior approval of a DSO. 25. If the defendant starts an intimate relationship with someone he has to tell his DSO who may want the person to know about the defendant's criminal history. If so, the defendant's DSO is to give the defendant (within a reasonable timeframe as agreed between the DSO and the defendant) the opportunity to tell his new partner about his criminal history. If the defendant does not wish to, or fails to inform them within the agreed time, the DSO may want to tell the person about his criminal history. 26. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation. Part G: Weapons 27. The defendant must not possess or use any of the following: a. A firearm, firearm part or ammunition within the meaning of the Firearms Act 1996; or b. A prohibited weapon within the meaning of the Weapons Prohibition Act 1998. 28. Without limiting or altering condition 30, the defendant must not possess or use any of the following, without a DSO's prior approval: a. A knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; b. Any other implement made or adapted for use for causing injury to a person; or c. Anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. Part H: Access to the internet and other electronic communication 29. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information. 30. The defendant must not use any alias, electronic identity, log-in name, name other than "Daniel Azar" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers. 31. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO. 32. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed. 33. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind. 34. The defendant must not use any coded or encrypted messaging application or service. 35. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection. 36. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services. 37. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order. 38. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. 39. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. Part I: Search and seizure 40. If the DSO forms a reasonable suspicion that a search is required either to monitor the defendant's compliance with this Order or the safety and welfare of any other person or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to a search by his DSO (or any other person as directed by the DSO) of his person or residence or any vehicle in which he is travelling or which is under his effective control or any computer, electronic or communication device, storage facility, garage, locker or commercial facility in his possession or under his control and to the seizure of any object during the search. 41. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order. Part J: Personal details and appearance 42. The defendant must not change his name from "Daniel Azar" or use any other name without notifying a DSO. 43. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 44. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. Part K: Medical intervention and treatment 45. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 46. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. 47. The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 48. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 49. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. 50. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 51. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. 52. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Amendments 17 March 2021 - Orders and conditions entered into judgment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2021