State of New South Wales v Bou-Antoun

Supreme Court of NSW|2022-07-14|Before: Garling J, Dhanji J

Solicitors: Crown Solicitor NSW (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2021/290879

JUDGMENT

On 14 July 2022, I made the following orders: 1. Order pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 on and from 22 July 2022 that the defendant be subject to an Extended Supervision Order for a period of 3 years from 22 July 2022. 2. Order pursuant to s11 of the Crimes (High Risk Offenders) Act 2006, that the defendant is, for that 3 year period, to comply with the Conditions set out in the Schedule to the Order.
Other orders were made. At the time that I made the orders to which I referred in [1], the Court reserved its reasons for the making of those orders. These are the reasons.

Preliminary Judgment

On 29 April 2022, for the reasons which he then gave, Dhanji J ordered that the defendant be subject to an Interim Supervision Order ("ISO") upon conditions specified, and that two qualified psychiatrists or registered psychologists be appointed to examine the defendant and provide reports to the Court.
His Honour's reasons are found in State of New South Wales v Bou-Antoun (Preliminary) [2022] NSWSC 513.
In his thorough and comprehensive judgment, his Honour reviewed the relevant factual background, the index offences and the circumstances surrounding the defendant's release on parole. His Honour also reviewed the various assessments of risk which had been undertaken.
His Honour noted that the defendant did not oppose the making of an ISO on the conditions proffered.
For the purposes of these reasons, I accept the conclusions of Dhanji J and will assume familiarity with those conclusions, without repeating them here.

The Defendant's Attitude

In written submissions filed on behalf of the defendant on 11 July 2022, a few days before the hearing, the defendant indicated that he did not oppose the Court making an ESO. However, the defendant opposed the making of the order for three years. He submitted that the appropriate period was two years.
As well, the defendant took issue with some of the proposed conditions to be attached to the ESO. There was also a debate as to whether the wording of the conditions to be attached to the ESO could be expressed in simpler English.
Because of the defendant's attitude to the proceedings, it was only necessary for two witnesses to give evidence orally. Those witnesses were the two Court appointed experts - Patrick Sheehan, a specialist forensic psychologist, and Dr Calum Smith, a specialist forensic psychiatrist.

Pre-conditions to the making of an Order

An ESO may be made if the pre-conditions stated in s 5B of the Crimes (High Risk Offenders) Act 2006 ("the Act") are met. They are that: "(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."
In his written submissions, the defendant conceded that each of these pre‑conditions had been met. Counsel maintained that position during the hearing of the proceedings.
I note that Dhanji J was satisfied, on the material placed before him, and having regard to a similar concession made by counsel for the defendant before him, that the material would "justify a finding to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an order": see [58].
Since that judgment, each of the Court-appointed experts have provided their report.
Mr Sheehan recorded that he assessed the defendant as presenting a moderate to high risk of committing a sex offence and a moderate risk of committing a violence offence "on a spectrum of risk, relative to other offenders".
Dr Smith concluded that the defendant suffered from schizophrenia or a schizo-affective disorder, that he had borderline cognitive functioning, and that he had antisocial personality traits or an antisocial personality disorder. He concluded: "…I note that the STATIC 99 has categorised him as high risk. I have reviewed the scoring and concur with it. I have conducted the RSVP. This too would characterise him as medium to high risk …"
Dr Smith concluded that the defendant's risk of violence was currently low/moderate. However, he noted that the risk depended upon the defendant continuing to take his medication. He expressed this view: "The relevant point being that whilst the overall risk of violence whilst on medication may be low/ moderate, he remains brittle even on medications and this risk could change especially if he was not treated. This is something that is a significant risk of occurring, given his lack of insight and ambivalence towards treatment."
Based upon the material reviewed by Dhanji J and these two additional reports, and noting the concession of counsel for the defendant, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sexual offence, or a serious violence offence, if not kept under supervision under an ESO.

Appropriate Length of Order

In the Summons which initially commenced the proceedings, the State sought an order which would continue for a period of 5 years.
In the Amended Summons filed on the day proceedings were heard, the State reduced the period sought from 5 years to 3 years.
The defendant submitted that an appropriate period was 2 years.
In his expert report, Mr Sheehan concluded that a term of 5 years for an ESO would be appropriate having regard to the chronic nature of the risk factors operating in the defendant's case. He added this opinion: "… it may be that a lesser period (3 to 4 years) could also be effective and avoid discouraging [the defendant] in his process of rehabilitation."
The State drew attention to this opinion and submitted that it warranted the making of the order for a period of 3 years.
Mr Sheehan expanded on his opinion about the length of time, when he gave his evidence orally. He said this: "We are relying on Mr Bou-Antoun to actively engage in his [ESO], and to work with supervisors, and without that, all is lost, so I found that when five-year orders are imposed, it is discouraging, and I think that may be the reason why the median order seems to be about three years, a Goldilock zone, where it's not too punishing but at the same time it doesn't - I've seen orders imposed of one year and there was, it's such a scramble to get things organised in a year, and by the time you're starting to make progress, the State's already applying for the next extension which is also an interruptive and discouraging experience for the defendant, so I think a lesser period, and having some negotiation with the conditions could help the person to actively participate in their order, and be more a chance of succeeding in the order."
Mr Sheehan was frank in agreeing that his opinion was, at best, a prediction. He agreed that the period which he identified was one in which he would expect the regime imposed under an ESO to have the intended effect.
Mr Sheehan envisaged that a longer period would be necessary so that, having regard to the chronicity of the risk factors which had endured over time, supervision could take effect and then be gradually reduced in its frequency and intensity so as to enable the defendant to live a risk-free life so far as possible.
Dr Smith, upon whose opinion the defendant relied, concluded in his report as follows: "I am aware that a length of time is required to ensure that plans in the community are established to be managing the risk. … Together, it would be hoped there would be, firstly there would be enough time to establish the plan is working, and refine any problems with it, whilst ensuring it is not unnecessarily long. Secondly, that sufficient change in the risk profile had occurred. Should it be established that it is working, then management can then occur as per the established management plan, without the added framework of the ESO. He has already been in the community for some time with minor issues. I would therefore suggest a length of time of two years at which time it can then [be] reviewed."
In his oral evidence, Dr Smith agreed that the chronic risk factors which exist in the case of the defendant were likely to persist for a significant period of time beyond three or four years.
He then came to deal with the recommendation which he made with respect to the length of time for an ESO. He said this: "A: … If it helps the Court, I can explain my thinking about this and - look, obviously Mr Sheehan's and my formulation I think is largely quite concordant, but I think there might be just a slight difference, in that I personally tend to place slightly more emphasis … on his mental illness. … … but I'd say two things. One is, certainly the treatment for mental illness within the prison setting seems to have strongly modulated a lot of the risks, certainly in terms of violence. There comes a time - he's already, roughly, close to a year out - I would say another two years if the breaches are - if there are no breaches or the breaches are relatively minor, you can start to some degree thinking that this person, for whatever reason, we talked about it with Mr Sheehan, age could be one of them, being on treatment, the framework of the ESO. He also has NDIS, so one of the things I think we talk a lot about, I think scheduling and development of activities and protective factors, he does now have NDIS funding, so that should be crucial in terms of developing a pattern, developing lifestyle and attaining a structure that we think will be protected. So, you know, it may not be that he reaches that place after two years, but that's my sort of informed guess about when we can realistically hope to have enough evidence that we might not need to have it in place any more."
Dr Smith agreed that the 2-year period was the shortest time period during which he thought it would be possible for the defendant to show any significant improvement.
In resolving the question of the length of the order, and in determining that the length of the order should be 3 years, it is necessary to keep in mind the primary object of the Act which is set out at s 3, namely to provide for the extended supervision of high risk offenders "… so as to ensure the safety and protection of the community".
In circumstances where the experts agreed that the history of the defendant and the chronicity of his risk factors were such that those factors could be expected to endure for many years, and where Dr Smith thought that the period of 2 years which he had nominated was the minimum period during which he would expect improvement to be made, I formed the view that I should accept the plaintiff's submission that a 3-year period would be the appropriate one. In so doing, I concluded that the minimum 2-year period to which Dr Smith referred would not reflect the primary object of the Act which was to ensure the safety and protection of the community.
Accordingly, by reason of the particular factors in this case affecting the defendant, and having regard to his history, I determined that a 3-year period was the appropriate one.

Conditions

Section 11(1) of the Act notes that an ESO made by this Court may direct a defendant to comply with "… such conditions as the Supreme Court considers appropriate".
There is then a list of directions which may be imposed. It is not an exclusive list.
In State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL said at [44] this with respect to the imposition of conditions: "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 [[2015] NSWSC 1254] at [83]; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman [[2007] NSWCA 119] 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) [[2015] NSWSC 483] 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 [(2016) 91 NSWLR 636; [2016] NSWCA 57] at [129]-[131][)]."
It is also necessary to keep in mind, when considering what conditions are appropriate to be imposed, the provisions of s 3 of the Act. I note that the objects of the Act, to which I have previously referred, are primarily to ensure the safety and protection of the community. I also note that another object of the Act is to "encourage [offenders] to undertake rehabilitation".
I keep these principles in mind. In particular, I agree with respect with the remarks of Fagan J in State of New South Wales v BG (Final) [2019] NSWSC 200 at [36]-[37], where his Honour said: "36 Numerous of the conditions of supervision sought by the plaintiff under s 11 of the Act are opposed by the defendant. Overall, I consider that many of the conditions for which the plaintiff has argued are not appropriately tailored to the supervision of this particular defendant and do not pay sufficient regard to the circumstances in which he is likely to commit a further offence, based upon his history. In settling the conditions to be imposed under s 11 of the Act, I must have regard to the fact that any breach thereof may result in prosecution for an offence against s 12, the maximum penalty for which is 5 years imprisonment. A degree of caution must be exercised in setting conditions, where breach may have such serious penal consequences. 37 Many of the things which would be prohibited according to the conditions proposed by the plaintiff would not be punishable at all according to the general criminal law. The effect of making an ESO with conditions of this nature is to proclaim specifically for the defendant, for the period of the order, a series of prohibitions each carrying a maximum penalty of five years imprisonment. With respect to each such condition the Court must be satisfied that it at least contributes usefully to the protection of the community and also that it is reasonably measured and appropriate to the objects of the Act."

Condition 4

The first condition which was the subject of any challenge, was Condition 4. The plaintiff proposed that the condition should read: "The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment."
It was submitted that to require the defendant to wear electronic monitoring equipment for a further three years, in circumstances where he had already been on parole for about a year, was unduly onerous and would not permit there to be any improvement in his capacity to regulate his own movements and to become both independent and responsible.
Having regard to the fact that the defendant had already been supervised on parole for a year, without any breaches of any significance being drawn to the Court's attention, I formed the view that the object of assisting the defendant to rehabilitate would be advanced if a time limit was put on the electronic monitoring, provided that that time limit would not apply where there had been any breach of any condition of the ESO.
Accordingly, I permitted condition 4 as sought by the plaintiff, but subject to the addition of the following new sentence, namely: "The defendant is not required to continue to wear such equipment as and from 16 June 2023 unless, prior to that date, the defendant has been found to have breached any condition of this Extended Supervision Order."

Condition 6

There was a significant debate about whether the defendant should be required to seek approval from the departmental supervising officer ("DSO") about any change of his scheduled movements 24 hours in advance. The condition as proposed by the plaintiff was in the following terms: "6. (a). The defendant must not deviate from his summary of anticipated movements except in an emergency, or unless as specified in (b) below; (b). It will not be a breach of condition 5 if the defendant departs from the summary but notifies his DSO of his change of plans before doing so, or as is reasonably practicable afterwards."
In my view, although the clause was the subject of debate, it was appropriate to make the order, but it was necessary to make a correction to 6(b) because of a faulty English expression so that 6(b) would read: "It will not be a breach of condition 5 if the defendant departs from the summary but notifies his DSO of his change of plans before doing so or as soon as is reasonably practicable there afterwards."

Condition 20

The plaintiff sought the imposition of condition 20, which is in the following terms: "The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO."
The plaintiff contended that such a condition was appropriate because of a concern that the defendant might engage in employment which involved him coming into contact with vulnerable people, or else finding himself alone in the premises of a person, particularly a female. It was submitted that such circumstances may occur even if the defendant was in a domestic trade such as being a plumber or an electrician.
It was submitted on behalf of the defendant that the condition did not provide him with any encouragement to aim to lead the sort of pro-social life that would be hoped for by someone being rehabilitated from past sentences of imprisonment. It was also submitted that this condition did not address, let alone reduce, the level of risk of the defendant re-offending.
In my view, the condition does not address the particular risks presented by the defendant. Nor does it encourage him to lead an independent, pro-social and law-abiding life by engaging in employment, work as a volunteer or undertaking any education. As well, if the defendant did obtain such a position and needed to attend the premises where he was engaged in those activities, that would become immediately apparent on his ordinary schedule of movements.
Accordingly, I was not prepared to allow condition 20.

Condition 22

The plaintiff sought the imposition of a condition to the following effect: "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO."
The plaintiff submitted that this condition was an appropriate one for two reasons. First, it would allow monitoring of the defendant's engagement in his pro‑social activities to ensure that he was not, for example, spending large amounts of money in unexplained and inappropriate ways. Secondly, it was necessary to identify whether there were any risk factors that might emerge from the way the defendant was spending his money.
The defendant opposed this condition. He submitted that having regard to his history, the fact that he was in receipt of a Centrelink benefit with no history of inadequate management of his financial affairs, and no criminal history relating to financial offending including untoward drug or alcohol use, the condition was far too intrusive and was of a punitive kind. It was submitted that the condition was not addressed to any risk of the kind which had been proved.
I agree with the defendant's submissions. The condition is an intrusive one, and does not, in this case, address any of the risks which were identified. In those circumstances, I did not think it appropriate to impose condition 22.

Condition 27(a)

Condition 27(a) was in the following form: "27. Without limiting condition 32, 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. Condition 27(a) does not apply to members of the defendant's family or other persons pre-approved by a DSO."
I declined to impose this condition because, in my view, it is a significant intrusion into the defendant's life which was not warranted by the identification of the relevant risk. Put differently, the condition did not pertain to or address any risk identified. As well, the terms of it were, to my reading, such that any enforcement of the condition would be impracticable. Further, there was no logical reason, if the condition did address a particular risk, to exclude members of the defendant's family or other pre-approved individuals. In those circumstances, I declined to impose condition 27(a).

Condition 32

Condition 32, which the plaintiff sought, was in the following terms: "The defendant must not possess or use any of the following, without a DSO's prior approval: (a) a knife (other than for use in cooking or other domestic purposes), 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; (c) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property."
The plaintiff submitted that the condition was appropriate because it was a matter of common sense to say that the possession of weapons increases the risk of their use. The plaintiff accepted that the defendant did not have, in the context of his criminal offending, a history of weapons possession, although it pointed to the fact that there was one institutional charge - the detail of which was not available - relating to the possession of an offensive weapon or instrument whilst the defendant was in custody. The plaintiff agreed that the penalty that was imposed was very minor and for that reason did not ask the Court to draw any particular inferences as to exactly what type of offensive weapon it was.
Whilst I accepted that, as a general principle, the defendant should be the subject of a condition that prevented him from accessing inappropriate weapons, I formed the view that the terms of the condition were complex, were of a kind that this defendant in particular would have difficulty in understanding them, and were confusing. In those circumstances I indicated that I would not permit the condition in the plaintiff's proposed form. I concluded that the appropriate condition to restrict the defendant's use of weapons was the following: "The defendant must not possess or use any prohibited weapon."

Form of the Orders

Having indicated to the parties that any orders which were sought by the plaintiff would need to be adjusted to reflect the conditions and amendments which I have just described, I directed the parties to confer and agree upon a set of orders which reflected the Court's conclusions generally.
One of the issues raised by counsel for the defendant was whether the standard form of order used by the plaintiff, including the words in the various conditions, was the appropriate form in the circumstances of the defendant, having regard to his particular cognitive impairments.
The lawyers for the defendant submitted that a simpler form of words would be more desirable.
I indicated to the parties that this was a matter for them to discuss and resolve, although it was a matter of common sense that it would be unfair to the defendant to impose conditions if he could not understand their terms.
The parties ultimately agreed on the wording of the conditions and provided those to my Chambers.
Accordingly, the conditions which have been attached to the ESO were those agreed to by the parties, and which reflected my conclusions about the appropriate conditions to be imposed.
As earlier indicated, these are the reasons for the orders which I made on 14 July 2022, and which I repeat below.

Orders

I made the following orders: 1. Order pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 on and from 22 July 2022 that the defendant be subject to an Extended Supervision Order for a period of 3 years from 22 July 2022. 2. Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant is, for that 3 year period, to comply with the Conditions set out in the Schedule to this Order. 3. Order that access to the Supreme Court's file in respect of any document should not be granted to any non-party without leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified to the Registrar so as to allow them and the defendant opportunity to be heard in relation to the application of access.

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: 31 March 2023

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (11)