State of New South Wales v Bowen

State of New South Wales v Bowen - [2019] NSWSC 1003 - NSWSC 2019 case summary — Zoe

[3]

Evidence at the final hearing

The final hearing of the matter occupied a full day on 7 August 2019. There was no dispute that the statutory preconditions for the making of an ESO were established. What was in dispute was whether an ESO should be made at all. Mr Bowen further contended that if an ESO were to be made, it should be for a period not exceeding 18 months, and that many of the conditions proposed by the State should be amended or omitted.
In addition to the reports of the two court-appointed experts mentioned above there were a number of other reports, including a Risk Assessment Report by Ms Cherice Cieplucha, Chief Psychologist, Risk Management Programs, Corrective Services NSW, dated 21 November 2018 (Cieplucha Report), and a Risk Management Report by Mr Marc Corcoran, Senior Community Corrections Officer, ESO Team, dated 20 December 2018 (Corcoran Report). The other documentary evidence tendered by the State included the usual array of affidavits and documentary material.
Counsel for Mr Bowen read an affidavit of her instructing solicitor, to which was annexed a "Counselling Letter and Summary" dated 12 April 2019 and a "Psychological Report" dated 24 July 2019, both by Mr Michael Kirton, clinical psychologist. Mr Kirton has been Mr Bowen's treating psychologist since he was released from gaol in September 2018. Also annexed to this affidavit was a letter by Mr Anthony Cresweller. Mr Cresweller met Mr Bowen when he was a participant of the Kairos course that Mr Cresweller hosted at Junee Correctional Centre in 2011, and has maintained contact with Mr Bowen since that time. Mr Cresweller wrote that he plans to maintain regular contact and provide support to Mr Bowen in the future.
Counsel for Mr Bowen tendered a Corrective Services NSW case note dated 6 February 2019 together with a copy which had a portion redacted (Exhibit 1). The same was tendered in the preliminary hearing before Wright J who made an order under s 126E(b) of the Evidence Act 1995 (NSW) for the non-publication or disclosure of the redacted portion. The full terms of the order are set out in his Honour's judgment at [12] and the reasons appear at [13]-[19]. I was invited to make the same order. I do so as I agree with his Honour's reasons for the document being received in evidence, subject to an order being made. I will take the same course as his Honour: the original will be placed in a sealed envelope with an appropriate covering note and the redacted version will openly available with all of the other documentary evidence.
A further Corrective Services case note dated 19 February 2019 was tendered by counsel for Mr Bowen and became Exhibit 2.
The State also tendered a victim statement pursuant to s 21A of the Act. Counsel for the State indicated that the victim did not consent to disclosure of the statement to the defendant. I have had regard to the content of the statement whilst remaining mindful of the matters I am required to consider by virtue of various other provisions of the Act. The statement makes abundantly clear the degree and enduring nature of the harm and fear Mr Bowen's actions caused. It is little wonder that there is support for the making of an order, but that depends upon the State establishing what it must under s 5B of the Act.
Dr Martin and Ms Dewson were required for cross-examination and they gave their evidence concurrently. Ms Kelli Grabham, Applications and Operational Governance Officer of the extended Supervision Order Team, Corrective Services NSW, was also required for cross-examination on her affidavit.
The judgment of Wright J referred to above contains (at [21]-[78]) a very thorough and careful survey of much of the evidence that was tendered at the preliminary hearing and again at the final hearing. I rely upon his Honour's summary and will not repeat much of it.

[4]

Offending history

For the benefit of the reader, I will simply indicate that Mr Bowen's history of violent offending and incarceration comprises the following matters: Assault occasioning actual bodily harm on 26 October 1998. Sentenced to 125 hours of community service. Assault occasioning actual bodily harm on 18 February 1999. Sentenced to 150 hours of community service. Murder on 4 September 1999. Sentenced to imprisonment for 18 years with a non-parole period of 13 years 6 months. Released to parole on 4 June 2013. Parole revoked and returned to custody on 1 November 2013. Further released on parole on 25 December 2014. Recklessly inflict grievous bodily harm on 25 June 2015. Sentenced to imprisonment for 3 years and 5 months with a non-parole period of 2 years and 3 months. Released to parole on 25 September 2018. Parole period expired on 31 May 2019. Interim supervision order commenced.
The victim of the murder offence was Mr Bowen's employer at a caravan park. He was found by police having been beaten around the head and body with a wooden baton and fire tongs. The cause of death was a brain injury. It appeared that the circumstances of the offending included that Mr Bowen was intoxicated by alcohol and cannabis, and that he had formed the view that the victim owed him money and intended to use force to get it. Around the time of the offending, Mr Bowen had made threats against other people who lived at the caravan park, including a woman who lived there, with whom he was in a relationship.
The grievous bodily harm offence occurred six months after Mr Bowen had been re-released on parole for the murder offence. It occurred on 25 June 2015, when Mr Bowen punched his partner in the face a number of times, back-handed with a closed fist, causing three or four teeth to fall out as well as associated bruising and swelling. This occurred in the context of a relationship of about six months in which Mr Bowen had begun assaulting the victim within weeks of its commencement. The agreed facts included that he had assaulted her on numerous occasions, causing bruising and swelling to her face.
The parole to which Mr Bowen was subject from 25 September 2018 to 31 May 2019 included conditions that he submit to electronic monitoring; abstain from alcohol and illicit drugs; participate in the "maintenance" component of the Violent Offenders Treatment Program; not contact (etc) the victim or her family; and not go into the Randwick City Council local government area. There were also general conditions as to supervision by Community Corrections.
The ISO which commenced upon the cessation of the parole period added some further requirements. (The full schedule is appended to the judgment of Wright J.)

[46]

Generally as to risk

The three experts whose opinions were relied upon by the State (Cieplucha, Martin and Dewson) were virtually unanimous in their assessment of the level of risk that Mr Bowen poses of committing a further serious violence offence. Mr Kirton did not really disagree with such assessments. He wrote: [67] "Other reports include the assertion that under the current tools of assessment of risk, that the risk of Mr Bowen offending is "moderate" risk. (Dr Martin 4, P15) This statistical data is based on historical events which is considered appropriate. His current level of functioning is likely less than this and the question remains in this: because of the current ESO [sic - ISO] guidance and requirements or has he changed in himself to be less than a moderate risk currently and in the future based on this. There are no absolutes in regard to community safety as there are no absolutes in this speculation for the future. If he continued as he is then the risk levels are lessened."
As to likely scenarios of risk, Ms Cieplucha wrote: [68] "Based on Mr Bowen's history of offending, he demonstrates increased potential for violence within the context of interpersonal relationships, and in particular, intimate relationships. He has a history of reactive and impulsive aggression in addition to attitudes that condone and normalise violence. Possible scenarios that may elicit aggressive responses include those where there is real or perceived conflict; when his views are challenged; or as a way of asserting his dominance or having his needs met. Mr Bowen has a lengthy history of dysfunctional relationships which have been characterised by substance misuse, conflict and aggression. He appears to anger quickly and has reacted with violence in an effort to alleviate distress and resolve conflict. Mr Bowen's potential for violence is likely to be heightened when he is experiencing stress or conflict in his relationships. Early warning signs may include intimidating or controlling behaviour or verbal abuse. Based on his history of difficulties coping and managing life stressors (e.g., financial hardship, unemployment or accommodation difficulties), there is the potential for Mr Bowen's mental health to deteriorate, most likely in the form of depression, prompting him to employ maladaptive copying strategies such as alcohol and/or illicit substance use. A lapse into substance use or a decline in his mental health would indicate a heightened risk for violence, with there being a greater tendency for impulsive, reactive and explosive aggression when disinhibited by the effects of intoxication or substance use."
Dr Martin noted a number of protective factors, and then wrote, "His risk of violence will increase if in a dysfunctional intimate relationship, if using alcohol and other substances, or if experiencing extreme stress (for instance in an escalating argument with another person)." [69]
Ms Dewson obtained a history from Mr Bowen in which he described having maintained several long-term partnerships in the past, six of which were cohabiting. He acknowledged that domestic violence was present in each relationship.
A number of apprehended violence orders (AVOs) have been made against Mr Bowen. A report by Ms Anita Duffy, psychologist, dated 6 December 2000, includes that Mr Bowen's mother obtained an AVO, presumably after his offence of assault occasioning actual bodily harm in 1998, where his mother was the victim. The report continues with accounts that Mr Bowen gave of a number of past relationships in which there was turbulence and, in respect of three partners, where AVOs against him were obtained. The grievous bodily harm offence in 2015 occurred in a similar context and another AVO was obtained. I have mentioned above that it was an agreed fact that this offence was preceded by numerous physical assaults over several months.
Ms Dewson's assessment was that Mr Bowen "poses a high risk of spousal abuse in the future". [70] She said that he "appears most at risk of violence within the domestic/romantic context". [71]
It is clear that ongoing abstinence, particularly in relation to alcohol, is an important factor for Mr Bowen in reducing risk. Ms Cieplucha wrote, "Given the past relationship between substance use and violence, ongoing abstinence will be important if Mr Bowen is to have a chance at successful community reintegration". [72] Dr Martin was of the same opinion. He wrote: [73] "Substance use disorders should be considered a chronic vulnerability." and: "In my view, it is reasonable to accept that given Mr Bowen's history and problems controlling his behaviour, that substance use will remain a significant vulnerability for him for the rest of his life".
Mr Bowen has expressed his confidence in remaining abstinent from alcohol to the various authors of the reports before the Court, but there appears to be a question as to the degree to which he understands the importance of this. He regularly attended licensed premises during the eight month period in which he was on parole. There is no suggestion that he consumed alcohol and, presumably, his purpose was to play poker machines. He said to Dr Martin that it was his preference to be allowed to drink a glass of wine with dinner on occasion. [74] Similarly, he told Ms Dewson that "he would ideally like to drink small quantities of alcohol socially". [75]

[48]

Progress under current period of supervision

There has been no suggestion of any physically violent conduct by Mr Bowen in the period since his release last year. It is difficult to discern whether that is attributable to what he has learned from the various programs he has undertaken and the counselling he has received, to the fact that he has been under close supervision, to the particular circumstances in which he has been living, or to a combination of such matters.
Dr Martin wrote, "In Mr Bowen's case, it is likely that he will always be prone to being impulsive, reckless and potentially resorting to violence in the context of interpersonal conflict, based on his history to date. That being said, it is also possible for a person to moderate their behaviour over time and as a rule, anti-social people become less violent and learn to moderate their behaviour as they mature" (emphasis added). [78] In terms of "maturity", it may be noted that Mr Bowen is now aged 51; at the time of the murder he was aged 31; and at the time of the grievous bodily harm offence he was aged 47.
In his report, Mr Kirton indicated the positive progress Mr Bowen was making, but at the same time indicated that rehabilitation was not a short term project: In the context of Mr Bowen's positive progress under Mr Kirton's treatment plan: "I believe the treatment plan is slowly working …" [79] (Emphasis added) "In terms of his own rehabilitation, then if it proceeds apace with current time frames then it is my opinion he will gradually become better and better adjusted to the community and personal relationships". [80] (Emphasis added) "If or when Mr Bowen gradually heals from his lifelong patterns of PTSD and the underlying symptoms, then he will progress positively as he learns to fit into a community connection in positive ways that he has not been able to achieve in the past". [81] (Emphasis added)
Mr Kirton favoured at least some continuing level of supervision for Mr Bowen. He referred to him having always requested ongoing counselling but wrote: [82] "The question as to whether he would continue counselling is a difficult one. Generally, I would seek mandatory counselling for some time so the decision about attendance is removed from the counselling relationship". (Emphasis added) and "Taken on what he says, he would continue counselling without the supervision of an ESO. Considering Mr Bowen's history, I would prefer to see counselling mandated with someone of his choice for the immediate future."

[49]

Evidence as to Mr Bowen's negative attitude to the prospect of an ESO

Turning to matters more relevant to the discretion as to whether an ESO should be made, Mr Bowen has consistently and persistently expressed a negative attitude to the prospect of an ESO being made. For example, Dr Martin wrote: [83] "He expressed some unhappiness with the proposed ESO in relation to the restrictions and expressing a lack of respect for Corrective Services generally."
Ms Dewson wrote that he had "no respect" for Community Corrections officers and his supervisor under the ISO. She wrote: [84] "It appears that his views on these supports reflect his greater antiauthoritarian beliefs rather than any individually based conflict".
It is, however, notable that while expressing such negative attitudes, Mr Bowen has in fact been largely cooperative with supervision over past 10 months or so, although Ms Dewson wrote: [85] "[I]t appears that Mr Bowen has generally been compliant with rules, although [he] has had difficulty within interpersonal interactions with supervising staff and likely continues to have difficulty accepting direction from people in authority".
Ms Dewson also noted: [86] "Perception of an ESO: According to Mr. Bowen, he is not willing to accept being subject to an ESO, stating that it is 'all about control, and I'm over it'. He wasn't able to identify any need [or] benefits to the Order, commenting that he has 'no respect for CSNSW or the Police as they won't let me go'. Mr. Bowen specifically expressed feeling 'pressure' associated with the ESO conditions and is afraid of being returned to custody for an accidental breach. He also expressed concern about his capacity to form friendships, maintain positive psychological health and perform vocationally under the restrictions of the ESO. According to Mr. Bowen, he feels so strongly about the ESO and the negative impact that this will have on his life that he intends to 'commit suicide' should it be imposed. He stated that he 'can't even think about living a life subject to these conditions' and subsequently has 'googled' methods of asphyxiating in a vehicle. Throughout the interview, he stressed that he was 'not suicidal', but rather viewed this as his only option in the presence of further supervision. Whilst Mr. Bowen's suicide threats likely reflect the distress he is experiencing, they may also serve as an attempt to deter the Order being imposed. Regardless, this highlights ongoing difficulties with emotional regulation and problem solving during difficult times. It is recommended that Mr. Bowen's risk of harm to himself be closely monitored, particularly at times of heightened stress and during periods of community supervision."
Mr Kirton noted that Mr Bowen had complained about being subject to the ISO "and at some points he has been depressed about it and says he loses hope for the future. Currently he is not exhibiting these symptoms". He then referred to specific aspects that were the cause of resentment but added that "This is something he is working on in counselling". [87]

[50]

Discretion to make order

Counsel for Mr Bowen accepted that his negative attitude towards the making of an ESO was relevant to the discretionary aspect of whether an order should be made, even if the test in s 5B(d) of the Act is satisfied. She submitted that placing Mr Bowen on an ESO would be counterproductive and militated against the making of an order. She referred to State of New South Wales v Naaman (No 2) [2018] NSWCA 328 as a case where the discretion to make an order was not exercised where the high degree of probability that the defendant posed the relevant unacceptable risk was substantially the same or even greater if he were kept under supervision. [88]
The Court of Appeal in that case was concerned with the Terrorism (High Risk Offenders) Act 2017 (NSW), s 20 of which is in similar terms to s 5B of the Act. In fact, s 20(d) is almost identical to s 5B(d) in empowering the Court to make a supervision order if "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", the only difference being the reference to "a serious terrorism offence" as opposed to "another serious offence". The Court described the elements of the provision as follows (at [29]): "(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."
It was the sixth element to which counsel for Mr Bowen referred. Counsel for the State responded that the present case is not suggested to be one where there is a similar or greater risk of a defendant committing a serious offence even if kept under supervision; the asserted counter productiveness is more concerned with Mr Bowen's responsiveness to treatment and, based on what he told Ms Dewson, harm to himself.
The primary judge in that case declined to make an order because the criterion in s 20(d) was not made out. The Court of Appeal held that he was correct to do so and the appeal was dismissed. But in disposing of the matter the Court observed (at [98]): "We are conscious of the risk of a person who is mentally unwell committing a spontaneous act of serious violence. Some of the acts of terrorism committed in Australia have been committed by people who are mentally ill. However, even if there were evidence to suggest that the respondent might engage in the conduct mentioned in the State's submission, there is nothing to suggest that the conditions imposed by an extended supervision order would reduce that risk from manifesting."
That observation is not pertinent to the present case. I am not satisfied that the asserted counter productiveness of making an order would justify the Court exercising its discretion to decline to make an order in this case. That is primarily because of the need to have regard to the paramount consideration stated in s 9(2) of the Act, "the safety of the community".
It is pertinent in this regard to note Dr Martin's opinion: [89] "Risk of future violence will be managed to an extent by supervision. However, as Mr Bowen articulates himself, such conditions will not prevent future violence and this will be dependent on his own behavioural control. For instance, none of the proposed conditions will prevent in absolute terms the possibility of interpersonal conflict. That being said, the proposed conditions around substance use for instance will mitigate violence risk to a degree. Monitoring of intimate relationships will also mitigate to a degree potential problems although cannot prevent in absolute terms potential violence. I am not aware of other treatment or rehabilitation options available other than by way of an ESO. For instance, he would not be appropriate for management under the Mental Health Act, given that he does not have a major mental illness. An ESO would potentially give structure and direction for him to engage in appropriate services around his criminogenic needs, such as substance use and behavioural problems."
Further, Ms Dewson wrote: [90] "To remain offence free in the future, Mr. Bowen will likely need to manage his mental health, refrain from substance abuse, form positive social relationships, manage his emotional reactions and challenge any cognitive distortions. Given his previous difficulties within romantic relationships, it is strongly recommended that Mr. Bowen access professional services to support him transitioning into any romantic relationships (be it from within CSNSW or the community such as Relationships Australia). It is further recommended that he continue to maintain these professional relationships as a means for him to access support during times of conflict or interpersonal difficulty."
The prospect of Mr Bowen pursuing what Ms Dewson referred to there would be greatly enhanced by the Court making an ESO, rather than it declining to do so as a matter of discretion. The potential consequences of there being no order and Mr Bowen regressing in his rehabilitation are too serious. To reiterate, the experts are as one in their assessment of his level of risk. Of particular concern is the assessment of there being a "high risk of spousal abuse in the future". Having regard to the potentially severe consequences of violence perpetrated by Mr Bowen, as demonstrated by past conduct, this is of such importance that leaving it up to him to seek out the assistance he needs is not consonant with community safety.

[52]

Conditions

Schedule A to the initial Summons set out 51 proposed conditions for an ESO. The Amended Summons annexed a Schedule of 48 proposed conditions. After there was some debate at the preliminary hearing concerning various objections, the ISO made by Wright J was subject to 37 conditions.
For the final hearing, the State provided a revised Schedule of 46 conditions in the annexure to the Further Amended Summons. Counsel for Mr Bowen took objection to 21 of them, contending that they should either be deleted or amended.
In consideration of the appropriateness or otherwise of the conditions of such an order, it is necessary to have regard to s 11 of the Act which deals with conditions that may be imposed and, once again, it is essential to bear in mind the paramount consideration of community safety.
The court-appointed experts were each asked for their opinion about the proposed conditions. Dr Martin responded: [92] "My opinion is that while it is likely that the ESO will cause him some stress and potentially could lead to interpersonal conflict, the main weight of his risk of violence relates to his history, personality style and in particular, issues that he has with interpersonal functioning, including but not limited to intimate relationships."
Ms Dewson said: [93] "These conditions appear appropriate. It is recommended that these conditions decrease in restrictiveness over time, specifically in response to positive behaviour and community engagement. No amendments to the proposed conditions are recommended. My recommendations are noted in paragraph 96."
Very detailed and extremely thorough written submissions were provided by counsel for Mr Bowen. They were supplemented by some further oral submissions at the hearing, and counsel for the State provided her response. Having regard to the urgency with which it is necessary to deliver this judgment before I embark upon an extended period of unavailability, I do not propose to discuss the submissions in detail. My reasons and conclusions will be indicated with the assurance that all of the submissions have been considered closely.

[53]

Electric monitoring

The most controversial of the proposed conditions concerned electronic monitoring. This is proposed condition 4 in the Schedule: "The defendant must wear electronic monitoring equipment as directed by the DSO or any other person in the employ of CSNSW supervising him."
The benefits of electronic monitoring were discussed by Mr Corcoran in the Risk Management Report: [94] ● Electronic monitoring would allow Community Corrections and the EEMU to identify any access to known high risk locations, such as may bring him into contact with the Apprehended Violence Order Person In Need Of Protection, and/or locations where "there is real or perceived conflict". ● Electronic monitoring would allow Community Corrections to impose exclusion zones should high risk environments be identified, and to monitor any breach of these zones.
However, Mr Corcoran also wrote: [95] "This strategy (monitoring and schedules) will neither prevent any high risk situations or offending behaviours whilst engaging in an approved activity or in his home".
It is implicit in the way the condition has been stated that electronic monitoring would not be mandatory, but would be something that will be required if the DSO directs.
Ms Kelli Grabham, a senior officer with the Extended Supervision Order Team, provided evidence as to the implementation of ESOs. She said in her affidavit in relation to this condition: [96] "Proposed Condition 4 provides the DSO with the ability to direct the Defendant to wear electronic monitoring equipment. I understand that Proposed Condition 4 is a condition which can be implemented at the discretion of the DSO."
This clearly implies that a discretionary evaluation of the particular circumstances of the defendant is made and a decision then taken as to whether to direct that electronic monitoring be required. However, Ms Grabham annexed a document to her affidavit setting out "the ESO monitoring stages matrix". It provides that there are four "ESO Monitoring Stages" and that: [97] "All ESO offenders must commence their order on ESO Monitoring Stage 1".
Stage 1 involves electronic monitoring. So too do Stages 2 and 3. It is only when a person is progressed to Stage 4 that "No" appears in the "EM" column.
Ms Grabham's affidavit continued with an explanation of how electronic monitoring stages may be "progressed, regressed or varied". There is a "bi-monthly case plan review" as well as a "quarterly case management review meeting". An offender subject to electronic monitoring "will have their case reviewed and the appropriateness of their stage of electronic monitoring will be considered". Ms Grabham added in this context that, "Electronic monitoring is usually relaxed over time". [98]
Ms Grabham was required for cross-examination and I readily acknowledge that she gave her evidence in a very honest and sincere fashion. She conceded that she had said in another case, that "the majority of offenders will stay on Stage 1 between six to 12 months". [99] She also accepted that it "would be unusual for electronic monitoring to be fully withdrawn if a person was halfway through an order", and she agreed that the majority would be subject to such monitoring for at least half their order. [100]
Ms Grabham gave a very detailed answer in order to explain the review process. It is unnecessary to refer to all of the points that she made except to note that in cases where there was support for the withdrawal of electronic monitoring by those more closely associated with the supervision of an offender, "higher management" or ultimately an Assistant Commissioner may still reject any such recommendation. [101]
In re-examination, Ms Grabham confirmed that the time during which Mr Bowen has been subject to electronic monitoring already, pursuant to his parole and now the ISO, would be taken into account in any consideration of whether to impose electronic monitoring under an ESO and, if so, for how long. [102] The prospect that "political consequences" [103] may influence a proper exercise of discretion cannot, however, be discounted.
The court-appointed experts were not in favour of electronic monitoring. Dr Martin agreed that with a proposition that it "will not have the material effect of reducing Mr Bowen's risk of violence". [104] Ms Dewson thought "it's very limited in its effectiveness". [105] Mr Bowen's risk is more associated with situational circumstances occurring in his day-to-day functioning and his difficulty with emotional regulation. Further, the stigmatising effect could be counterproductive, making Mr Bowen more anxious or distressed, thereby reducing the emotional resources available to him to deal with interpersonal scenarios giving rise to actual risk. [106]
Subject to one matter, there is nothing in Mr Bowen's past offending that gives rise to any concern that his risk of offending would be elevated if he attends particular places. In that sense, the case may be contrasted with the more commonly encountered case of a child sex offender where a number of place restrictions should be imposed.
The one exception in relation to place restrictions for Mr Bowen is the local government area of Randwick City Council. It was a condition of parole for the grievous bodily harm offence that he not be within that area and that was to reduce the possibility of him coming into contact with the victim. Electronic monitoring has been used to enforce that exclusion. It is noted, however, that there remains an AVO in place for another 2½ years that includes a condition to similar effect.
I am not persuaded that the inclusion of an electronic monitoring condition - which will most likely be implemented immediately - is warranted in this case. I propose, however, to include conditions that provide that it may be implemented in the event of any breach occurring, at the discretion of the supervising officer. This will be the same as the State has conceded is appropriate for a requirement that Mr Bowen obtain pre-approval of weekly schedules of movements.

[57]

Endnotes

Report, Dr Adam Martin, 28 June 2019, p 7 (Martin Report).
Martin Report, p 7.
Martin Report, pp 12-13.
Martin Report, pp 13-14.
Martin Report, pp 14-15.
Martin Report, p 16.
Martin Report, p 17.
Martin Report, p 18.
Report, Ms Chelsey Dewson, 5 July 2019, pars 11-14 (Dewson Report).
Dewson Report, par 14.
Dewson Report, pars 15-20.
Dewson Report, par 20.
Dewson Report, par 25.
Dewson Report, par 24.
Dewson Report, pars 26-27.
Dewson Report, par 28.
Dewson Report, pars 29-31.
Dewson Report, pars 31-32.
Dewson Report, pars 33-37.
Dewson Report, pars 38-42.
Dewson Report, par 46.
Dewson Report, pars 49-56.
Dewson Report, pars 57-59.
Dewson Report, par 58.
Dewson Report, par 59.
Dewson Report, pars 60-62.
Dewson Report, par 62.
Dewson Report, pars 63-65.
Dewson Report, par 65.
Dewson Report, pars 72-73.
Dewson Report, pars 76-78.
Dewson Report, par 79.
Dewson Report, par 82.
Dewson Report, par 92.
Dewson Report, par 84.
Dewson Report, par 92.
Dewson Report, par 93.
Dewson Report, par 95.
Dewson Report, par 96.
Dewson Report, par 97.
Dewson Report, par 100.
Report, Mr Michael Kirton, 24 July 2019, par 3 (Kirton Report).
Kirton Report, par 4.
Kirton Report, pars 10-11.
Kirton Report, par 14.
Kirton Report, par 20.
Kirton Report, par 22.
Kirton Report, pars 26-27.
Kirton Report, par 31.
Kirton Report, par 23.
Kirton Report, par 29.
Kirton Report, pars 34-36.
Kirton Report, par 26.
Kirton Report, par 30.
Kirton Report, at Conclusions and Future Prognosis.
Kirton Report, at 35.
Kirton Report, Q5.1.
Kirton Report, Q7.
Kirton Report, Q7.
Referred to in Affidavit, Kelli Grabham, 18 July 2019, at par 20 & Annex C/
Referred to by Ms Cieplucha at par 65.
Referred to by Ms Cieplucha at par 67.
Martin Report, p 15.
Dewson Report, par 37.
Kirton Report, par 29.
Kirton Report, par 33.
Kirton Report, p 20.
Cieplucha Report, pars 73-75.
Martin Report, p 14.
Dewson Report, par 82.
Dewson Report, par 84.
Cieplucha Report, par 82.
Martin Report, p 13.
Martin Report, p 13.
Dewson Report, par 31.
Martin Report, par 16.
Dewson Report, par 48.
Martin Report, p 13.
Kirton Report, p 15.
Kirton Report, p 20.
Kirton Report, p 21.
Kirton Report, p 17.
Martin Report, p 17.
Dewson Report, par 28.
Dewson Report, par 58.
Dewson Report, pars 63-65.
Kirton Report, p 18.
Tcpt, 7 August 2019, pp 71-72.
Martin Report, p 16.
Dewson Report, par 88.
Kirton Report, p 24.
Martin Report, p 17.
Dewson Report, pars 97, 99.
Corcoran Report, p 8.
Corcoran Report, p 8.
Affidavit, Kelli Grabham, 18 July 2019, pars 26-27.
Ibid, annexure E.
Ibid, pars 29-31.
Tcpt, 7 August 2019, pp 40-41.
Tcpt, 7 August 2019, p 42.
Tcpt, 7 August 2019, p 42(24).
Tcpt, 7 August 2019, p 50-51.
Tcpt, 7 August 2019, p 58(3)
Tcpt, 7 August 2019, p 21(7).
Tcpt, 7 August 2019, p 21(11).
Tcpt, 7 August 2019, p 21.
Defendant's written submissions, par 112.
Martin Report, p 18; Dewson Report, par 100. 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: 09 August 2019

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Judgment (57 paragraphs)

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