State of New South Wales v Bowen

Preliminary hearing - applicable provisions and principles

1. A preliminary hearing was conducted in accordance with s 7(3) of the HRO Act on 3 May 2019 before me. The orders sought at this preliminary hearing were for examinations under s 7(4) and the ISO, in addition to order 4.
2. At such a preliminary hearing, it is not for the Court to weigh up the documentation provided in support of the making of interim orders, to consider what evidence the defendant might call at the final hearing, or to seek to predict the outcome of the proceedings for final orders: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], and State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 (McGee) at [10]. Rather, the Court is to engage in an evaluative exercise, taking into account all of the supporting documentation (and such material as has been tendered by Mr Bowen) and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO: McGee at [10]. If so, an ISO and examination orders may be made: ss 7(4) and 10A(b) of the HRO Act.
3. In McGee at [10], it was also noted that, although the approach of the Court at a preliminary hearing has been likened to applying a "prima facie case" test, a more accurate formulation, consistent with the test in s 5B(d), is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That obliges the State to allege certain facts which, if proved, would lead to a conclusion that the making of an ESO would be justified: see also State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [17] and [18].

Preconditions for the application

1. Mr Bowen, through his counsel, accepted that the following preconditions, necessary to enliven the Court's power to make relevant orders under the HRO Act, were established: 1. Mr Bowen is above 18 years of age and has been sentenced to imprisonment to be served by way of full-time detention following a conviction for a "serious offence" namely a "serious violence offence" within s 5A(1)(a)(i): s 4A; 2. Mr Bowen is an offender who is serving a sentence of imprisonment for a serious offence: s 5B(a); 3. He is a supervised offender, within the meaning of s 5I(2)(a)(i): s 5B(b); 4. The application has been made in accordance with s 5I: s 5B(c); 5. The application has been made within nine months of Mr Bowen's parole order expiring: s 6(1); 6. The application is supported by the required documentation: s 6(3); 7. Mr Bowen's current parole supervision will expire on 31 May 2019, that is, before the proceedings are finally determined for the purposes of s 10A(a).

Evidence

1. The supporting documentation relied upon by the State on its application for an ISO and the examination order was as follows: 1. the affidavits of Ms McCrossin affirmed 29 January 2019 (and exhibit KM1), 1 April 2019 (and exhibit KM2) and 1 May 2019; 2. the affidavit of Ms Cieplucha affirmed 1 April 2019; and 3. the affidavit of Ms Hughes affirmed 3 May 2019.
2. The material relied upon by Mr Bowen included the affidavit of Mr Carter affirmed 18 April 2019.
3. In addition to Mr Carter's affidavit, Mr Bowen tendered a one page document, headed "New South Wales Department of Corrective Services Case Note Report" dated 2 May 2019 and described as page 1 of 24. It became exhibit 1. At the hearing and effectively on the joint application of Ms Graham, of counsel, who appeared for Mr Bowen, and of Mr Aitken, of counsel, who appeared for the State, I made an order under s 126E(b) of the Evidence Act 1995 (NSW) in the following terms: "The last 12 lines of exhibit 1 on this application not be published or further disclosed to any persons other than the legal representatives of the parties, subject to any further order of the Court. Note: This order does not prevent the disclosure of the information in the last 12 lines of exhibit 1 by the Department of Justice or the Department of Corrective Services for the purposes of the ongoing treatment, assessment and case management of the defendant."
4. At that time I said that I would provide reasons for making that order in my judgment dealing with the preliminary hearing as a whole. My reasons for making that order are as follows. It was not in dispute and I am satisfied that the person who created the relevant portion of exhibit 1 was a psychologist involved in the care and treatment of Mr Bowen. The information recorded in the last 12 lines of exhibit 1 had been communicated to her by Mr Bowen in the course of a relationship in which the psychologist was acting in a professional capacity in circumstances where she was under an obligation to keep that information confidential and not to disclose it, except for the purposes of the ongoing treatment and care of Mr Bowen, including his assessment and case management.
5. The relevant provisions of the Evidence Act include the following: "126A Definitions (1) In this Division: harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. protected confider means a person who made a protected confidence. … (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is necessary to facilitate communication. 126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section. … 126E Ancillary orders Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, the court may: (a) order that all or part of the evidence be heard in camera, and (b) make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of the protected confider."
6. It is not clear from the material before the Court whether the information was communicated in a group setting or individually. Nonetheless, if the communication was in a group setting, and therefore in the presence of third parties, the purpose of the group and the communication was directly related to the psychological treatment and therapy of Mr Bowen. I am satisfied that if third parties were present, their presence was part of the treatment and therapy regime and was, given the type of treatment and therapy in question, "necessary to facilitate communication" within the meaning of s 126A(2) of the Evidence Act.
7. In all the circumstances referred to above, the information in the last 12 lines of exhibit 1 was a "protected confidence" within the meaning of that phrase in s 126A.
8. Under s 126B(3), I would have been required to give a direction that such evidence not be adduced if satisfied that: 1. it was likely that harm would or might be caused (whether directly or indirectly) to Mr Bowen if the evidence was adduced, and 2. the nature and extent of the harm outweighed the desirability of the evidence being given.
9. Mr Bowen's counsel, Ms Graham, submitted that in this case it was likely that harm might be caused to him if the evidence were adduced, but the nature and extent of the harm did not outweigh the desirability of the evidence being given, if the potential for harm could be appropriately minimised by an order preventing publication of the information under s 126E. Mr Aitken did not take issue with those submissions. He did, however, contend that the information should be given little if any weight, in the light of other material before the Court.
10. Having regard to the nature of the information and the psychologist's expert opinion recorded in the case note report, I accept that there is relevant potential for harm but that the desirability of the evidence being before the Court outweighs that potential, provided an order under s 126E is made limiting the disclosure of the information in question. Accordingly, I made the orders set out above in relation to exhibit 1. What weight should be given to that information is a matter to be considered in the light of all the supporting documentation and other material before the Court.
11. Exhibit 1 has been placed in a sealed envelope with a note of the order under s 126E, and a redacted version of the exhibit has been included with the papers.

The State's supporting documentation

1. The State's supporting documentation contains allegations which can be adequately summarised for present purposes as set out in the following paragraphs.

Mr Bowen's background

1. Mr Bowen was born in 1967 of Aboriginal and Italian descent, and is the eldest of two children from his parents' union. His formative years were characterised by parental substance misuse, conflict and violence, emotional neglect, physical abuse, abandonment and paternal mental illness. His parents separated when he was about three or four years old and he remained in the care of his mother for some time, prior to being "kidnapped" by his father and taken to Perth, Western Australia. Mr Bowen was subsequently placed in the care of the welfare system, including foster care, as a result of his father's mental illness. He was returned to his mother's care at about the age of eight but his mother had a history of alcohol and substance abuse and she formed relationships with men who were violent and involved in criminal activity. His mother struggled to manage his behaviour and, as a result, Mr Bowen returned to live with his father and stepmother when he was about 13. Following his father's admission to a mental health facility within about two years, he returned to his mother's care. Feeling unwanted and neglected by his mother he left home at about the age of 14. Thereafter, he lived with the parents of a childhood friend whom he considered to be his foster parents. His foster father passed away in 2010 and his foster mother died only recently.
2. Mr Bowen had a difficult educational experience which was characterised by problematic behaviour, peer rejection and bullying. He left school prior to completing year 10. He failed to complete an apprenticeship as a pastry chef when he was about 16 years old and his work history was characterised by a number of casual positions in addition to longer term employment within the hospitality and catering industries.
3. Mr Bowen's relationship history appears to have been largely dysfunctional and characterised in numerous instances by alcohol abuse, infidelity, arguments and aggression. The termination of a relationship which had lasted for approximately 4½ years from 1992 appears to have been the catalyst for a significant decline in his mental health and emotional stability and a trigger for excessive alcohol consumption and his becoming depressed and suicidal.

Offending history and related matters

1. Mr Bowen's history of offending commenced in 1982 when he was 14 years old and involved a charge of attempted stealing. He was released on 12 months' probation to be of good behaviour in relation to an offence of break and enter with intent in 1985. In 1986, he was sentenced to 150 hours of community service and disqualified from driving for 12 months in respect of offences of taking and driving a conveyance and driving in a manner dangerous. Between 1989 and 1993, there were other offences including midrange prescribed concentration of alcohol (PCA), malicious damage, breach of reconnaissance, possessing a prohibited drug, and driving whilst disqualified.
2. His history of violent offending began in 1998 when he was convicted of assault occasioning actual bodily harm for which he was sentenced to 125 hours of community service. This resulted from an assault on his mother and occurred within the context of depression and increasing alcohol and cannabis use and following an argument over money. About eight months later, in 1999, he was again convicted of assault occasioning actual bodily harm, in the context of alcohol consumption, when he assaulted a 55-year-old man whom he accused of staring at him.
3. On 4 September 1999, the accused murdered a 66-year-old man. On 11 November 2000, he pleaded guilty to the charge of murder. Howie J, in his sentencing remarks, described the evidence and circumstances of the murder as follows: "The victim … was at the time of his death the owner and manager of a caravan park on the central coast near Woy Woy. The deceased lived on that site in a brick house. He was found dead in his home by police on 4 September 1999. He had apparently been beaten to death with a wooden baton and set of fire tongs, both of which were found near his body. The deceased's bicycle was lying on top of him. Some of the rooms in the house had been ransacked and in one of them was found in an empty bag in which the deceased used to collect rent money from persons living at the caravan park. The deceased had collected over $4000 in rent the day before he was found dead. An autopsy revealed that there were a number of fractures to the deceased's skull and fracturing of his lower ribs on both sides of his chest. He also suffered a broken finger. There were approximately 24 lacerations to his head and multiple bruising over the whole of his body. The cause of death was a brain injury suffered as a result of a fracture to his skull. [Mr Bowen] [wa]s a 33-year-old man who lived at the caravan park from March 1999. Initially he had resided in a flat in the deceased's home and worked for the deceased at the caravan park doing general maintenance work. In May 1999 he moved into a bedroom in the main part of the deceased's home. While the deceased was absent overseas for a period of two weeks, [Mr Bowen] managed the caravan park on behalf of the deceased. After the deceased returned from holidays he became concerned that [Mr Bowen] was stealing money from him. In June 1999 the deceased told an acquaintance that he had sacked [Mr Bowen] after warning him about stealing money. In July 1999 [Mr Bowen] commenced a relationship with [M1], a lady whom he had met earlier that year and who was living in the caravan park. She was separated from her husband. On 25 August [Mr Bowen] moved out of the flat in the deceased's home and went to live with [M1] in her caravan. It seems clear that after he was sacked by the deceased, [Mr Bowen] formed a belief that the deceased owed him money. From time to time the prisoner would tell [M1] that the deceased "owed him". [M1] would attempt to disabuse him of this belief and tell [Mr Bowen] that the deceased had done enough for him. At about this time [Mr Bowen] remarked to a friend in the caravan park how easy it would be to take the money bag from the deceased after he collected the rents. [Mr Bowen] said "I wouldn't mind doing that one day". [Mr Bowen] told his friend that the deceased collected about $5000 a week. On 1 September there was a verbal altercation between [Mr Bowen] and the deceased over an allegation that [Mr Bowen] had been hassling another resident of the caravan park. During their argument [Mr Bowen] threatened to obtain a knife and kill the deceased and also to rob the deceased of the rent money when he collected it the following Friday. [Mr Bowen] also made an allegation that the deceased had sexually assaulted him, which allegation the deceased denied. After the deceased had left the area of [M1]'s caravan, [Mr Bowen] said to [M1] in relation to the allegation of sexual abuse, "it's the only way I can have it over him to get what owed to me". [Mr Bowen] also told a [M1] on this occasion that he did not like Ms Deamon, a female resident of the caravan park, and that he was going to kill her because he was not happy with [M1] keeping company with her. He said that he would break into her house and he would kill anyone who was there. [Mr Bowen] then said to [M1], "if I don't rob [the deceased] I'll kill him. I'll kill him for the money and what he owes me". On 2 September, after [Mr Bowen] had left [M1]'s caravan to go to work, [M1] wrote a note to [Mr Bowen] telling him that she did not want him to live in her caravan any longer. Later that day the deceased told her that she should pack [Mr Bowen's]'s belongings and leave them outside the caravan. This [M1]'s did and she then left the caravan park to avoid confronting [Mr Bowen]. That evening, when [M1] rang her van, [Mr Bowen] answered. [M1] then disconnected the call without speaking to [him]. The next morning [M1] returned to her caravan and found that her motor vehicle was missing. She packed some more of [Mr Bowen]'s property and place it outside the caravan with a note telling him to leave. [M1] then left her caravan and went to stay at the home of a friend until the evening. The same day, three September, the deceased asked a friend of [Mr Bowen] to vacate his caravan as the deceased did not want there to be any reason for [Mr Bowen] to return to the caravan park. [Mr Bowen] Foster VS friend left [Mr Bowen] a note indicating he was looking for somewhere to live because the deceased wanted both him and [Mr Bowen] out of the caravan park. This note was found in [M1]'s vehicle after [Mr Bowen] was arrested. On the afternoon of three September [Mr Bowen] was offered temporary accommodation with a friend, Martin White. That evening [Mr Bowen] arrived at the home of Mr Wells and consumed a couple of beers. [Mr Bowen] and Mr Wells then travelled to the home of Mr White in [M1]'s motor vehicle to drop off some of [Mr Bowen]'s clothes. [Mr Bowen] consumed another beer there before returning to Mr Wells' home. [Mr Bowen] and Mr Wells purchased a carton of beer on the way. After their return to Mr Well's home [Mr Bowen] told Mr Wells that he had $400, 200 of which he obtained from the deceased. [Mr Bowen] said, "I asked him for money because I needed it to move and find a house and I just took it off him. He didn't owe me that much, but I just took it." [Mr Bowen] left Mr Wells residence at about 8:30 PM, saying that he was going to make a telephone call. Mr Wells was the opinion that, before [Mr Bowen] left his home, [he] had consumed about six beers and did not appear to be affected by alcohol. At about 9:30 PM the deceased spoke to Ms Meura, a friend who had telephoned him at his home. During the course of that conversation the deceased told her that he had to arise early the next morning as he was to pick up a friend from the airport. He also told Ms Meura that he was frightened of [Mr Bowen] and would keep a large stick in case [he] came to his premises. At about 11 PM that evening [M1] received a telephone call from [Mr Bowen]. He told her that he was coming over to see her. When [M1] told him not to come, [Mr Bowen] threatened to break the door down if she did not allow him inside. [M1] then terminated the call left the caravan park. She sought refuge in the home of a friend and contacted the police. At about midnight [M1]'s vehicle was seen being driven towards the caravan park. In the early hours of the morning of four September Mr White was woken by [Mr Bowen] who arrived at his home. [Mr Bowen] thanked Mr White for his help and then left. At the time [Mr Bowen] was holding the deceased's dog. Mr Wells was also woken early that morning by [Mr Bowen]. Mr Wells noted that [he] had changed his clothes from those he was wearing the evening before. [He] had the deceased's dog with him. [Mr Bowen] said to Mr Wells, "I've just bashed this bloke. I bash this bloke bad stop I don't know what I done stop I'm going to throw the dog off the rip bridge." … Also in the early hours of four September [Mr Bowen] telephoned Ms Deamon and told her he was going to gaol because he had murdered someone. He also threatened to come and slit her throat. Ms Deamon asked [him] whether he had murdered [M1], and [he] told her not to be stupid because [M1] was at her place. Ms Deamon thought [he] sounded drunk and did not take him seriously. However, [Mr Bowen] telephoned her again a short time later and said to her, "You know what Lyn, you want to know who I murdered? I just murdered [the deceased]. I smashed his head that bad that my hands caved in to his head, and am coming to get you next. I'm going to the police and tell them what I did. I have got a Baretta and am going to shoot them all." [Mr Bowen, at the time of his arrest later that morning,] said to the arresting police, "I was going to give myself up and I was too drunk to drive, the poor old bugger." … Dr Westmore, a psychiatrist, in a report dated 2 December 1999, indicate[d] that [Mr Bowen] told him that he did not have a good memory of what occurred the night of the murder because of the effects of alcohol and cannabis upon him. … [The learned sentencing judge was] satisfied that the offence occurred when [Mr Bowen] in an intoxicated state and under the influence of cannabis went to the deceased's residence after waiting in vain for [M1] to turn up at her caravan. He wanted to obtain money from the deceased, and [his Honour believed] that he intended to use threats or force if necessary to obtain it. I think it is likely that the deceased put up some resistance and it could well be that he struck at [Mr Bowen] with some implement when [Mr Bowen] would not leave his home. [Mr Bowen] retaliated in a frenzied attack upon the deceased, striking him repeatedly around the head and upper body with objects which came to hand until the deceased was dead. [Mr Bowen] then searched through the house for money. Whether or not [Mr Bowen] actually found the money from the deceased is irrelevant. [Mr Bowen] then showered and changed into clothes which he had with him in [M1]'s motor vehicle. … "
4. For the murder, Mr Bowen was sentenced to 18 years' imprisonment, dating from 4 September 1999, with a non-parole period of 13 years and 6 months, which expired on 3 March 2013.
5. Mr Bowen was released to parole on 4 June 2013. His parole was revoked and he returned to custody approximately four months later following a charge of common assault (in a domestic violence context) and two charges of sexual intercourse without consent, alleged to have occurred on 24 October 2013. On 16 September 2014, Mr Bowen was found not guilty on the charges of sexual intercourse without consent and the common assault charge was withdrawn and dismissed.
6. Mr Bowen was released to parole again on 25 December 2014.
7. On 25 June 2015, Mr Bowen caused grievous bodily harm to another victim, whom I shall identify as V1, reckless as to causing her actual bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). He pleaded guilty and was sentenced on 27 January 2017 by Baly SC DCJ to imprisonment for 3 years and 5 months commencing on 1 January 2016. The sentence will expire on 31 May 2019. The non-parole period was 2 years and 3 months and expired on 31 March 2018.
8. The statement of agreed facts signed by Mr Bowen revealed that Mr Bowen and V1 had known one another for about 10 years and he had moved into her unit on 25 December 2014 when he was released on parole. They commenced a relationship very shortly thereafter. The relationship was volatile and they argued with one another from its inception. Within weeks of the start of the relationship, Mr Bowen assaulted V1 and he did so on numerous occasions in the months that followed, causing bruising and swelling to the victim's face. The agreed facts continued in the following terms: "3. At about 1 PM on Thursday, 25 June 2015 the victim was driving along Beach Road in Maroubra when she drove past [Mr Bowen] who was walking along the footpath. The victim stopped her car. She got out of the driver's seat and got back into the front passenger seat. The offender got into the car and sat in the driver's seat. 4. Immediately after entering the vehicle [Mr Bowen] started to yell at the victim that she was late picking him up. The victim, in turn, yelled at [Mr Bowen]. They continue to yell at one another as [he] drove off. 5. When the victim re-entered the car she put her seatbelt on. As soon as she did so [Mr Bowen] began to punch her. [He] punched the victim a number of times to her forehead, eyes and the left side of her face and mouth. [Mr Bowen] punched the victim as he drove. He had his right hand on the steering wheel and used his left hand to punch the victim. The punches were backhanded and with closed fist. [Mr Bowen]'s knuckles made contact with the victim's face. 6. The first punch struck the victim in the mouth. She felt a number of her teeth fall out. It felt to the victim as though they had fallen out of the centre of her top gum. They fell onto her lap before falling onto the floor. 7. [Mr Bowen] drove to the victim's home. He stopped in the driveway of the unit complex and the victim got out. He drove off. …"
9. This offence, contrary to s 35(2) of the Crimes Act, committed on 25 June 2015, is the index offence for the purposes of these proceedings.
10. Mr Bowen's attitude to the index offence has oscillated. Initially he denied responsibility for his actions, claiming that the allegations against him were spurious. Later, he pleaded guilty and commented at about this time to the effect that it was something that should not have happened and no one deserves to be hit regardless of who they are. More recently, however, Mr Bowen appears to have apportioned blame to the victim and minimised his own responsibility but at the same time he has expressed regret for his actions and said that he knew he did the wrong thing, that he couldn't believe it, and that he thought he was better than that.
11. On 26 June 2015, police applied for and were granted a provisional AVO against Mr Bowen for the protection of V1. The terms of the AVO prevented him from approaching or contacting the victim except through his legal representatives but this did not deter him from contacting V1. A final order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was made by Baly SC DCJ on 27 January 2017. That order was made for five years and expires on 26 January 2022. It is in the following terms: "ORDERS ABOUT BEHAVIOUR 1. a) the defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. b) the defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. c) the defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. ORDERS ABOUT CONTACT 2. The defendant must not approach the protected person or contact them in any way, unless through their lawyer."
12. A slightly revised version of these orders was made on 20 June 2017.
13. Mr Bowen was released to parole on 25 September 2018. As noted above, the sentence in respect of the index offence will expire on 31 May 2019.

Psychologist's risk assessment report

1. On 21 November 2018, Ms Cieplucha, Chief Psychologist, Risk Management Programs, prepared a risk assessment report in relation to Mr Bowen, concerning the risk of his committing a further serious offence absent supervision. Ms Cieplucha noted Mr Bowen's offending history and his dysfunctional upbringing. She said that Mr Bowen demonstrated difficulty managing the complexities of interpersonal and intimate relationships, which have been characterised by substance abuse, anger and violence. He also demonstrated a poor response to community supervision, having breached the conditions of his parole order with substance use and violent offending.
2. Ms Cieplucha recorded that Mr Bowen was released to parole on 26 September 2018 to reside at the Campbelltown Integrated Support Centre (ISC). He had generally been compliant since his release, had obtained accommodation in a one-bedroom studio apartment from 1 December 2018 and had been accessing psychological support to manage stressors. She also noted that, at the time of her report on 21 November 2018, Mr Bowen had been employed driving trucks with a fencing company for approximately six weeks.
3. Ms Cieplucha said that Mr Bowen did not appear to have a diagnostic history of serious mental illness such as psychosis, but he had experienced depression over the years mostly in response to situational stressors, such as relationship breakdown, unemployment and conflict with others. There also appeared to be a strong association between Mr Bowen's depression and substance abuse, especially cannabis.
4. Mr Bowen had engaged with a community psychologist following his release to the community in 2015.
5. His level of intellectual functioning was reported as being in the low average range and his non-verbal reasoning was found to be in the average range with below average verbal skills.
6. There was some suggestion that Mr Bowen evidenced characteristics of borderline personality disorder with the presence of antisocial personality characteristics. When he was reassessed in 2016 prior to his sentencing for the index offence, Mr Bowen's responses at that time highlighted issues with anxiety, dysthymia (reactive depression), substance dependence and major depression. Consistent with previous assessments, his profile also indicated antisocial, depressive and dependent patterns, in addition to elevations in relation to borderline personality pathology.
7. Ms Cieplucha noted Mr Bowen's significant substance abuse history and the primary role of alcohol in some of his violent offending, but she also noted that he has remained largely abstinent from substance use over the course of his incarceration and that there did not appear to be any identified instances of substance abuse since Mr Bowen's release to the community, especially when he was employed driving large trucks.
8. Ms Cieplucha set out details of the offender programs with which Mr Bowen had been involved, including, but not limited to: 1. The Getting SMART Program that is designed to address alcohol and other drug use. Mr Bowen completed this program in October 2008 and engaged in SMART Recovery sessions in 2011, in addition to addiction support in 2011-2012 and Alcoholics Anonymous groups in 2014. 2. The Controlling Anger and Learning to Manage it (CALM) Program which Mr Bowen completed in May 2009. 3. The Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Program of which Mr Bowen completed EQUIPS Foundation on 20 December 2016, EQUIPS Aggression on 21 September 2016 and EQUIPS Domestic Abuse on 30 June 2017. His program facilitator's comments included: "He appears to have gained some insight into his behaviour and understands the different strategies he can use to reduce his levels of emotions and when there is a trigger.… He appears to want to change and seems to be making positive improvements to make these changes happen. He has also challenged his core beliefs and has started using positive measures to challenge the unhelpful thoughts and beliefs". 1. The Violent Offenders Therapeutic Program (VOTP) in which Mr Bowen had participated from 13 September 2017 to 17 May 2018. His program participation was described as satisfactory with him making modest gains in relation to his insight and acceptance of responsibility. 2. The VOTP Maintenance program where Mr Bowen attended one group session on 11 July 2018 prior to his release on parole on 25 September that year.
9. As to the risk of Mr Bowen reoffending, Ms Cieplucha referred to Mr Bowen's previous assessments using the actuarial risk instrument, known as Level of Service Inventory - Revised, or LSI-R. These assessments indicated a medium risk level of general and violent recidivism within 12 months post-release. His assessments using the Violence Risk Scale or VRS, which is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, were also considered. Ms Cieplucha scored the VRS in relation to Mr Bowen and, consistent with the previous assessments, the overall result of the VRS estimated Mr Bowen's risk of being convicted of further violent offences as being within the medium risk range.
10. Mr Bowen's criminogenic needs were identified as substance abuse, relationship instability, poor mental health and emotional coping, violence cycle/violent lifestyle/interpersonal aggression/emotional control, criminal attitudes, cognitive distortions, and poor compliance and supervision.
11. The risk scenarios for Mr Bowen were identified as including interpersonal relationships and, in particular, intimate relationships, especially where there was a real or perceived conflict, when his views were challenged, or when he felt the need to assert his dominance or have his needs met. The potential for violence was heightened when he was experiencing stress or conflict in his relationships. When he had difficulties coping and managing life stressors, such as financial hardship, unemployment, or accommodation difficulties, there was potential for his mental health to deteriorate, most likely in the form of depression, prompting him to employ maladaptive coping 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 of violence, with there being a greater tendency for impulsive, reactive and explosive aggression when disinhibited by the effects of intoxication or substance use.
12. As to the potential protective factors and community supports, Ms Cieplucha noted that he spoke to his mother daily on the telephone and he was in regular contact with one of his brothers and had seen him on one occasion. He also had a friend in Queensland with whom he reportedly maintained contact. It was noted that Mr Bowen has generally displayed a positive work ethic and had, at the time of the report, obtained employment. Employment was considered protective as it would provide Mr Bowen with a focus and increase self-esteem.
13. Ms Cieplucha's overall risk assessment was that, on the VRS, Mr Bowen was in the Medium range and, on his most recent LSI - R, was in the Medium-High range. In conclusion it was stated that: "Successful risk management would involve containment of behaviours associated with risk.… Based on the identified risks specific to his violent offending, continued support and intervention in relation to Mr Bowen's mental health and emotional coping, relationships and substance abuse would be critical in preventing relapse to maladaptive behaviours. 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. … Given his lengthy history of incarceration and previous issues when transitioning to the community following release, Mr Bowen will require a high level of support to assist with his adjustment and development of independent living skills. He has demonstrated an eagerness to work since his release and ongoing employment will assist in providing him with structure and routine, independence and increase self-esteem. …"
14. In her affidavit, Ms Cieplucha noted that, when assessing his risk of reoffending, she had taken into account the charges against Mr Bowen of sexual intercourse without consent, of which he was found not guilty, and the charge of assault, which was withdrawn. She said that this was appropriate and the charges were relevant in this context. Further, even if those charges were not taken into account, it would not cause her to alter her assessment of Mr Bowen's risk of being convicted of a violent offence, on the VRS.

Risk management report

1. On 20 December 2018, Mr Marc Corcoran, Senior Community Corrections Officer, provided a risk management report concerning Mr Bowen. The purpose of the report was to inform the Court as to the extent to which Mr Bowen could reasonably and practically be managed in the community, as specified in s 9(3)(d1) of the HRO Act.
2. Mr Corcoran provided information as to the prior management of Mr Bowen by Community Corrections, especially concerning his release on parole and the revocations of the parole orders in 2013, 2014 and 2015, referred to above.
3. Although it was noted that Mr Bowen had displayed aggressive behaviour and defiant attitudes towards the Campbelltown ISC staff, these had gradually improved and he now responded in a more constructive manner when attitudes or behaviours were challenged. It was also noted positively that Mr Bowen had commenced employment as a truck driver in October 2018 and he had entered independent long-term accommodation on 29 November 2018. Since his release on parole in 2018, His case management had focused on monitoring his compliance with the conditions of his parole order and integration into the community. It was noted that he had not loitered in his exclusion zone, had undergone numerous instances of breath analysis with negative results, had engaged with the VOTP Maintenance program, had commenced contact with a private psychologist and there had been no reports of his contacting the victim or their family. Mr Corcoran also noted the assessments of Mr Bowen's risk of reoffending and the risk factors or criminogenic needs, to which Ms Cieplucha referred.
4. Mr Corcoran identified the elements of a Risk Management Plan for Mr Bowen so that he could be reasonably and practically managed in the community. Mr Corcoran identified the risks to be managed or monitored under each element and explained why the nature of the management or monitoring was required in Mr Bowen's specific circumstances. I have taken all of this material into account but it is sufficient to note the following matters here, generally under the headings used by Mr Corcoran.

Interviews with Mr Bowen

1. These would be weekly face-to-face interviews with Mr Bowen at his approved residence or another location. The interviews would focus on reviewing and reinforcing his self-management plan and identifying and addressing risk factors should they arise. Should Mr Bowen enter into a relationship it was proposed that the person would be used as a third-party contact to assess stability and concerns. The interviews would also be used to monitor for signs of relapse into the use of alcohol or other drugs and for signs of relationship conflict or breakdown, loss of social supports, unemployment, housing issues and financial difficulties. The limitation on the effectiveness of this element was that Mr Bowen might be guarded and mistrusting which might reduce the effectiveness of the interviews.

Field visits

1. Field visits would include scheduled and unannounced home visits, other field visits and surveillance by the ESO Investigation Team (ESOIT), conducted at least once per month. These would allow detection and mitigation of risky behaviours. The limitations of this strategy were that Mr Bowen could not be monitored 24 hours per day and he may engage in inappropriate behaviour when not being monitored.

Third-party contacts

1. Contact would be maintained with various stakeholders involved in Mr Bowen's management including VOTP, ESOIT, Corrections Intelligence Group, private community psychologists and other treating professionals, as well as Mr Bowen's social supports. These third-party contacts would be made on a weekly basis to monitor his progress, coping and compliance with order conditions.

Monitoring, schedules and curfews

1. Electronic monitoring would assist in managing Mr Bowen's movements, and ensure his adherence to a schedule of movements in order to allow oversight of Mr Bowen's warning signs, risk issues and patterns of behaviour that may raise concerns. Electronic monitoring would also allow the identification of access to known high risk locations including, for example, where he might come into contact with the person in need of protection under the AVO. The submission of weekly schedules of movements was thought to be useful in assisting and encouraging Mr Bowen to plan intervention attendance and pro-social activities. The limitation on this element was that it could prevent neither high-risk situations nor offending behaviours, whilst he was engaging in an approved activity or in his home.

Referral to psychological and psychiatric services

1. Referral to psychologists and psychiatrists would assist to address psychological or psychiatric issues identified as a result of other elements of the plan.

Referral to alcohol and other drug services and alcohol and other drug testing

1. Such referrals and testing would also assist to prevent and address issues concerning alcohol and illicit drug use that have been identified in the past and may arise in the future, especially if stressors are present.

Non-association and place restrictions

1. Such restrictions would be directed to compliance with the conditions of his AVO and in order to prohibit him from entering or loitering in areas identified as being high risk in terms of his offending, his relapse into substance use or his being exposed to "real or perceived conflict". The restrictions might also include providing details of electronic communications devices and applications.

Other limitations and review

1. The report properly noted that there were other limitations on the effectiveness of the elements identified above. It is not, however, necessary to set them out in detail here.
2. The risk management plan, following implementation, would be scheduled for review every two months and updated as necessary to reflect any significant changes to Mr Bowen's circumstances.

Other material provided by the State

1. The State's evidence also included a substantial amount of documentation concerning Mr Bowen's involvement in the criminal justice system, his incarceration, and his release into the community, at various times. Nothing in this documentation was drawn to my attention by either party as being inconsistent with the evidence of Ms Cieplucha and Mr Corcoran. The documentation, to which I was taken or which I reviewed, supported their views and conclusions.

Mr Bowen's material

1. The evidence led on Mr Bowen's behalf included: 1. Mr Carter's affidavit which dealt with Mr Bowen's psychological state as disclosed in the report of Mr Kirton, and his employment as disclosed in the letter from TFH Hire Services; and 2. Exhibit 1 concerning Mr Bowen's psychological state.

Psychological state

1. As part of the VOTP Maintenance program, Mr Bowen attended a group session on 6 February 2019. The case note report, which is exhibit 1, recorded: "[Mr Bowen] reported that he is experiencing a number of challenges at the moment and presented as deflated. He reported that his mother died recently, and he had applied to see her while she was still alive but this was rejected by parole. He also advised that while he was permitted to attend the funeral, the funeral ran longer than expected and then he did not have time to stay back and talk to some of the people who attended as he had to be back at certain time. [He] also advised that he is experiencing stress due to him being considered for an ESO. He said it is impacting his sleep, eating and overall motivation. [He] reported that with the ESO pending it is as though all the positive things that he has been doing (working, complying with parole conditions, getting his own place etc) participating in the violent risk assessment, are not being considered as worthwhile or signs of rehabilitation. [He] acknowledged that because of his ongoing grief from the recent death of his mother, it is making it harder for him to accept/deal with the stress that is caused by the possibility of an ESO. [He] admitted and identified that while he is experiencing negative thinking, he is able to challenge it by reminding himself of the likely consequences. [Mr Bowen] reported that he has sought legal advice and is also seeing a psychologist externally. …"
2. Based on this material and the other matters referred to in the last 12 lines of exhibit 1, I accept that the prospect of an ESO, and the occurrences in relation to the funeral, caused stress and potentially serious adverse consequences for Mr Bowen, in early February 2019.
3. However, Mr Bowen also relied on a report dated 12 April 2019 from his treating psychologist, Mr Kirton. Mr Bowen's treatment plan in therapy and counselling as outlined in October 2018 included the following: "• Using a strategic interventions including CBT, to learn to manage stress in effective psychological ways. Dealing with angry thoughts and thinking. (Cognitive Behaviour Therapy), Mindfulness Training, Guided Imagery and REBT (Rational Emotive Behaviour Therapy). These are all evidence-based treatment models for dealing with the issues with anxiety and the related problem with alcohol consumption. • Reframe perfectionistic thinking and learn ways to moderate the effects in real life situations especially in close personal relationships. • Trauma focused counselling for Post Traumatic Stress Disorder which began in early childhood and adolescence. • The outcomes expected would include: • Positive thinking and mood. • Stress management and control of his emotions at stressful times. • Free of anxiety and past memories related to PTSD. • Life planning and future goals are laid out with clear intentions to remain trouble-free with the law. The plan for the treatment of Mr Bowen is as follows: 1 Attend with Michael Kirton, Clinical Psychologist, every fortnight for counselling appointments and actively engage in the therapeutic process outlined above. 2 Maintain regular contact with his Doctor and take any psychotropic medication if prescribed or needed, and carefully follow the reasonable directions of the Doctor."
4. Mr Kirton reported that Mr Bowen had attended counselling on a regular fortnightly basis since the treatment plan was initiated and that he rarely cancelled appointments and he completed homework assignments. Specifically it was noted that Mr Bowen attended counselling on 11 occasions during the five months from 8 November 2018 to 11 April 2019, even though the practice was closed during December 2018 and to 25 January 2019.
5. Mr Kirton's opinion was that Mr Bowen had been conscientious in completing the task-oriented psychological strategies to manage his personal consciousness differently and had achieved some success in resolving stress issues and modifying his thinking style. In addition, at Mr Bowen's request, Mr Kirton has agreed for further counselling to continue until the end of 2019, at least, and further into the future if that is warranted. If Mr Kirton became unavailable, Mr Bowen could receive treatment from another psychologist at the practice, as arranged.
6. It can be observed that, despite what was raised by Mr Bowen in the VOTP group session on 6 February 2019, Mr Kirton does not refer to any deterioration in Mr Bowen's psychological condition at or from that time. Mr Bowen attended counselling sessions with Mr Kirton on 6, 14 and 28 February 2019, 1, 14 and 28 March 2019, and 11 April 2019. Indeed, Mr Kirton said that, as at the date of his report on 12 April 2019, "the Treatment Plan is being followed with positive outcomes in terms of his thinking and daily living functions."
7. In the circumstances, I accept that Mr Bowen's management while on parole, including his participation in the VOTP Maintenance program and his treatment by Mr Kirton, have substantially mitigated the potential negative effects upon Mr Bowen of being unable to see his foster mother or spend time at her funeral and the prospect of an ESO.

Mr Bowen's employment

1. Ms Cieplucha noted that employment is considered a protective factor when assessing risk of recidivism, and she commented upon Mr Bowen's having displayed a positive work ethic and demonstrated that he was a skilled and competent worker who enjoyed work and valued the independence associated with stable employment. She also noted that Mr Bowen had made a concerted effort following his release to gain employment and this reflected a genuine commitment to his job.
2. Mr Bowen's evidence included a letter from Ms Siddell, the Manager of Human Resources and Safety at TFH Hire Services dated 16 April 2019. Ms Siddell stated that Mr Bowen commenced employment with TFH on 11 October 2018 as a casual truck driver and that he worked a minimum of 38 hours per week and generally commenced work at 5:30am. His work involved delivering fencing and related products throughout the Sydney area. It was noted that he was dealing with a variety of customers, generally getting them to sign paperwork and dealing with general enquiries on site. In particular, Ms Siddell stated: "[Mr Bowen] has been upfront and honest regarding his criminal history as well as his impending court proceedings, and where possible TFH will be supportive of him. When considering the routes for the day our Logistics Manager communicates with [Mr Bowen] on the areas to ensure he is not in breach of his conditions. In all my communications/meetings with [Mr Bowen] he has been polite and respectful. To date [he] has not faced any disciplinary action and has been accommodating, honest and a genuine hard worker."
3. Unfortunately, Mr Bowen has not continued in this employment. The Department of Corrective Services case note report dated 30 April 2019 records that Ms Siddell contacted Campbelltown Community Corrections on that day and advised as follows: "[Mr Bowen] was terminated from his employment yesterday because he became aggressive with his female boss Marie. She said that he also lied on his resume to get the position and said he only served four years in gaol, and also provided a false reference. She wanted to advise [the] officer that he [was] no longer employed. Police were not involved in the incident yesterday."
4. The next day, 1 May 2019, Mr Bowen was interviewed at Campbelltown Community Corrections and the case note report recorded the following: "[Mr Bowen] said that he feels that it's terrible timing for him to have lost his job, with his upcoming ESO case. He said he doesn't think he was aggressive at all with his boss, and was just sticking up for himself. He said that he acknowledges that he provided misleading information on his resume to get the job initially, so will 'cop that on the chin' but denied being aggressive. He said that he is determined to find another job, but is waiting until after Friday. Affirmed him for remaining motivated. [Mr Bowen] said that he had just tried to call [Ms Siddell] to follow up his outstanding pay, but she accused him of verbally harassing her. Officer directed him not to contact her further, unless via email in a non-aggressive way to follow-up payment. Whilst in the interview [Mr Bowen] received an email from [Ms Siddell] stating that she had escalated matters to Campbelltown Police. Discussed the possible outcomes and that [Mr Bowen] should be prepared for police to attend his home and/or contact him by telephone, and emphasised the importance of remaining calm and cooperative. He acknowledged this. … Upon leaving the interview room [Mr Bowen] appeared calm."
5. The termination of his employment removes, at least for some time, a protective factor which would have tended to reduce the risk of reoffending. It also involves increased stress.

State's submissions

1. Mr Aitken provided very helpful written and oral submissions on behalf of the State, in which it was contended that all of the statutory preconditions were established by the evidence. I have considered all of the matters raised in those submissions.
2. As to the ultimate question on this preliminary application, it was submitted that Mr Bowen had a history of violent offences and two convictions for a "serious violence offence", as defined in s 5A(1)(a) of the HRO Act, the latter of which was committed while he was on parole for the former. While he has completed various aspects of VOTP, he has been assessed as benefiting from further psychological engagement, especially where his insight into the context of his offending was problematic.
3. The submissions also drew attention to Mr Bowen's risk of further violent offending, having been assessed as medium on the VRS, and his history of depressive illness and cannabis and alcohol abuse prior to the murder offence, which remains an issue of concern, even if currently in remission. This history was said to be significant because it provided the context to the murder offence and was clearly linked the risk of further serious violent offending.
4. It was also contended that the history of conflict in interpersonal relationships, especially with women, coupled with impulsivity and quickness to anger meant that Mr Bowen required ongoing supervision, especially since his ability to maintain a stable and intimate relationship without violence remained untested. The State submitted that the more recent serious violence offence, recklessly causing grievous bodily harm, occurred despite supervision on parole, despite the completion of relevant training programs in custody, and despite the absence of evidence of a contemporaneous context of alcohol or drug abuse.
5. Mr Aitken submitted that the matters recorded in the case note of 6 February 2019, especially when viewed in the light of Mr Kirton's report, did not justify the Court's accepting that making an ISO, or even an ESO, would have the potential for significant harm to Mr Bowen or would be counter-productive.
6. Thus, it was submitted that, in all the circumstances, the Court would be satisfied that the matters alleged, if proved, would justify the making of an ESO, since there was an unacceptable risk of a further serious violence offence occurring if Mr Bowen were to be unsupervised. In these circumstances, it was contended that an ISO should be made and reports should be obtained, under s 7(4).

Mr Bowen's submissions

1. Ms Graham also provided detailed and helpful written submissions and made oral submissions on Mr Bowen's behalf. As has been noted above, it was conceded that the various preconditions to the making of the orders sought were established. Although I have had regard to all the submissions made, it is sufficient to note here the matters set out in the following paragraphs.
2. Ms Graham submitted that, on a preliminary hearing, the Court should not ignore the evidence led by a defendant, even if the Court was required to assume that the matters alleged in the State's supporting documentation was proved.
3. It was also contended that an assessment that Mr Bowen's risk of violent offending was at the medium level did not, of itself, mean that the Court should be satisfied to a high degree of probability that Mr Bowen posed an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.
4. In addition, it was said that the risk factors identified by Ms Cieplucha were being or could be addressed without an ISO or ESO. It was noted in particular that Mr Bowen had shown a consistent attitude of wanting to work and a capacity for work, even if he was currently unemployed. Attention was also drawn to the fact that Mr Bowen had voluntarily and consistently attended counselling sessions with Mr Kirton and to the fact that there was no evidence to suggest that there was any relapse into alcohol or illicit drug abuse. Ms Graham noted the rehabilitation programs in which Mr Bowen had participated and successfully completed while in custody and under supervision.
5. As to Mr Bowen's mental health, his treatment while in custody was noted as well as the assessment that he was functioning well without medication and that his mental health was sufficiently stable not to require medication.
6. It was contended that Mr Bowen's involvement with Mr Kirton revealed his insight and together with the other factors demonstrated that Mr Bowen could access intervention and support when needed without the need for an ISO.
7. Ms Graham also emphasised that the imposition of an ISO or an ESO might well have a counter-productive impact both upon Mr Bowen and on the security or safety of the community. It was said that the prospect of an ESO had had an adverse effect upon Mr Bowen, for example in relation to his sleeping, eating and increased stress levels, and that those feelings were counter-productive to his engaging in prosocial activities and in his pursuit of his own rehabilitation. In addition, it was contended that, to the extent that Mr Bowen felt crippled by the imposition of an ISO or ESO, this could also lead to adverse consequences for the safety of the community. This was said to follow from the complexity of Mr Bowen's condition and the prospect of an ESO regime destabilising and derailing his progress, especially if it led to negative feelings towards authority figures.

Consideration of whether an ISO should be made

1. An ISO may be made under s 10A of the HRO Act, which provides: "The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order."
2. It is accepted that the condition in par (a) is satisfied.
3. The relevant requirement for making an ESO is dealt with in s 5B(d) of the HRO Act in following terms: "The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: … (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."
4. The standard of proof required by the words a "high degree of probability", in s 5B(d) of the HRO Act, is a higher standard than "more probably than not" but not as high as "beyond reasonable doubt": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales (2016) 91 NSWLR 636 (Lynn) at [44] and [55]-[58]; [2016] NSWCA 57.
5. In performing this task, the Court is also to have regard to the objects of the HRO Act, set out relevantly in s 3 in the following terms: "(1) The primary object of this Act is to provide for the extended supervision and continuing detention of … 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 violent offenders to undertake rehabilitation."
6. In addition, I am bound to apply s 9(2) of the HRO Act which provides: "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."
7. It should also be noted that, when the Court is considering an application for an ESO, by virtue of s 5D of the HRO Act, it: "is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence."
8. The evaluation to be made under s 5B(d) 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, and such an assessment is to be made assuming the absence of any supervision: Lynn at [55] and [61].
9. The question, then, is whether, assuming the matters alleged in the supporting documentation are proved, and having regard also to the matters established by the evidence adduced by Mr Bowen, the making of an ESO would be justified on the basis that there is a high degree of probability that Mr Bowen poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.
10. Having regard to the allegations in the supporting documentation and the evidence in this matter, and the considerations and principles set out above, I have concluded that the making of an ESO would be justified on the basis that I am satisfied to a high degree of probability that Mr Bowen poses an unacceptable risk of committing another serious offence if not kept under supervision under such an order. In particular, but without attempting to be exhaustive, I have relied upon the material before the Court concerning relevant matters referred to in s 9(3) of the HRO Act, including the following: 1. Mr Bowen has a history of violent offences, two of which fall into the category of a "serious violence offence" and the latter of those occurred while he was under supervision on parole. 2. The two serious violence offences both occurred in the context of interpersonal relationships. The murder offence involved a person in the position of a former employer, and the reckless grievous bodily harm offence involved a person in an intimate personal relationship with Mr Bowen. 3. The index offence, the later of the two serious violence offences, occurred after Mr Bowen had completed a number of rehabilitation courses while in custody for the earlier offence and, unlike the murder offence, did not apparently involve an immediate context of alcohol or illicit drug use. 4. Mr Bowen's risk of committing further violent offences was assessed as medium on the VRS and medium-high on the LSI-R. In addition, his risk factors were substance abuse, relationship instability, poor mental health and emotional coping, violence cycle/violent lifestyle/interpersonal aggression/emotional control, criminal attitudes, cognitive distortions and poor compliance under supervision. These factors have been managed, at least to a substantial extent, by his supervision while in custody and on parole. They give rise to a significant level of risk if supervision is entirely removed on the expiration of his sentence. The protective factors that have mitigated the risk of reoffending include his employment, engagement with a psychologist in the community and family and community support. Unfortunately, his employment was recently terminated in circumstances that have some, albeit limited, similarity to the termination of his employment prior to the murder offence in that there was a perceived entitlement to payment which has not been honoured. His engagement with his psychologist has been commendable and apparently effective, but there is no guarantee that such engagement will continue if Mr Bowen is not subject to supervision. Again, unfortunately, Mr Bowen's foster mother has recently died and this element of family support has thus been removed. Consequently, the risk of reoffending has not been reduced as a result of recent occurrences and is likely to have been increased. 5. Alcohol and illicit drug use played a part in one of the serious violence offences. Such use was apparently in response to an inability to cope with stress and depression resulting from factors such as relationship breakdown, unemployment and financial difficulties. Without supervision and support, there is a significant risk of alcohol and illicit drug use re-emerging in the event of future relationship breakdown, unemployment and financial difficulties. 6. The effectiveness of Mr Bowen's psychological treatment and the rehabilitation programs undertaken in relation to managing and regulating interpersonal relationships, including employment and intimate relationships, remains untested in an unsupervised environment. In addition, that treatment is incomplete. Mr Kirton indicated that it should continue through 2019 and perhaps longer. In my view, there continues to be a substantial risk that, without ongoing supervision and support at this time, Mr Bowen could resort to violence in an interpersonal context if there was a real or perceived conflict, if his views were challenged, or if he felt the need to assert his dominance or have his needs met. 7. I have also taken into account the risk management report of Mr Corcoran and how supervision under an ESO or ISO could be undertaken, and the nature of the support it would provide.
11. I have considered very seriously Ms Graham's submissions concerning the potential counterproductive effect of imposing an ISO or ESO on Mr Bowen. As indicated above, I accept that the prospect of an ESO, and the occurrences in relation to the funeral, caused stress and potentially serious adverse consequences for Mr Bowen, in early February 2019. They also caused him to have a negative view of those involved in his supervision at that time. I have also taken into account that the decision in a matter such as this may have devastating consequences for Mr Bowen if the imposition of an ISO is not appropriately managed and implemented and that it involves a substantial curtailment of his liberty. However, in all the circumstances, and especially in the light of his treating psychologist's report, which does not mention the occurrences in about early February and the potential imposition of an ESO as significant ongoing factors adversely affecting Mr Bowen's psychological well-being, I am not satisfied that the potential negative impact of an ESO or ISO on Mr Bowen is a sufficient reason for concluding that I cannot be satisfied to a high degree of probability that Mr Bowen poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.
12. Accordingly in the light of all the material before the Court and for the reasons set out above, I am satisfied that, in accordance with s 10A of the HRO Act, an ISO should be made and that, in accordance with s 7(4) examination orders should be made.

Conditions of the ISO

1. I accept that conditions ought not be imposed under an ISO that are unjustifiably onerous or simply punitive, but it may be appropriate to impose conditions that do not themselves directly relate to an offender's risk but are appropriate nonetheless because they promote the efficacy of an order containing other conditions which do: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [100]. In determining the conditions that are appropriate, I also take into account the comments of Adams J in State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]: "Section 11 of the Act permits the imposition only of such conditions as it "considers appropriate", including those specified in the section. As Johnson J observed in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], the Court is to strike a "balance between relevant considerations" which included the matters to which the Court has had regard in determining whether to make an extended supervision order. Amongst the other considerations are the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties. Ultimately, the purpose of conditions is to mitigate the risk of the defendant's committing further [relevant] offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice. (See Wilde v State of New South Wales [2015] NSWCA 28, in which the authorities are usefully collected.)"
2. Counsel for both parties made useful submissions concerning the appropriate conditions that might be imposed by any ISO. A measure of agreement was reached, if it was decided that an ISO should be made. My reasons are, accordingly, limited to those conditions in relation to which there was no agreement.
3. Because the conditions that I propose to impose in relation to the ISO do not correspond entirely with either those put forward by the State or those of Mr Bowen, I have identified the conditions by their number in the Schedule attached to these reasons. I have also identified their number in Mr Aitken's and Ms Graham's numbering, where this differs from the number in the Schedule.
4. Condition 3: The dispute in relation to condition 3 concerned: 1. whether there should be a general exemption if Mr Bowen had a reasonable excuse for non-compliance; 2. whether all directions given by a Departmental Supervising Officer (DSO) should be in writing; and 3. whether the DSO was required to provide a written record of the reasons for the direction.
5. The legitimate expectation is that a DSO will approach the task of supervision under, and implementation of, an ISO or ESO in a common sense way, informed by a practical and constructive exercise of discretion, and that the relevant discretions will be exercised consistent with the purposes of the HRO Act: State of NSW v Farringdon [2018] NSWSC 874 at [46] and State of New South Wales v White (Final) [2018] NSWSC 1943 at [207]. I also note the comments of Fagan J in State of New South Wales v McQuilton (Final) [2019] NSWSC 265 concerning a situation where this expectation may not have been met. In relation to an ISO which is in force for only 28 days and which cannot be renewed so that it operates for more than three months, and where there has been no suggestion of inappropriate exercise of any discretion in the prior management of Mr Bowen, I am of the view that it is not necessary at this stage to include a general exemption for non-compliance with reasonable excuse.
6. As to the requirement that all directions be in writing, I think there is force in the submission that there may be circumstances where it may not be feasible or practical to give a direction in writing. I note that it was said that the DSO or their delegate must record all directions given. If this is done, there will be a written record but it does not appear to me to be necessary to require a direction to be in writing before the person the subject of the order is required to comply.
7. The State's proposed condition 3 requires compliance with "any reasonable direction". I do not think that any useful purpose is served by requiring a statement of reasons in writing to be given before the subject person is required to comply. That is not to say, however, that the usual procedures would not require reasons to be recorded in the ordinary course.
8. Condition 4: Mr Bowen opposed electronic monitoring, which is required under condition 4. It was common ground that Mr Bowen's current parole conditions included electronic monitoring. Mr Bowen is subject to an AVO in respect of V1 and this involves, as I understand it, restrictions on his ability to enter certain areas. I accept that electronic monitoring has the benefits identified by Mr Corcoran in his report. In all the circumstances, I believe that electronic monitoring is appropriate in the ISO in the present case.
9. State's Proposed Conditions 5, 6 and 7: These conditions concerned the subject person providing and abiding by a weekly schedule of movements, but the obligation to provide those schedules would only arise if the subject person was directed to do so. Such conditions are not included in Mr Bowen's current parole conditions and, as Mr Aitken noted, the proposed conditions only give the DSO the option to direct the provision of such schedules, if this is thought necessary. Given the length of time that this ISO may operate, the absence of a requirement for schedules of movements in his current parole conditions and the opportunity this may give Mr Bowen to demonstrate his responsibility and willingness to comply with a lesser degree of supervision, I am not minded to include proposed conditions 5, 6 and 7 in the ISO.
10. Condition 8: This condition (10 in Mr Aitken's and Ms Graham's numbering) requires the subject person not to be absent from his approved address between 10pm and 4am unless other arrangements are approved by his DSO. Mr Bowen contends that he should be entitled to be absent also for the purposes of employment. As Mr Bowen is not currently employed and the ISO will last for only a relatively short period, I do not believe that his proposal concerning employment is necessary or appropriate.
11. Condition 9 and State's Proposed Condition 13: These conditions (12 and 13 in Mr Aitken's and Ms Graham's numbering) concern, respectively, whether Mr Bowen could spend a night anywhere other than his approved address without the approval of his DSO and whether he could permit any person to enter and remain, or to stay overnight, at his approved addressed without prior approval. As to condition 9, condition 7 already requires Mr Bowen not to be absent from his approved address between 10pm and 4am unless other arrangements are approved by his DSO, accordingly, he effectively cannot spend a night anywhere else without approval. Thus, condition 9 could be seen as unnecessary in the light of condition 7 but it is also difficult to perceive how it could adversely affect Mr Bowen if condition 9 were included. Such a condition is not uncommon in an ESO. Proposed condition 13, concerning other persons visiting Mr Bowen's address, is onerous and intrusive. Another condition (condition 22) deals with his close personal relationships. In the light of that condition, the onerous nature of proposed condition 13 and the limited period of the ISO, and to give Mr Bowen the opportunity to demonstrate his responsibility and willingness to comply with a lesser degree of supervision, I do not propose to impose condition 13 in the ISO.
12. Condition 10: This condition (numbered 16 in Mr Aitken's and Ms Graham's numbering) concerns the requirement that Mr Bowen comply with any reasonable direction from his DSO not to go to a particular place. Mr Bowen proposed that this should be modified by requiring the DSO to form a view on reasonable grounds that it was necessary to prohibit Mr Bowen going to a location to reduce the risk of serious violence, to put the direction in writing and to provide written reasons. Given that the State's proposed condition was limited to complying with "any reasonable direction", I do not think it is necessary to spell out more fully the circumstances in which a direction would be reasonable, especially as the question of reasonableness will be informed by the scope and purpose of the ISO in the particular case. Hamill J in State of New South Wale v Steven Single [2019] NSWSC 176 (Single) discussed the issues raised by Mr Bowen at [55]ff and imposed a condition that included a proviso to the effect that the direction only be given if the DSO formed the reasonable belief of certain matters relevant to reducing the risk of reoffending - see condition 15 in Single. In this case, I am dealing with an ISO which has a very limited period of operation. The proposed form already includes a requirement that the direction be reasonable, which must be informed by the nature of the risk involved in the particular case. In these circumstances, and for reasons essentially similar to those given in relation to condition 3, I reject Mr Bowen's changes in relation to condition 10.
13. Condition 14: This was the subject of proposed condition 18 (in Mr Aitken's and Ms Graham's numbering) and requires Mr Bowen to obtain the approval of his DSO before starting any job etc. Mr Bowen proposed amending this to require him only to inform his DSO of starting any job etc. Mr Bowen also drew attention to the equivalent condition in Single - condition 19. That condition, however, involved approval, rather than merely informing, although there was a qualification on the circumstances in which the DSO could deny approval. Given that the murder offence was related to Mr Bowen's employment, the form of the condition in Single, the legitimate expectation as to how any discretion will be exercised by the DSO, and the fact that I am only dealing with an ISO, I am not minded to make the change proposed on Mr Bowen's behalf.
14. State's Proposed Condition 19: Proposed condition 19 would require Mr Bowen to provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. It was not initially apparent how this condition was related to Mr Bowen's risk of reoffending. Counsel for the State explained that it was designed to provide information which might disclose alcohol or drug use. It was also noted that financial hardship and access to cash appeared to have been a motivating factor in relation to the murder offence. In my view, this purpose is not so directly related to the purpose of this ISO that such a condition should be imposed.
15. Condition 18: The dispute in relation to this condition (23 in Mr Aitken's and Ms Graham's numbering) was limited to whether there should be a reasonable excuse exception to the obligation to attend and participate in drug and alcohol rehabilitation as directed by his DSO. As this condition only involves an option for the DSO to direct participation in such programs and for the reasons given in relation to condition 3, I am not minded to include a reasonable excuse exception in the ISO.
16. Condition 19: This condition (24 in Mr Aitken's and Ms Graham's numbering) requires Mr Bowen not to associate with people whom his DSO tells him not to. Mr Bowen submitted that the condition should be limited to not associating with "a person", that the DSO should be required to form a belief on reasonable grounds that it is necessary to prohibit the association in order to reduce his risk of serious violence, and that any direction should be in writing and reasons for the direction should be recorded. Ms Graham referred to the decision in Single in relation to this condition as well. For essentially the same reasons as I gave in relation to conditions 3, 10 and 14, I do not think the amendments proposed by Mr Bowen should be adopted at this stage. That is not to say that the same position should be adopted, if it were subsequently decided to impose an ESO.
17. Condition 22: This condition (27 in Mr Aitken's numbering and 28 in Ms Graham's numbering) concerns the steps Mr Bowen is required to take if he starts a close personal relationship (whether intimate or employment or some other type of relationship). The only substantial area of dispute concerned whether the form of condition should be that imposed by the Court in State of New South Wales v Weribone [2016] NSWSC 1474 at [80]-[82] or a slightly amended version which did not appear to give Mr Bowen the option of telling the person his criminal history rather than giving consent to the DSO doing so. Given that it is important that the conditions of an ISO be clear, I think that the form proposed by the State is preferable. I note that this form would not prevent Mr Bowen informing the person of his criminal history if he chose to do so and this might be a sufficient basis for the DSO not requiring him to give consent for the DSO to inform the person.
18. State's Proposed Conditions 28 to 32: These proposed conditions (30 to 34 in Ms Graham's numbering) concerned access to the Internet and other electronic communication. As there was no suggestion that access to the Internet or other electronic communication had played any part in Mr Bowen's offending or was significant in relation to his risk of reoffending, I am not disposed to include these conditions in the ISO.
19. Conditions 23 to 26: These conditions (33 to 36 in Mr Aitken's numbering and 35 to 39 in Ms Graham's numbering) relate to searches and seizures. These types of conditions were considered by Fullerton J recently in State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [103]-[108]. The State's proposed conditions largely follow the form adopted by her Honour in Grooms and, in my view, are somewhat simpler and clearer than the terms proposed by Ms Graham. For this reason and similar reasons to those given in relation to condition 3, I propose to adopt the form of conditions put forward by the State, for the purposes of the ISO. Some of the elements in the conditions put forward on Mr Bowen's behalf appear to be more relevant to an ESO, if it is subsequently decided to make such an order.
20. State's Proposed Condition 39: This proposed condition (42 in Ms Graham's numbering) concerned the use of aliases, login names, and similar matters in relation to the Internet and social media. Once again, as there was no suggestion of the Internet or social media playing any part in Mr Bowen's offending or the risk of his reoffending, I am not minded to impose this condition at this stage for the purposes of the ISO.
21. Some of the other conditions were, in some cases, the subject of drafting suggestions during submissions or minor disputes but I did not understand that there was any substantial dispute as to the substance of the conditions and, accordingly, it is not necessary to deal with them in detail here.

Orders

1. For these reasons, the orders of the Court are: 1. Two qualified psychiatrists or registered psychologists (or one of each such persons) as agreed by the parties are appointed to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties. 2. The defendant is directed to attend those examinations. 3. The defendant is to be the subject of an interim supervision order from midnight on 31 May 2019. 4. The interim supervision order is to be for a period of 28 days. 5. The defendant is to comply with the conditions set out in the Schedule to these reasons for judgment for the period of the interim supervision order. 6. Access to the Court's file shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. 7. Liberty is granted to the parties to approach the Common Law list clerk to obtain hearing dates for any application for an extension of the interim order, for the final hearing of the matter, and to fix a timetable for the filing and serving of evidence and submissions. 8. Liberty is granted to the parties to apply on one day's notice in relation to order 1 if the parties cannot reach agreement for the purposes of that order.

Stephen Michael Bowen Part A: Reporting and Monitoring Obligations

1. Corrective Services NSW (CSNSW) will administer the Interim Supervision Order (ISO).
2. The defendant must report to the Department Supervising Officer (DSO), or any other person supervising him as directed by the DSO.
3. The defendant must comply with any reasonable direction given by his DSO, or their delegate from CSNSW, for the enforcement and implementation of the ISO or any condition of the Order. 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. Electronic Monitoring
4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Movements
5. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
6. The defendant must live at an address approved by his DSO.
7. The defendant must be at his approved address between 10:00pm and 4:00am unless other arrangements are approved by his DSO.
8. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, enter the premises at that address.
9. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. Part C: Place and travel restrictions
10. The defendant must not leave New South Wales without the approval of CSNSW.
11. The defendant must surrender any passports held by the defendant to the Commissioner.
12. The defendant must comply with any reasonable direction from his DSO not to go to a particular place. Part D: Employment and education
13. If the defendant is unemployed, the defendant must endeavour to enter/obtain available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
14. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. Part E: Drugs and alcohol
15. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
16. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
17. The defendant must not enter any licensed premises without the approval of his DSO.
18. The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by his DSO, including a residential rehabilitation program if made available to him, and must not discharge himself from such programs and courses without the prior approval of his DSO. Part F: Non-association Association with Others (not children)
19. The defendant must not associate with people that his DSO tells him not to.
20. The defendant must not associate with any people whom he knows or believes are consuming or under the influence of illegal drugs.
21. The defendant must not associate with any people whom he knows or ought reasonably to know are consuming or under the influence of alcohol without the prior approval of the DSO.
22. If the defendant starts a close personal relationship (including an intimate, employment or other relationship) with someone: a. He must tell his DSO the name of the person with whom he is in a relationship; b. If required by his DSO, he must give consent for the DSO to tell the person of his criminal history; c. He must tell the DSO before commencing to live with that person; and d. He must obey any reasonable direction from his DSO not to live with that person. Part G: Search and Seizure
23. If the DSO reasonably suspects that a search of the defendant's approved address, or any vehicle in which he is travelling or which is under his effective control, is necessary to confirm his continuing compliance with the ISO, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to a search of his approved address or any such vehicle.
24. If the DSO reasonably suspects that a search of the defendant's person is necessary to confirm the defendant's compliance with the ISO, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to "a pat down search" (that is a search confined to those areas of the defendant's body which are clothed), and consent to a search of any article of the defendant's clothing carried by him but not worn, and a search of any bag or other receptacle in his possession.
25. Where the DSO believes, on reasonable grounds, that anything found in the course of executing a search of the kind comprehended by conditions 23 and 24 is related to behaviour or conduct associated with an increased risk of the defendant committing a serious offence (as defined) the defendant must submit to that item or those items being seized. If the DSO does not form that belief, the item or items must not be seized.
26. 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 conditions 23 and 24 above. Part H: Access to violent and classified material
27. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material that is classified, or material that would be classified, as Refused Classification or Restricted Category 2 on the basis of the depiction of violence in that material. Part I: Personal details and appearance
28. The defendant must not change his name without the prior approval of his DSO. The defendant may use the following name: "Stephen Michael Bowen".
29. The defendant must not change his appearance without the approval of his DSO. Approval is not required for routine activities.
30. The defendant must permit CSNSW to photograph him with his clothes on at the beginning of this ISO and after any material change in his appearance.
31. If the defendant changes the details of any current form of identification or obtains additional forms of identification, he must provide the DSO with such details. Part J: Medical intervention and treatment
32. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
33. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
34. The defendant must take all mental health medications that are prescribed to him by his healthcare practitioners, except so far as his health practitioners advise him that it is not necessary to do so.
35. If the defendant knowingly ceases to take mental health medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
36. The defendant must agree to his general practitioner and any treating psychologist, psychiatrist, counsellor or other mental health practitioner sharing information, including reports on his progress, with each other and with his DSO and anyone else supervising him as considered appropriate by those treating practitioners for the defendant's rehabilitation and risk mitigation in relation to a serious offence. Note: it is understood that a relationship of trust and confidentiality with health care practitioners is fundamental to the defendant's engagement with, and treatment by, healthcare practitioners.
37. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW for the purpose of administering this order to mitigate the risk of the defendant committing a serious offence (as defined).

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: 16 May 2019