The plaintiff in these proceedings, the State of New South Wales, seeks a high risk violent offender continuing detention order ("CDO") under s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") in respect of the defendant, Shaw Briar. Such an order would detain the defendant beyond the expiration of his current sentence. He is serving a sentence of imprisonment for three years for an offence of recklessly causing grievous bodily harm in company contrary to s 35(1) of the Crimes Act 1900 (NSW). His total term of imprisonment is to expire on 20 September 2017.
The defendant is a young Indigenous man of 24 years with a multiplicity of complex needs and risk factors. He has a criminal history for offences of violence going back to the age of 15. He spent nearly three years in juvenile detention and has spent most of his young adulthood in custody. As an adult, he has been at large in the community for periods ranging from a month to 10 weeks. He has significant drug and alcohol problems. He witnessed domestic violence as a child and has difficulty managing his propensity to respond to interpersonal issues with violence. He has refused to undertake any intensive rehabilitation treatment and he has not participated in any courses in custody to address either his aggressive impulses or his drug and alcohol problems. He has a mild intellectual disability, functioning at a level lower than 99% of his peers. In addition, he has been diagnosed with a substance abuse disorder and an antisocial personality disorder. Some of the reports suggest that he has foetal alcohol syndrome, but this has not been confirmed by a neurologist.
These proceedings have had a somewhat troubled procedural history.
A summons seeking a CDO against the defendant under the Act was filed on 19 May 2017. That summons came before Davies J for interim orders on 5 June 2017. His Honour made an order pursuant to s 15(4) of the Act appointing Dr Andrew Ellis and Professor Susan Hayes to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 23 August 2017: State of New South Wales v Briar [2017] NSWSC 702. The State did not seek an interim detention order ("IDO") nor an interim supervision order ("ISO) at that time because the matter was listed for final hearing on 15 September 2017, two working days prior to the expiration of the defendant's sentence.
On 20 July 2017, the matter came back before Davies J. His Honour was informed that, since the making of the orders, the State had ascertained that the defendant was sentenced for another matter in the Local Court at Parkes on 20 January 2017 to a term of imprisonment expiring on 30 November 2017. The result is that the summons filed on 19 May 2017 was filed prior to the last six months of the offender's current custody or supervision, contrary to s 6(2) of the Act.
His Honour granted the State leave to discontinue those proceedings and to file a fresh summons commencing these proceedings. It was not proposed at that time that any of the directions that his Honour gave on 5 June 2017 should be altered, nor that there had otherwise been any substantive change to the matters to which his Honour's judgment of 5 June 2017 referred. The hearing date of 15 September 2017 was confirmed: State of New South Wales v Briar (No. 2) [2017] NSWSC 977.
On 23 August 2017, the defendant was charged with reckless wounding in company contrary to s 35(3) of the Crimes Act. It is alleged that whilst in custody he stabbed a fellow inmate using a makeshift knife, or "shiv". The defendant is presently bail refused in respect of that charge.
On 15 September 2017, I granted leave to the State to file in court a summons seeking a high risk violent offender CDO under s 17(1)(b) of the Act and, in the alternative, a high risk violent offender extended supervision order ("ESO") under s 9(1)(a) of the Act.
At the commencement of the hearing, counsel for the State, Mr Khan, indicated that the matter could not be finalised before 20 September 2017 (at which time the defendant's head sentence would expire) because Professor Susan Hayes was required for cross-examination and was unavailable to attend court to give evidence. On that basis, he sought an adjournment of the hearing for a CDO and instead indicated that the State would seek an IDO for 28 days.
In response, counsel for the defendant, Mr Skinner, raised a number of issues. He accepted that the matter could not be finalised by 20 September 2017 and raised the additional difficulties for the defendant caused by the fresh charge. That charge involves an allegation that the defendant has recently committed another "serious violence offence" within the meaning of s 5A(1) of the Act while in custody. Those proceedings are still on foot. Although the court records indicate that the defendant has entered a plea of not guilty to that count, those were not Mr Skinner's instructions. Rather, it was the defendant's understanding that a plea had not as yet been entered.
If the defendant defends his recent charge, he will not be eligible for any custody-based rehabilitation courses until that matter is finalised. Nor would he be able to address the circumstances of the recent charge in the present proceedings without being forced to waive his privilege against incrimination. That matter is next listed in the Local Court at Lithgow on 12 October 2017 for a reply to the brief of evidence. Apparently, the Director of Public Prosecutions has not made an election in that matter under s 260 of the Criminal Procedure Act 1986 (NSW) and the earliest date that it could be heard in the Local Court at Lithgow is in early 2018. On the other hand, if he pleads guilty to the recent offence, it not only means that he would become eligible to undertake rehabilitation courses in custody (as to which see below at [55] - [56]) but also that the circumstances of that offence could be fully explored at the final hearing of this application for a CDO.
There is a further aspect of the defendant's present custodial status that warrants consideration. His most recent sentence of imprisonment imposed on 20 January 2017 comprised a non-parole period of nine months and a head sentence of 12 months, which will expire 30 November 2017. Given that this was a sentence of less than three years' duration, the magistrate was required under s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") to order that the defendant be released at the expiration of the non-parole period. The State Parole Authority ("SPA") has the power to revoke such a parole order under s 130 of the Crimes (Administration of Sentence) Act 1999 (NSW). A "parole order" within the meaning of that section is defined in s 3 to include an order made under s 50 of the CSP Act. It does not appear that any steps to revoke this parole order have been taken.
Thus, as at 15 September 2017, the defendant was serving a sentence that expires on 20 September 2017 and was bail refused in relation to a recent serious allegation that may not be dealt with until next year. It was not suggested that any application for bail was proposed in relation to that matter. In addition, the head sentence of one of the sentences that he is currently serving does not expire until 30 November 2017.
I raised with Mr Khan the fact that an IDO can only be made for 28 days at a time and for no longer than three months in total (s 18C of the Act). This means that if I were to impose an IDO from 20 September 2017 for 28 days, it could not be continued beyond the three-month period allowable under the Act. That three-month period may well expire before the defendant's recent matter is resolved. I suggested that an alternative course would be to adjourn the matter for a final hearing without imposing an IDO and to grant leave to the State to approach my Associate to have the matter re-listed before me on an urgent basis for consideration of an IDO should there be any indication that the defendant was to be released on bail.
Although the defendant did not oppose the making of an IDO, counsel for the defendant also queried the necessity for such an order at this time, given the defendant's current custodial status, in circumstances where the maximum three-month period that consecutive IDOs may operate may well expire before the recent charge is finalised.
Despite the above, counsel for the State confirmed that his instructions were to seek an IDO to commence from 20 September 2017.
For reasons that appear herein, I am satisfied that the statutory threshold for the making of an IDO is satisfied in this matter. Although the making of an IDO was not ultimately opposed, it is necessary that I be satisfied of certain statutory criteria before making such an order. As this Court has noted on a number of occasions, the determination of whether the relevant statutory preconditions exist involves an evaluative test that is not capable of being resolved by way of consent. Nonetheless, as Johnson J observed in State of New South Wales v Manners [2008] NSWSC 1242 at [4], the court process is facilitated by the fact that there is no controversy between the parties to be resolved in this respect. Given that the State's application was not opposed, my reasons will not be as lengthy as they would otherwise have been.
Before turning to consider the material before me on this application, it is pertinent to note the relevant provisions of the Act.
[2]
The legislation
The State may make an application to the Supreme Court for a CDO against an offender: s 13A. Such an application may only be made in respect of a "detained violent offender" or a "supervised violent offender": s 13C(1). Relevantly, a "detained violent offender" is a violent offender who, at the time of the making of the application for a CDO, is in custody in a correctional centre while serving a sentence by way of full-time detention for a serious violence offence: s 13C(2)(a)(i).
Section 3 defines "violent offender" as a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a serious violence offence. Section 5A(1) defines "serious violence offence" as including, relevantly, a serious indictable offence constituted by a person engaging in conduct that causes grievous bodily harm to another person while being reckless as to causing grievous bodily harm to another person. There is no dispute that the defendant is a detained violent offender.
Section 5E(1) of the Act provides that an offender can be made the subject of a high risk violent offender ESO or a high risk violent offender CDO if and only if the offender is a "high risk violent offender". An offender is a "high risk violent offender" if the person is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if not kept under supervision: s 5E(2). The Supreme Court may, on application, make an order for the detention of an offender if the offender is a serious violent offender and the Court is satisfied that adequate supervision will not be provided by an ESO: s 5G(1). Section 17(3) prescribes the matters to which the Court must have regard when determining whether or not to make a high risk violent offender CDO or ESO.
The power to detain a high risk violent offender on an interim basis pending the resolution of an application for a high risk violent offender CDO or ESO is found in s 18B of the Act. Section 18B provides that the Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a CDO, it appears to the Court that the offender's current custody (if any) will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender ESO or a high risk violent offender CDO.
Section 14(3) of the Act provides that an application for a high risk violent offender CDO must be accompanied by supporting documentation that addresses each of the matters in s 17(4) (to the extent relevant to the application) and that includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the defendant committing a further serious violence offence.
[3]
Principles with respect to the making of interim detention orders
As set out above at [22], the relevant test for the making of an IDO is it appears to the Court that the offender's current custody (if any) will expire before the proceedings are determined and the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender ESO or CDO. That invites consideration of whether the defendant is a high risk violent offender who would not be adequately supervised by an ESO.
A threshold question arose as to whether, given his custodial status set out above at [11] - [13], I could be satisfied that it appeared that Mr Briar's "current custody" will expire before the proceedings are determined: s 18B(a) of the Act. The parties were invited to make further submissions on this issue following adjournment of the hearing. It was the subsequent submission of both parties that s 18B(a) was satisfied when regard is had to the definition of the phrase "current custody" in s 13C(2) of the Act. That definition is as follows:
"(2) A detained violent offender is a violent offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender's current custody):
(a) while serving a sentence of imprisonment by way of full-time detention:
(i) for a serious violence offence, or
(ii) for an offence under section 12, or
(iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or
(b) pursuant to an existing continuing detention order or emergency detention order."
Having regard to the definition of "current custody" in s 13C(2) of the Act it is irrelevant that Mr Briar is currently in custody bail refused in relation to recent charges. Being held in custody on remand does not fall within the definition of "current custody" in s 13C(2).
A further question arises as to whether the fact that Mr Briar is serving a sentence which does not expire until 30 November 2017 is relevant to my consideration of s 18B(a) of the Act. As stated above, the non parole period of that sentence of nine months expired on 31 August 2017 and a parole order was made under s 50 of the CSP Act at the time of sentence. Mr Briar has remained in custody since that time because he is still serving his sentence for the index offence and also because he is bail refused on the recent charge. That sentence was imposed to be served partially concurrently with the sentence for the index offence and would come within the terms of s 13C(2)(a)(iii) of the Act if it is a sentence being served "by way of full-time detention".
The words "full-time detention", giving them their ordinary meaning, should be construed as having a different meaning to serving a sentence per se. Mr Briar is serving the "parole" portion of that sentence in custody but not because his parole has been revoked in relation to that sentence. In addition, I have had regard to the fact that s 10B of the Act, which provides for the making of interim supervision orders, provides in s 10B(a) that one of the preconditions to making such an order is that it appears to the court that an offender's "current custody or supervision" will expire before the proceedings are determined. It seems to me that the "supervision" part of an offender's sentence is not encompassed in the definition of "current custody" otherwise there would be no need to refer to both current custody and supervision in s 10B(a). I am thus satisfied that the definition of "current custody" in s 18B(a) of the Act does not extend to an offender who has been paroled in relation to an offence but has not been released because he or she is being detained on other matters. Accordingly, it appears to me that Mr Briar's "current custody" will expire before these proceedings are finalised.
Turning to s 18B(b) of the Act, the test to be applied at this preliminary stage has been described as akin to the prima facie case test applied by magistrates at committal hearings: Attorney-General for the State of NSW v Hayter [2007] NSWSC 983 at [4]; State of NSW v Manners [2008] NSWSC 1242 at [8] - [9]. It is not for the Court at this stage to enquire into the weight to be given to the supporting documentation, nor to consider the evidence that may or may not be called by the defendant at the final hearing: per Garling J in State of New South Wales v Hippett [2016] NSWSC 1180 at [23]. It has been observed that the "fundamental objective of the legislature is the protection of the public" and the safety of the community: State of New South Wales v Pacey [2015] NSWSC 1983; Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21].
The question of what is meant by "a high degree of probability" in s 5E(2) was dealt with in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] as follows:
"21 The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely" as explained in TSL."
What the concept of "unacceptable risk" entails was explained in Lynn v State of New South Wales [2016] NSWCA 57 at [50]-[51], [55], [57]-[59] and [148]. In short, the determination of "unacceptable risk" involves an evaluative judgment to be undertaken in the context of the objects of the Act.
[4]
The material relied on by the State
The State relied upon two affidavits of Christopher Butler affirmed on 10 July (with exhibit "CB-1") and 25 August 2017 as well as affidavits of Samuel Ardasinski sworn on 25 August 2017, Janelle Farroway affirmed on 23 August 2017 and Angela Rybak affirmed on 20 August 2017. The State also relied upon the reports of Professor Susan Hayes, psychologist, dated 21 August 2017 and Dr Andrew Ellis, psychiatrist, dated 26 August 2017. No issue was taken that I was entitled to have regard to the reports of Dr Ellis and Professor Hayes for the purpose of this interim application.
Exhibit "CB -1" to the affidavit of Christopher Butler of 10 July 2017 comprised supporting documentation upon which the State relied in its application. That material contains documents with respect to the defendant's criminal and custodial history, index and other offences, psychological reports and notes, parole documents, disability assistance documents and Corrective Services documents.
[5]
Should the defendant be made the subject of an IDO?
It is not disputed that the defendant is a violent offender who is presently detained. Although it seems uncontroversial on the material before me that the defendant poses an unacceptable risk of committing further offences of violence, the question I must address is whether the material, if provided, would establish, inter alia, that he poses an unacceptable risk of committing a "serious violence offence" as defined in s 5A of the Act.
In reaching the conclusion that the defendant poses an unacceptable risk of committing a serious violence offence, I have had particular regard to the circumstances of the index offence, the defendant's criminal history, his poor history of compliance with court and parole orders, his psychological and cognitive issues, his refusal to undertake treatment for his violent offending, the Risk Assessment Report of Samuel Ardasinski, psychologist, and the reports of Dr Ellis and Professor Hayes. I shall briefly summarise some of that material below.
[6]
The defendant's background
The defendant's background is set out in a number of the reports relied upon by the State. He is the second youngest in a family of six children. He has four sisters and one brother. His parents separated when he was six years old. He witnessed domestic violence perpetrated by both his parents on each other. He was raised by his mother who re-partnered twice. He thus had two stepfathers. He has reported leaving school when he was 13 after being suspended. He has also reported leaving school in Year 9. He was placed in foster care for a period of five years with his siblings. This was a kinship placement that the defendant found positive. He played rugby league for a local team for three years and enjoys playing football. His father died in 2011.
The defendant began drinking at the age of 14 and smoking cannabis at the age of 15. He estimated to Dr Ellis that he would use between 30 and 40 cones of cannabis daily and reported that he experiences paranoia whilst intoxicated with cannabis. He reported using crystal methamphetamine from the age of 17, which he would inject twice a day. He stated that he also experienced paranoia while using ice.
It is noted that many of the defendant's offences were committed whilst he was intoxicated.
[7]
Criminal history
Despite his youth, the defendant has a lengthy history of offences of violence.
His offences as a juvenile include two counts of assault occasioning actual bodily harm committed when he was 15 years of age. Those offences involved him striking his cousin five times to the face with a closed fist and also punching his female cousin to her left cheek twice. On 21 May 2009, he received probation for contravening an apprehended violence order ("AVO") and on 28 July 2010 was called up in relation to that offence and sentenced to a six-month control order. Also on 21 May 2009, he was dealt with for matters of entering inclosed land without lawful excuse, larceny and goods in custody, offensive behaviour, affray, assaulting an officer in the execution of duty and intimidating a police officer in the execution of duty.
On 28 July 2010, he received a further control order for six months for two counts of common assault. This involved the defendant surrounding a victim with six other males and punching him four or five times in the face, head, neck and chest area. On 30 September 2010, he was dealt with for another offence of assault occasioning actual bodily harm, which involved punching and kicking a victim several times, including to his head. He was convicted of damaging property on 10 November 2010.
On 17 May 2011, by which time the defendant was 18, he entered the home of a 94-year old victim to steal money. He struck the victim in the head with an aluminium pipe without warning and from behind. For this offence, he was sentenced to 18 months' imprisonment. On 20 May 2011, he assaulted a police officer in the execution of his duty whilst heavily intoxicated.
On 20 September 2013, he was sentenced in relation to an affray, destroying or damaging property, assaulting police and resisting arrest. For the last two of these offences he was sentenced to 14 months imprisonment. On 18 August 2014, he was dealt with in relation to a common assault and destroying or damaging property. On 19 September 2016, he was sentenced to terms of imprisonment for resisting an officer in the execution of duty and damaging property.
The details of the defendant's offending show that he is prone to unprovoked violence. Although none of these earlier offences involved "serious violence offences" within the meaning of the Act, there has been an escalation of violence since he entered custody as demonstrated by the commission of the index offence.
[8]
The 'index offence'
On 19 February 2015, the defendant was sentenced in relation to one count of recklessly inflicting grievous bodily harm in company contrary to s 35(1) of the Crimes Act. That offence carries a maximum penalty of 14 years' imprisonment. It is a "serious violence offence" within the meaning of s 5A of the Act. He pleaded guilty to the offence and received a discount of 25% a result. He was sentenced to three years' imprisonment commencing on 21 September 2014 and concluding on 20 September 2017 with a non-parole period of one year and nine months concluding on 19 June 2016. He was released to parole on 20 June 2016 but was returned to custody on 8 August 2016 after breaching his parole by committing a number of further offences.
The index offence took place in the Junee Correctional Centre at a time when the defendant was serving a sentence of imprisonment for 18 months for aggravated enter dwelling with intent to inflict actual bodily harm. The victim of the index offence was another inmate who was serving a sentence for drug trafficking. The defendant formed the view that the victim had sexually assaulted a child. The defendant and a co-offender used wooden broomsticks to attack the victim in a common area of their "pod". The victim was treated in hospital for his injuries and lost consciousness on a number of occasions during treatment. He suffered a non-displaced fracture of the forearm, fractures of his nasal bones and a three-centimetre laceration to the back of his head that was sufficiently deep to expose his skull. It required suturing. He also received multiple welts on his back.
His Honour Judge Charteris SC made the following remarks when imposing sentence on the defendant:
"This was serious criminal conduct…Prisoners are not permitted to engage in vigilante attacks upon fellow prisoners in any circumstances."
The sentencing judge accepted that the defendant had had a difficult upbringing noting:
"He has been raised in appalling circumstances. He has had long exposure as a child to alcohol abuse and violence."
Significantly, his Honour observed the following in relation to the defendant's prospects of rehabilitation:
"Unless the offender wishes to address his substance abuse and also his tendency to engage in violence, then he does not have reasonable prospects of rehabilitation."
[9]
Conduct in custody
The offender was charged with 30 instances of institutional misconduct between June 2011 and January 2016. He has been charged with a further 14 institutional infringements since January 2016.
[10]
Risk Assessment Report
In accordance with s 6(3)(b)(ii) of the Act, the State's application was accompanied by a report prepared by a registered psychologist assessing the likelihood of the defendant committing a further serious violence offence. Samuel Ardasinski, psychologist, examined the defendant by way of audio-visual link on 12 January 2017. He furnished a "Risk Assessment Report" dated 25 January 2017.
While Mr Ardasinski considered that the defendant's level of comprehension was adequate for the purposes of the interview, he impressed as functioning in the borderline range of cognitive function or lower. Mr Ardasinski's conclusions regarding the defendant's background is conveniently summarised in the "Executive Summary" at the beginning of his report as follows:
"Mr Briar is a 23-year old Aboriginal Australian man who committed a serious violence offence at Junee Correctional Centre in 2012. He has been in custody for that offence of Recklessly Cause Grievous Bodily Harm (GBH) since being returned on a parole breach for further offending in mid-2016. It was noted that while Mr Briar's only act of 'serious violence' was perpetrated in custody, his criminal violence has been continuing relatively unabated since he was a juvenile. His current sentence expires on 21/9/2017 [sic].
He is currently housed in maximum security custody. Mr Briar had a lengthy history of violence prior to the index offence, including assaults, AOABH convictions and several occasions challenging Police to fight him. He is assessed as falling in the High risk category for violent reoffending, compared with other male violent offenders. Mr Briar's behaviour in custody has also been somewhat difficult to manage, with his being charged with institutional misconducts on a regular basis since being returned to custody, accruing a total of 32 charges since 2013. Mr Briar is considered untreated, as he has not yet participated in a high-intensity program aimed at addressing his violence, refusing to consent to a referral in early 2016. He has also failed to address his significant substance abuse issues."
In his report, Mr Ardasinski summarised the defendant's conduct in custody as follows:
"Overall, his case notes suggest Mr Briar is a persistently problematic inmate who presents a management problem for security staff on a regular, but not constant, basis…His interactions with custodial staff are often described as confrontational and he has been described as belligerent…He has demonstrated poor work ethic, for although he is going custodial employment in various locations, he has inevitably been terminated from his positions after a month or two for refusing to work or other non-compliance."
The evidence of Mr Ardasinski was that there are a number of higher intensity offender therapeutic programs in custody based around cognitive behavioural therapy. These programs emphasise the promotion of individual strengths to encourage the cessation of offending. They are conducted in what he described as a "therapeutic community".
The Violent Offenders Therapeutic Program ("VOTP") is a therapy program for men who have a history of committing serious violent offences. It is offered to medium-high to high risk/needs violent offenders. Completion of this program takes 12 months. It targets empirically derived risk factors for violent offenders. Participants are expected to take responsibility for their offending behaviour and their future. The VOTP has been adapted to meet the needs of violent offenders who have an intellectual disability or other cognitive impairment. This adapted program is called the Self-Regulation Program-Violent Offender ("SRP-VO"). It is run at a slower pace than the mainstream violent offender treatment program and can take between 12 to 18 months to complete. The treatment length is determined by the individual's level of risk and his needs. Mr Ardasinski describes the SRP-VO program as follows:
"…a custody based residential therapy program for men who have committed violent offences and have an intellectual disability or other cognitive impairment, as well as limited adaptive skills in the gaol environment and who need both intensive treatment and a controlled, safe environment."
There are also shorter programs, such as the "EQUIPS" programs. Those shorter programs are targeted at moderate risk offenders but are not as intensive.
The defendant did attend one and a half sessions of the EQUIPS Aggression Program but left partly through the second session and never returned.
On 20 January 2016, the defendant refused to be referred to participate in the VOTP. The reason for this, as told to the Aboriginal Services and Programs Officer Peter Rose, was that he knew he would just leave the program. It was the view of Mr Ardasinski that only the VOTP could address the defendant's needs. He was not aware of any programs in the community of sufficient intensity to respond to the defendant's needs and risk factors.
Mr Ardasinski expressed concern that the defendant continued to hold the anti-social attitudes that led to the index offence, including that the victim "deserved it". He also noted that anti-social attitudes justifying his use of violence were pervasive in his account of his prior criminal history.
Mt Ardasinski concluded the following:
"The overall totality of evidence suggests that Mr Briar falls in the High risk category of violent offending relative to other adult male violent offenders. The most serious violence perpetrated by Mr Briar was committed in custody, and in company. However, his violence in the community had approached the threshold of 'serious violence' (but not yet met it), but for the intervention of others or the sheer lack of his assault victims.
It is considered probable that future violence could conceivably approach the threshold of a 'serious violence offence' as defined in [the Act] given Mr Briar's history of escalating violence, his young age and his lack of insight into how to avoid a return to risk factors such as alcohol or drug use. Should Mr Briar return to a situation in which he is associated with antisocial peers who condone or encourage violence and alcohol abuse, the potential is very real that the resultant violence may result in significant injury to victims."
Mr Ardasinski affirmed an affidavit on 25 August 2017, which was before me on this application, in which he concluded that the defendant falls in the highest risk category for violent offences, including serious violent offences. He opined that he required a lengthy period of intensive treatment.
[11]
Report of Professor Susan Hayes
Professor Hayes met with the defendant on 9 August 2017. She confirmed that the defendant falls within the mildly intellectual disabled range. He operates at a level lower than 99% of his age peers. His communication skills are worse. She assessed him as being moderately intellectually disabled insofar as communication skills are concerned. She confirmed that he has little insight into the reasons for his offending and a lack of remorse and empathy. She stated that he has low motivation to change his offending behaviour. When asked by Professor Hayes what he would do if he were released from custody, he responded that he would probably go back to committing offences and using drugs and alcohol.
The conclusion of Professor Hayes is that the defendant poses a risk of committing a further serious violence offence as defined by the Act. She opined that there is a "…likelihood that he will commit a further serious violence offence within a short period of time post release." She was not satisfied that, even with intense supervision, the risk could be met by a supervision order. She identified drugs and alcohol abuse as being acknowledged risk factors. She noted that his violence has often been unprovoked and impulsive, has involved victims across a wide age range, and has included group violence.
She noted that the defendant's risk management considerations include:
"…cognitive distortions and criminal attitudes, substance abuse, interpersonal aggression, poor emotional control, impulsivity, violent lifestyle and criminal peers, release from maximum security rather than a stepping down process, poor community support, poor compliance with supervision, mental disorder, violence during incarceration, weapon use, lack of work ethic, unstable relationships and lack of insight into violence. He has attitudes consistent with criminality. Risk scenarios include substance abuse, perceiving a threat, association with criminal peers and feeling that he is being targeted by Police or others in authority. He has few potential protective factors."
Professor Hayes based her conclusions not only on the defendant's substance abuse issues and intellectual disability, but also on the fact that the defendant has not completed any programs directed towards his violent offending.
Professor Hayes observed that it is reasonably unlikely that a positive change in risk factors could be achieved, given his previous non-compliance with conditions and his unwillingness to engage in rehabilitation programs. She noted that it is unlikely that he would be in a position to participate in a suitable violent offenders program in the community under an ESO. She noted that the SRP-VO program is only available in custody and requires 12 to 18 months to complete.
The conclusion was that the defendant poses a risk of committing a further serious violence offence and that the risk could not be managed in the community under an ESO.
[12]
Report of Dr Andrew Ellis
Dr Ellis saw the defendant on 18 August 2017. He diagnosed the defendant as having an anti-social personality disorder, a substance use disorder and an intellectual disability
Matters raised in his report that gave Dr Ellis concern included the defendant's frank admission that "…he would often have makeshift knives or shivs in prison." Dr Ellis also confirmed that the defendant has little insight into his tendency to commit violence. When he was asked about the index offence, he could not provide an explanation for his conduct. He said that, "Taking the law into your own hands is all right, as long as you can get away with it."
Dr Ellis noted that it is not possible to determine whether an individual person will reoffend by committing a serious violent offence. It is only possible to identify risk factors. Nor does any tool specifically assess serious violent offending, rather than violent offending per se. He noted that offences of serious violence are rarer and thus the statistical methods are unable to detect them reliably in large samples.
Despite the inherent limitations in assessing an individual's risk of committing a serious violence offence, Dr Ellis had regard to the defendant's history of violence beginning at an early age, his poor record of employment, his lack of insight and substance abuse issues and his limited personal community supports. He was of the view that there was no advantage in the defendant participating in any rehabilitation programs in custody as opposed to a non-custodial setting.
Dr Ellis noted:
"In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Briar would fall into a group of persons with a risk for violent offending offending [sic] that is statistically high in frequency with potential for serious consequence in his specific case, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk."
Dr Ellis noted that management in the community will pose challenges given the requirement to follow rules and structure. He noted the potential benefits of further incarceration, such as an ability to observe the defendant on leave for work release as well as the advantages of further education and vocational training. He was of the view that suitable community accommodation could be identified. He suggested that specific medication to reduce impulsivity and anger could be trialled. Overall, Dr Ellis was of the view that the offender poses a high risk of committing a serious violence offence, but did not rule out management of that risk by way of supervision in the community.
[13]
Conclusion
Overall, the material before me shows that the defendant has a clear history of problems with violence beginning in adolescence. It has been accompanied by other forms of persistent antisocial behaviour. Much of the reported violence is related to interpersonal disputes. He has no record of employment. His pattern of violence is clearly associated with serious substance abuse. The fact sheets note that he is often intoxicated during offences. He displays little insight into his propensity for violence and has little understanding of the need for treatment and management. In fact, the material before me indicates that he has refused the assistance offered to him. He has a limited support system. He remains untreated. In addition to his serious drug and alcohol problems, he has been diagnosed as having an anti-social personality disorder and an intellectual disability.
I am satisfied that the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of a high risk violent offender CDO or ESO. That is, I am satisfied that the offender's current custody will expire before the proceedings are determined, and also that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender ESO or CDO.
[14]
ORders
I make the following orders:
1. Pursuant to s 18B of the Crimes (High Risk Offenders) Act 2006 (NSW), order that the defendant be subject to an interim detention order for 28 days commencing from 20 September 2017.
2. Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), issue a warrant for the committal of the defendant to a correctional centre.
3. Stand the matter over for directions on Friday, 13 October 2017 at 2pm.
[15]
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Decision last updated: 20 September 2017