State of New South Wales v Briar

The defendant's personal history

1. The defendant, a First Nations man, is aged 28. He has been diagnosed as having a mild intellectual disability, which is a lifelong condition, although he does not accept that he has a disability. The defendant's early history was summarised by Professor Hayes in her report dated 10 September 2021 as follows: "… [The defendant] is the second youngest of six children, having four sisters and one brother, and he identifies as being Aboriginal. At least two of his siblings have been in custody in the past. He said that there was some sibling rivalry when he was growing up. He was the victim of violence from his father and older brothers. He said that his mother managed the family life well; they moved around a lot. His parents split up when he was a youngster aged about 5-7 years, and his father died in 2011 of alcohol-related causes. His father had been in custody on occasion. The client was fostered to an Aboriginal family at about the age of 13 years (or possibly lived with two older siblings according to a pre­ sentence report), although he wanted to return to his mother; however, he was attached to his foster family. His mother had alcohol issues. There was some violence at home, smacking and fighting; he said that his mother physically disciplined the children. He returned to live with his mother in about 2008 when she relocated to Parkes. [The defendant] attended Parkes East Public School followed by Parkes High School where he was in a special 'behaviour class'. He thought he went to Year 8 or 9 at school and left half-way through the year - he finally stated that he left in Year 9. He did not like school because he disliked being in a classroom. He denied being bullied at school. He said that he was always being suspended for fighting. When he was on suspension, he 'just walked around the town'. He enrolled in TAFE, but seldom attended … … When he is at home at Parkes, he 'goes around with the boys', usually motor-bike riding or 'cruising around'. They ride with no helmets, but he denied having any serious falls or head injuries. He said that he was happiest when he was playing football. He has not held down paid employment, and has received a Newstart allowance; he sometimes asked his family for money. He said that he would like to work, possibly in building 'or something'. When asked about his future, he replied that he would get a job, settle down, and have a relationship. His mother is his major support person. He does not have much contact with his extended family. In 2014, there was an ADVO naming [the defendant's] mother and sister as being Persons in Need of Protection (PINOPs) and preventing [the defendant] from approaching within 100 metres of either PINOP. Prior to being in adult custody he was in juvenile detention on and off for about three years."

The defendant's substance abuse history

1. Professor Hayes summarised the defendant's substance abuse history in her report dated 10 September 2021 as follows: "In my 2017 assessment, I confirmed that [the defendant] developed substance abuse problems with alcohol and other drugs during his adolescence. He started with cannabis at about the age of 13, and at about age 18 he started to use crystal methamphetamine recreationally. He continued to use cannabis, ice and alcohol. He also used Buprenorphine, speed and ecstasy. He refused to enter community-based rehabilitation programs. He was in a residential rehabilitation facility as a juvenile for about 1 ½ months, but failed to actively participate in the program. He appeared to use Buprenorphine, ice and possibly cannabis in custody in order to relax and cope (2017 assessment). He has been prescribed methadone in the past. In 2021, [the defendant] confirmed that he was on the Buprenorphine program which helps with his drug cravings. He said that in the past his drug use has been exacerbated by his criminal peers, and when he leaves prison, he intends to make new friends. He said that he thinks that the continuation of the Buprenorphine program in the community will be enough to sustain him. He informed me that he has had five 'clean urines' recently, the most recent one a couple of months prior to the interview."

The defendant's criminal history

1. The defendant has an extensive record of appearances in the Children's Court. His first such appearance was in Parkes on 6 July 2008, when he was aged 15. He was charged with two counts of assault occasioning actual bodily harm, for which he received good behaviour bonds ("bonds"). On 21 May 2009, when aged 16, the defendant received bonds for two counts of assaulting a police officer in the course of their duty ("assault officer"), affray and intimidating a police officer in the execution of their duty. At the same time, he was called up on the earlier bonds and additionally charged with contravening an apprehended domestic violence order ("ADVO"). The defendant received a probation order and 12 months supervision from Juvenile Justice. On 28 July 2010, when aged 17, he received a control order of 6 months for common assault, a further contravention of an ADVO and a call-up on the bonds. Other appearances in the Children's Court were for property-related offences, including goods in custody and larceny.
2. The defendant's first sentence of imprisonment was handed down on 20 January 2012, when he was aged 19, for a period of 18 months with a non-parole period of 10 months. That sentence was for a count of aggravated entering a dwelling, with intent to inflict actual bodily harm. The facts, as found by Nicholson SC DCJ, were that the defendant viewed the victim, a 94 year old male, from the street through a window. The victim was seated at a table in the lounge of his apartment, situated on the ground floor, doing a crossword puzzle. The defendant entered through a partially opened window, took a length of aluminium pipe, and struck the victim on the head with sufficient force to bend the pipe. When the victim rose to his feet and "yelled in horror", the defendant left. The victim suffered minor bruising and an abrasion. The defendant approached police about a fortnight later and confessed, stating that he "felt bad" about the offence.
3. In 2013, the defendant received concurrent sentences of imprisonment of 14 months with a non-parole period of 8 months for assault officer and resist officer in the execution of their duty offences. In 2014, for a common assault, he received a sentence of 7 months imprisonment with a non-parole period of 3 months.
4. In 2015, the defendant received a sentence of 3 years, with a non-parole period of 1 year and 9 months, following a plea of guilty to a charge of recklessly inflicting grievous bodily harm in company. This was the sentence that expired on 20 September 2017 and at the time of the original application for a CDO, it was referred to as the index offence. The facts as recounted by the sentencing judge, Charteris DCJ, were to the effect that on 30 July 2012, whilst in Junee Correctional Centre, the defendant and another prisoner attacked a third prisoner with wooden brooms. The victim's injuries included fractures of his forearm and nasal bones, a 3 cm laceration to the back of his head, and multiple welts on his back. The laceration exposed his skull and required sutures. During receipt of treatment, on multiple occasions, the victim lost consciousness. The attack was vigilante in nature; the victim had been charged with a sexual offence.
5. As noted, on 15 June 2017 the defendant was charged with reckless wounding, committed whilst he was at Lithgow Correctional Centre. On the first day of the trial, he pleaded guilty. The circumstances were that the defendant stabbed a fellow prisoner with a makeshift knife, or "shiv" in the context of him, that is the defendant, and two other prisoners intimidating the victim, motivated by a desire to obtain drugs.

The defendant's mental health and mental condition

1. As noted earlier, the defendant has an intellectual disability. Professor Hayes administered the Kaufman Brief Intelligence Test, Second Edition ("KBIT-2") and concluded that the defendant functions in the range of mild intellectual disability, at a level lower than 99 per cent of his age peers. This result was consistent with tests administered in 2014 by another forensic psychologist. Professor Hayes also administered the Vineland Adaptive Behaviour Scales-II and concluded that the defendant generally functioned in the mild intellectual disability range, although his communication skills fell in the moderate range.
2. Dr Ellis diagnosed the defendant as meeting the criteria for an antisocial personality disorder, stating in his report dated 26 August 2017: "He meets criteria for Antisocial Personality Disorder. There is a clear history of conduct disorder in childhood and adolescence evidenced by his criminal record plus self report and his adult record indicates multiple offences for violence and other antisocial behaviours. His report of dislocation from family, witnessing and being a victim of domestic violence is consistent with this. Exposure to trauma in developmental years predisposes to the development of this personality style. Personality disorders are chronic and pervasive conditions." (emphasis in original)
3. Dr Ellis also diagnosed the defendant as having a substance use disorder, particularly in respect of alcohol, cannabis and stimulants. He concurred with Professor Hayes' diagnosis, finding that the defendant likely had cognitive abilities in the range of mild intellectual disability. In his report dated 12 September 2021, Dr Ellis maintained the same diagnoses of the defendant.

The level of risk of reoffending posed by the defendant

1. Professor Hayes administered the Violence Risk Appraisal Guide, which assessed the defendant as being in the second highest risk category compared with other violent offenders. His recidivism probability rate over seven years was 76 per cent, and over ten years it was 82 per cent.
2. Professor Hayes noted that, following the defendant's conviction in 2019 for the reckless wounding offence, he was assessed as suitable for the "Self-Regulation Program: Violent Offenders" ("SRP-VO program"), which is designed for violent offenders identified as having a cognitive impairment. Professor Hayes described his progress, based on case notes: "[The defendant] was transferred to Long Bay to participate in the SRP-VO on 11 July 2019. He was charged with further institutional misconducts, one involving violence against a fellow participant which resulted in suspension from the program. After he completed the suspension and returned to the program, he was reprimanded in October 2020 for defacing his cell and other walls in the unit with graffiti. He was not charged, and instead offered to repaint the walls. He was progressing quite well in the group program and his level of engagement was described as adequate. Progress notes dated 1 December 2020 indicate that there was a level of insight built into his risk/needs and he appeared to have gained a solid understanding of the program content. During his time in the program, [the defendant] received several institutional misconducts including two misconducts for failed prescribed drug test, further charges for possess drug implement, and fight or other physical combat. He was suspended from the program on two occasions. He was expected to complete the program between March - April 2021, depending on his behaviour and disruptions to the group, such as lock-ins. However, he was then found with contraband, a tattoo needle in his cell, and admitted to taking non-prescribed medication, Seroquel, and was charged with institutional misconduct. He received a two-week in-house suspension and was also placed on a behaviour support plan which he successfully completed on 18 January 2021. He was then placed onto depot Buprenorphine injections to manage his drug cravings. Case notes written on 19 February 2020 state that [the defendant] continued to experience periods of decreased motivation, but developed more insight into how this impacts his behaviour in group and the quality of his written work. He appears to be developing appropriate strategies. He sometimes presents as distracted and has difficulty managing impulsive urges, including :fidgeting and being distracted. There were some improvements in his behaviour, including engaging in helpful, pro-social interactions."
3. Professor Hayes concluded that the SRP-VO program had been sufficiently successful to warrant the defendant residing in the community, subject to an ESO. Dr Ellis was sceptical of the program's capacity for reducing the defendant's propensity to commit violent offences, being instead of the view that his participation in community-based programs was more likely to assist him: "Re: Risk and Completion of VOTP As noted in my previous report there is limited evidence that cognitive behavioural programs provided in prison make a substantive difference to risk of re-offending on release. The scientific literature has been clearer on this issue since my last report. This includes general reviews covering multiple studies and locally with the VOTP that fail to show robust correlation between program completion and future violent offending (although the VOTP may show modest association with reduction in general, non-violent offending). [The defendant] showed difficulty within the program, and … at this review shows a basic understanding of principles to internally control the expression of violent behaviour, or the effect of violence on others. His completion of the program does not alter my assessment of his risk. He has multiple risk factors for violence which will continue to require professional supports in order to address them. As I previously noted, other interventions such as effective treatment of substance use, general education and vocational training are likely to have a greater impact than cognitive psychological group programs in modifying his future risk of violence. The completion of the program does demonstrate his ability to internally modify impulsive behaviour and cooperate with supervisors, so this increases confidence he would be able to cooperate with a supervision regime in the community. As per my previous report, further time in custody is not likely to alter his risk of reoffending upon entering the community. This remains the case." (footnotes omitted)

The length of an ESO

1. Neither forensic expert was asked for an opinion as to the length of an ESO, but it is apparent from their reports that they both considered that an extended period for such an order was necessary.

Conclusion

1. Accordingly, as noted, I concluded that the unacceptable risk test is satisfied and that an order for an ESO was appropriate. In accordance with the view of the forensic experts that the defendant's level of risk is long-term, I am of the view that the period of the ESO should be for four years. I now turn to the question of what conditions should attach to the ESO.

Conditions to attach to the ESO

1. The majority of the conditions that were scheduled to the summons are agreed between the parties. Some that were initially the subject of disagreement have been modified to the satisfaction of both parties and were incorporated into the amended summons filed on 22 September 2021. Some of those conditions were further amended during the course of the hearing. I will resolve those that remain the subject of dispute.

Weekly schedules

1. Proposed condition 5 concerned a weekly schedule of the defendant's proposed movements, to be provided to the Departmental Supervising Officer ("DSO") by the defendant three days in advance of its commencement. The defendant proposed that it should be a four-day plan rather than a weekly, that is seven-day, schedule, to be provided "at the DSO's request". The defendant's concern was that the time frames proposed by the plaintiff would expose him to non-compliance given the impact of his intellectual disability on his memory and cognitive functioning generally. The plaintiff resisted the defendant's proposal of flexibility as to whether and, if so, when, the schedule would be provided, since it takes time for a DSO to assess the appropriateness of where a defendant might propose to go. I drafted the following condition to reflect the competing concerns of the parties: "5. If directed, the defendant must provide a plan for each period of four days (called a schedule of movements) and this is to be provided 3 days before it is due to start."
2. Proposed condition 7 provided that the defendant is not to deviate from his schedule "except in an emergency". The defendant expressed concern that circumstances may arise in which there is insufficient time for him to obtain prior approval to deviate from his schedule, particularly in light of his intellectual disability. The plaintiff met that concern by drafting an alternative version of proposed condition 7, which I found to be appropriate and adopted. That condition provides as follows: "7. The defendant must not deviate from his approved schedule of movements except in an emergency or if there is a reasonable explanation for the deviation which is provided to his DSO or any person supervising him as soon as possible, and in any case, no later than 24 hours after the deviation."

No unapproved contact with persons in custody

1. The plaintiff proposed that the DSO's prior approval be required before the defendant could have contact with a prisoner or person on remand. The defendant opposed the proposed condition to the extent that it would oblige him to seek prior approval before telephoning a particular relative who is serving a long sentence or placing money in his prison account. The plaintiff submitted that the condition provided a necessary filter on prison contact, but that it would be administered with flexibility. I accepted the plaintiff's submissions and approved the condition as drafted.

The use of electronic communications

1. Proposed conditions 36 and 37 prohibited the use of "any coded or encrypted messaging application or service" by the defendant and required that, if such an application or service was discovered on his devices or accounts, he must provide the code or encryption. Proposed condition 38 obliged the defendant to obtain the prior approval of a DSO before utilising internet communications services. Agreement was reached between the parties that proposed condition 38 would not be challenged by the defendant. This agreement was reached on the understanding that condition 38 would permit the defendant to have a Facebook account if he has the DSO's prior approval, and the reference to "encryption" was removed from proposed condition 37. Proposed condition 36 was to be confirmed in its proposed form.

The defendant changing his appearance

1. Proposed condition 45 forbade the defendant from changing his appearance. The defendant has a beard. It was modified to permit the defendant to "trim or grow his beard" without the prior approval of the DSO.

Orders

1. On 20 October 2021, I made orders as follows: (1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant be subject to an extended supervision order ("the extended supervision order") for a period of four years from the date of this order; (2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the attached Schedule of Conditions; (3) Access to the Court's file in this proceeding is restricted such that access is permitted to a non-party only with the 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.

Schedule of Conditions Shaw Briar (81171, pdf) 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: 21 April 2022