HER HONOUR: This is an application by the State of New South Wales for orders under the Crimes (High Risk Offenders) Act 2006 (NSW). That Act seeks to address the risk posed by certain kinds of offenders at the point when they are due to be released back into the community after serving their sentences of imprisonment. The Act provides (among other things) for such offenders to be compelled to accept extended supervision or, in cases where supervision would not be adequate, to be kept in detention beyond the term of the sentences imposed upon them according to law. The objects of the Act include the encouragement of rehabilitation but the safety of the community is expressly given primacy.
The Act contemplates a two-stage process involving a preliminary hearing and a final hearing. This judgment determines the matters raised at the preliminary hearing.
[2]
Introduction
The defendant, Mr Damien Bugmy, is serving a sentence of imprisonment for manslaughter. The victim was Mr Bugmy's de facto partner. She died of a single stab wound to the back inflicted by Mr Bugmy at a time when he was extremely intoxicated by alcohol. He pleaded guilty to manslaughter on the basis of a dangerous and unlawful act and that plea was accepted by the Crown.
As it happens, Mr Bugmy was sentenced by me, in 2011. [1] It was a sentencing task which involved complex and competing considerations. Mr Bugmy is an Aboriginal man from Wilcannia, which is within the traditional lands of the Barkindji people. It is a town which exemplifies the over-representation of indigenous people in the criminal justice system and has been the focus of calls for diversionary programmes and flexible sentencing options that respond to needs specific to regional communities. [2]
The evidence at the proceedings on sentence established that, by the age of 27, Mr Bugmy had a long history of psychosocial deprivation, alcohol and drug dependence (including a period of petrol-sniffing in his teenage years), depression, self-harm and symptoms of alcohol hallucinosis (hearing voices). Mr Bugmy also had a history of prior convictions for offences of violence showing an alarming pattern of aggression and hostility towards women.
One of the complexities of the sentencing task was the obvious link between Mr Bugmy's dependence on alcohol and his tendency to violence when drunk. He was on parole at the time the offence was committed. It was a condition of his parole that he not consume alcohol. There were further conditions requiring Mr Bugmy to seek assistance for the control of his abuse of drugs and alcohol "if so directed by his supervising probation and parole officer". However, so far as the material before me at the proceedings on sentence revealed, Mr Bugmy had not in fact been directed by a probation and parole officer to undertake any drug or alcohol rehabilitation programmes or to seek any assistance of the kind evidently contemplated by the conditions of his parole.
The explanation for that surprising circumstance appeared to be a lack of adequate funding for the appropriate services. As recorded at [57] of the sentencing judgment, I was informed at the proceedings on sentence that the town of Ivanhoe, where Mr Bugmy went to live at some point after being released on parole, does not have its own probation and parole officer. Mr Bugmy's supervision was intended to be effected by a fortnightly or monthly visit by an officer from Griffith District Office. The offence occurred before any such visit took place. Accordingly, it was not a question of Mr Bugmy's being incapable of responding to or accepting the kind of intensive supervision he obviously required. Rather, the difficulty was that the resources available in the rural communities in which he lived did not extend to the provision of services of the kind evidently contemplated in the conditions of his parole.
I note, in passing, that the risk management report prepared for the purpose of these proceedings (if I have understood it correctly) proceeds on the misapprehension that Mr Bugmy dishonestly concealed his relapse into the use of alcohol from his supervising officer at that time, [3] whereas the evidence before me at the proceedings on sentence suggested that there was simply an absence of any supervision during that period.
In any event, the need for close supervision upon Mr Bugmy's next release from gaol was clear at the time he was sentenced. At [59]-[60] of the sentencing judgment, I said:
The objects of sentencing include protection of the community and rehabilitation of the offender. I am sure I am not the first to observe that this is not a binary classification. At some point Mr Bugmy will have to be released back into the community. The protection of the people in that community, and particularly the women, will not be met by a bare prohibition on his consumption of alcohol. I am satisfied that the objects of sentencing will best be served if Mr Bugmy's release is supported and monitored with intense and extended professional assistance. Accordingly, it is appropriate to fix a sentence that includes an extended period of supervision.
Ms Manuell submitted that I should make recommendations as to the level of supervision to be imposed. I would not ordinarily presume to intrude upon the performance of duties by others. However, in the particular circumstances of the present case, I would respectfully endorse the submissions put on behalf of Mr Bugmy that he will require intensive, closely-monitored supervision, counselling and support upon his release and that these social supports will need to be carefully constructed and made available to him over a lengthy period.
On the strength of those findings, I structured the sentence so as to provide for a longer potential period of supervision on parole. [4] I sentenced Mr Bugmy to a total term of imprisonment for 8 years and 3 months commencing on 14 June 2008 (the date of his arrest) and expiring on 13 September 2016. I fixed a non-parole period of 5 years and 6 months, giving a balance of term of 2 years and 9 months.
Mr Bugmy was first eligible for release on parole on 14 December 2013. However, he has not been granted parole and remains in custody. His sentence expires on 13 September 2016 at which point, leaving aside the present application, he is entitled to be released into the community with no supervision and no requirement to undertake any rehabilitation within the community.
[3]
Proceedings before the Court
The final relief sought by the State is a continuing detention order for a period of 18 months and an extended supervision order for a period of a further 3 ½ years following the expiry of the continuing detention order. The authority to make such orders is engaged where the person in question is a "high risk offender" within the meaning of the Crimes (High Risk Offenders) Act.
Before final orders can be made, the court must conduct a preliminary hearing into the application. There are two possible outcomes of a preliminary hearing. If the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of the kind of order sought, the court must make orders appointing two qualified persons to conduct separate psychiatric or psychological examinations of the offender and to furnish reports to the court. If, following the preliminary hearing, the court is not satisfied in those terms, the court must dismiss the application. [5]
The determination of the present application was greatly assisted by the comprehensive written submissions provided by both parties and the sensible approach adopted by counsel for the offender. The offender's written submissions opened, helpfully, by stating the matters that were not in dispute. The effect of the concessions made was to acknowledge that the application is competent and that the court could be satisfied in the terms of the section (that is, that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order). Mr Johnston, who appears for the offender, correctly noted that the assessment whether that test is satisfied remains a matter for the court. Having regard to the material relied upon by the State and, in particular, the risk assessment report of Dr Richard Parker, senior psychologist at the Serious Offenders Assessment Unit of Corrective Services, I am satisfied that the concession was correctly made and that the test posed by the statute is met. It follows in accordance with the terms of the Act that I must make orders appointing the two specialists nominated (in this case, by agreement, two psychiatrists) and directing Mr Bugmy to attend examinations by those specialists.
The only contest at the preliminary hearing was whether the Court should make an interim detention order. The defendant opposes an interim detention order but does not oppose an interim supervision order. He indicated that, if an interim supervision order is made, he is willing to comply with the conditions proposed in the schedule to the summons. [6]
The period of either regime (interim detention or interim supervision) would be short. As already noted, Mr Bugmy's sentence expires on 13 September 2016. A final hearing date has been fixed for 23 September 2016.
Section 18B of the Act provides:
18B Interim detention order--high risk violent offender
The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:
(a) that the offender's current custody (if any) will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order.
Section 10B makes similar provision in respect of an interim supervision order, conferring authority to make such an order if the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order.
It follows from my acceptance of the defendant's concessions noted above that the authority to make either form of interim order is engaged. The critical question is whether an interim detention order should be made in the circumstances.
When a contest as to the making of a continuing detention order arises at a final hearing, the content of the court's task is clear. It is acknowledged that the right to personal liberty, being the most fundamental and important of all common law rights, is one which cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. [7] The Crimes (High Risk Offenders) Act implicitly recognises that important common law principle in its provision for a kind of hierarchy; extended supervision orders are addressed first in the Act and must, logically, be addressed first in the court's analysis. The authority to make a continuing detention order on a final basis is engaged only where the court is satisfied that adequate supervision will not be provided by an extended supervision order. [8]
The consideration of that issue at a final hearing requires the court to make an evaluative judgment according to the circumstances of the individual case and having regard to the objects stated in s 3 of the Act, giving primacy to the object stated in s 3(1). [9]
The proper approach when an interim order is sought at a preliminary hearing is less clear. In the State of New South Wales v Atkins [2013] NSWSC 1988 at [35], Rothman J said:
It is not necessary, in making an interim detention order, for the Court to be satisfied that a supervision order would not suffice. Such a determination is necessary when final orders are to be made.
However, in State of New South Wales v Davie [2015] NSWSC 413 at [24]-[28], Button J, after referring to those remarks in Atkins, accepted a submission that, even though there is "no analogous provision that applies to interim orders in the way that ss 5B and 5G apply to final orders", the Court would nevertheless not make an interim detention order unless satisfied that an interim supervision order would not fulfil the primary purpose of the Act of ensuring "the safety and protection of the community".
A hearing before Beech-Jones J in another matter proceeded on the basis of a concession by the State that the approach stated by Button J in Davie was correct. [10]
The decision in Davie in effect endorses an approach which reads an analogue of s 5G into the provisions dealing with interim detention orders by implication. I would accept that the discretion to make an interim detention order is one that is importantly informed by the common law right to personal liberty considered above; the approach should not be one of expedience. However, with great respect to Button J, I am not persuaded that the correct approach is not to make an interim detention order unless satisfied that an interim supervision order would not fulfil the purpose of ensuring the safety and protection of the community. There may be warrant for a broader approach giving due consideration to the fact that either form of order (detention or supervision) is being made on an interim basis.
There may, for example, be cases in which the court could properly make an interim supervision order allowing a defendant to use the interim period to demonstrate a capacity to work constructively within a regime of supervision. Conversely, there may be cases in which the prospect of a final continuing detention order was so high that an interim supervision order would be regarded as being disruptive to an offender's long term rehabilitation. Each case will of course turn on its own facts.
In any event, it is not necessary for present purposes to determine those difficult questions. Even adopting the approach accepted by Button J in Davie, I have concluded that an interim detention order should be made in the present case.
There is a significant complication for the provision of adequate supervision in the present case. As already noted, the defendant has indicated that he would consent to an extended supervision order on the conditions specified by the State in a schedule to the summons. One of those conditions is "the defendant must live at an address approved by his department supervising officer".
The evidence at the hearing was that, if an extended supervision order is made at the final hearing, it is likely that the supervising officer will be Ms Recquel Smith. Ms Smith is a Community Corrections Officer employed by the Department of Corrective Services. She provided a risk management report in respect of Mr Bugmy for the purpose of the preliminary hearing and, at the request of Mr Johnston, was made available for cross-examination.
While the evidence did not reveal Ms Smith's qualifications (except to say that she is not a psychologist), her evidence is plainly important for the purpose of understanding the adequacy of the supervision that would be available to Mr Bugmy in the community.
Ms Smith gave evidence that, as the person responsible for approving Mr Bugmy's accommodation, she would require him in the first instance to reside in accommodation managed by the Community Offenders Support Programme (COSP). She considers that Mr Bugmy would require COSP accommodation because it is more stringent, offering the opportunity for intensive supervision and case management.
In theory, that is not an unreasonable approach. The difficulty is that COSP accommodation is not available to Mr Bugmy. There are only two COSP residential facilities in New South Wales, one in Campbelltown and one in Maroubra (called Nunyara). The COSP facility at Campbelltown is "unwilling to accept a referral from Mr Bugmy due to the fact that he is an untreated violent offender".
At the time of writing her report (dated 21 February 2016), Ms Smith had also spoken to Nunyara. They were also "unwilling to accept" Mr Bugmy. Ms Smith has not had any more recent contact with Nunyara. Case notes in respect of Mr Bugmy indicate that, as at 7 June 2016, there was an indication that Mr Bugmy could be reassessed for admission to Nunyara in "approximately two months" (that is, in early August).
Ms Smith made an attempt to conduct a pre-release home visit with a member of Mr Bugmy's family to assess the suitability of an accommodation proposal identified by Mr Bugmy while he was housed at Wellington gaol. However, that family member did not want the home visit to be conducted and was not prepared to provide accommodation to Mr Bugmy.
The unavailability of COSP accommodation to Mr Bugmy relates, in part, to his experience of the Violent Offenders' Treatment Programme. A case note dated 11 April 2016 records that the reason Mr Bugmy has been declined for placement at Nunyara is his potential risk to COSP staff and other residents. The note states (emphasis added):
In December 2015 Mr Bugmy was involved in a fight with another inmate which led to the use of force by correctional staff. Mr Bugmy has yet to complete intensive treatment to address his violent behaviour and attitudes. Mr Bugmy has given mixed messages regarding his willingness to participate in community based programmes such as COSP.
Mr Bugmy has undertaken some treatment to address his violent behaviour and attitudes. On 27 July 2015, he completed the "Domestic Abuse Programme". However, Dr Parker expresses the opinion in his report that:
Due to [Mr Bugmy's] entrenched history of violence, this programme is unlikely to be sufficient to address Mr Bugmy's criminogenic needs. Attitudes he expressed during the interview are consistent with this conclusion. A further referral to VOTP was made in September 2015 and efforts are being made to expedite treatment.
The reference to "VOTP" is a reference to the Violent Offenders Treatment Programme, which I would take to be the "intensive treatment" failure to complete which is cited as a reason for the refusal of COSP accommodation. In other words, it appears the attitude of Nunyara COSP centre is that Mr Bugmy will not be suitable for COSP accommodation until he has completed or at least advanced further in the Violent Offenders Treatment Programme.
According to Dr Parker's report, Mr Bugmy had a previous referral to that programme but that referral was cancelled, "based on advice (on 27/9/2012) that his LSI-R score (as assessed at that time) was not high enough and that his violent history was not generalised". It was on the strength of that assessment that Mr Bugmy was initially referred, instead, to the Domestic Abuse Programme, which he duly completed (albeit after being suspended and later re-admitted).
The LSI-R score is an actuarial risk instrument which includes both static and dynamic risk factors related to general re-offending. As I understand the content of Dr Parker's report, Mr Bugmy's LSI-R score was assessed within 18 months after he was sentenced to be "not high enough" to warrant admission into the VOTP. However, when he was assessed by the same instrument in April 2015, he was assessed as "high risk". In other words, while serving a sentence of imprisonment, Mr Bugmy's risk of violence has increased. The obvious question whether a further period in detention will reduce the same risk is one that will no doubt be explored by the court-appointed psychiatrists and at the final hearing.
To a degree, the difficulty lies in the timing entrenched in the legislation. The State cannot make an application under the Crimes (High Risk Offender) Act until the last six months of a person's sentence. I apprehend that constraint reflected a concern to afford offenders an opportunity to demonstrate rehabilitation before being ear-marked for extended supervision or continuing detention and to have the most up-to-date information available for the court's consideration. A concern, however, is the prospect that the timing can in fact work against offenders, if they are ear-marked for an application at a point in time when it is too late, before the end of their sentence, to undertake a course it is thought they should have undertaken.
Ms Smith did not understand it to be the case that Mr Bugmy will have to complete the entire VOTP before being considered for admission into either COSP facility. However, she was unsure of any actual goals he needs to reach to make himself suitable for acceptance into those facilities. She was unable to say whether there is any protocol or guideline governing the assessment of eligibility for COSP accommodation. There is no COSP accommodation in any area that is culturally relevant to Mr Bugmy. The only supervised accommodation offered by the Community Offenders Support Programme necessarily involves removal of offenders in the position of Mr Bugmy from their country, their people and their family.
In my respectful opinion, the objects of the Act might be better served by having a mechanism for clear communication to prisoners earmarked for applications under the Act of the goals they are expected to achieve in order to be eligible for acceptance into the kind of accommodation that will be acceptable to their supervising officers.
In the circumstances, regrettably, I am compelled to the conclusion that adequate supervision cannot be provided for Mr Bugmy by an interim supervision order. Although the period in question is short, the simple fact is that there is no accommodation available for him at all and certainly none where it is practicable for Community Corrections to provide him with adequate support and supervision.
For those reasons, I propose to make the interim detention order sought. I wish, however, to record a concern I have in respect of that determination.
There is no doubt that the prospect of Mr Bugmy's release back into the community presents a complex case requiring consideration of the need for protection of the community and women in particular. I accept, without equivocation, that an important consideration in that context is the concerns expressed by community corrections officers for their own safety.
The difficulties are amply recorded in a case note dated 11 May 2016, which records an internal discussion of the difficulty posed by the absence of any accommodation proposal for Mr Bugmy upon his release. The note records that, due to his "high risks and needs", regional and rural community corrections have been "resistant to case managing him as the remoteness provided limitations to the level of supervision and service provision needed by the inmate". The notes record a perception that to return Mr Bugmy to his community, Wilcannia, would pose a risk both to Mr Bugmy and to that community (perhaps reflecting an apprehension that he is at risk of retribution for the present offence). One participant in the internal case discussion evidently suggested that such resistance on the part of Community Corrections officers would amount to a refusal to "do their job" and manage Mr Bugmy within the community. That is a legitimate concern but, conversely, the note evidently records genuinely-held, well-founded safety concerns.
In some respects, the case of Mr Bugmy presents a paradigm illustration of the wholesale failure of the process of education and reconciliation contemplated by the recommendations of the Royal Commission into Aboriginal Deaths in Custody. [11] The objects of the Crimes (High Risk Offenders) Act are of course important too. But the implicit assumption of the Act (that high risk offenders can be turned into safer people while being kept in gaol) may warrant closer testing. In the case of Mr Bugmy, the LSI-R scores suggest the contrary.
It is instructive to compare the operation of the current legislation with the conclusions carefully reached by the Royal Commission. Whereas the Royal Commission made recommendations (albeit in a specific context) aimed at supporting Aboriginal people to re-establish "links to family and community which had been severed or attenuated by past government policies" (recommendation 52), in the case of high risk Aboriginal offenders from remote or rural communities, the only accommodation available through the Community Offenders Support Programme effects removal from family and community.
Whereas the Royal Commission recommended the development of policies and programmes addressing Aboriginal alcohol issues which recognised "the inadequacy of single factor explanations of the causes of alcohol dependence" (recommendation 70), [12] the approach to risk management in the present case is to focus individual blame on Mr Bugmy for his previous relapse into alcohol abuse (in circumstances where, as recorded in my judgment on sentence, no supervision or rehabilitation appears to have been offered or directed by his supervisor while he was on parole).
Finally, whereas the Royal Commission recommended the introduction of legislation to enforce the principle that imprisonment should be utilised only as a sanction of last resort (recommendation 92), the present legislation allows the use of detention not as a last resort but for the purpose of rehabilitation, giving primacy to the immediate protection of the community over long term goals.
My concern is that, if "adequate supervision" cannot be provided for some high risk offenders due to the unavailability of timely programmes in custody or a scarcity of properly-funded, community-based accommodation, there is a risk that the operation of the Act will result in a constructive increase in the terms of imprisonment imposed by courts according to law. In the circumstances I have recited, that risk would appear to be more acute in the case of Indigenous offenders. If the problem were so extreme as to operate as a constructive fetter on Court's discretion, a question would arise as to whether the Court could properly make the orders sought by the State.
[4]
Endnotes
R v Bugmy [2011] NSWSC 357
R McCausland and A Vivian, "A Tale of Two Towns: A Comparative Study of Wilcannia and Menindee [2009] IndigLawB 27; (2009) 7(13) Indigenous Law Bulletin 7
Annexure B to the affidavit of Nayomi Senanayake affirmed 11 July 2016 at p 19.8 and 21.6 of the affidavit.
cf s 44(2) of the Crimes (Sentencing Procedure) Act 1999
Section 7 of the Act in respect of applications for an extended supervision order; s 15 of the Act in respect of applications for a continuing detention order.
Defendant's outline of submissions at paragraph 4
Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ; cited recently by the Court of Appeal in a consideration of this legislation in State of New South Wales v Donovan [2015] NSWCA 280 at [58] per Beazley P, Macfarlan and Leeming JJA.
Section 5G of the Act.
Donovan at [77].
NSW v Cornwall [2015] NSWSC 742 at [10]; see also the remarks of Mason P in Tillman v The Attorney-General for the State of New South Wales [2007] NSWCA 327
Royal Commission into Aboriginal Deaths in Custody, National Reports, Volume 5 (April 1991).
And see the McCausland article cited above
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Decision last updated: 16 August 2016