State of New South Wales v Bugmy

Relevant law

1. The primary objectives of the Act, as they apply in these proceedings, are to provide for the extended supervision of an offender who is adjudged to be a high risk violent offender in order to ensure the safety and protection of the community (s 3(1)) and to encourage such an offender to undertake rehabilitation (s 3(2)). The protective purpose in the Act is fundamental to the operation of the Act and the touchstone for the imposition of both interim and final orders.
2. Section 5E(1) of the Act provides that an offender can be the subject of a high risk violent offender extended supervision order "if and only if" he or she is a "high risk violent offender". Section 5E(2) provides that an offender is a high risk violent offender if he or she is a violent offender and this Court is satisfied, to a high degree of probability, that the offender poses an unacceptable risk of committing a serious violence offence if they are not kept under supervision with the standard of proof bearing on that question lying between the ordinary civil standard and the criminal standard.
3. A violent offender is defined in s 4 of the Act as a person over the age of 18 years who has at any time been sentenced to imprisonment for an "serious violence offence" which is defined in s 5A(1)(a) as a serious indictable offence that is constituted by a person engaging in conduct that either causes death or causes grievous bodily harm to another person with an intention that harm of that kind be inflicted or being reckless as to causing that harm or actual bodily harm.
4. The decision to make or refuse to make an order for extended supervision is discretionary, such that the application can be refused even if the conditions are otherwise satisfied. In State of New South Wales v Anderson [2015] NSWSC 1515 at [30], Hamill J said: … the legislation provides the Court with a "true discretion" (note the use of the word "may") and that discretion must be exercised judicially and in the light of all of the information before the Court. It must be exercised in the light of the primary objective of the Act (to protect the community) and its secondary objective (to promote an offender's rehabilitation).
5. Ultimately, the determination as to whether a risk is unacceptable is an evaluative judgment to be undertaken according to the individual circumstances of each case. That evaluative judgment must ultimately be directed to an assessment of risk in the context of endeavouring to provide for the community to be secure from the risk of harm as distinct from guaranteeing its safety and protection (see Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at 646-649).

Has the plaintiff established that Mr Bugmy is a high risk violent offender?

1. Under s 9(3) of the Act and, in addition to other matters which the Court considers relevant, various matters must be considered in determining whether to make an extended supervision order.

Mr Bugmy's background and criminal history (ss 9(3)(h) and (i)) in so far as that material discloses a pattern of offending behaviour or informs the assessment of risk of him committing a serious violence offence, including the views of the sentencing judge when sentencing for the index offence s 9(3)(h1)

1. Mr Bugmy is an Aboriginal man who was raised in Wilcannia in far-western New South Wales. He is one of six siblings. Of the surviving siblings, a sister and three brothers live in Broken Hill and his father lives in Wilcannia. He has no contact with his father. His mother died in 2006. He has two children but has no established relationship with them.
2. His family life was marred by domestic violence and alcohol abuse. His home environment has been variously described as chaotic, violent and unstructured with his father inflicting significant and persistent physical violence on his mother and William and his siblings.
3. Mr Bugmy's mother has reported that as a young child Mr Bugmy was quiet, shy, and non-expressive and that it was not until his late childhood years that he began exhibiting violent behaviour which his mother attributed to his petrol sniffing. It was from age 13 that he commenced serving periods in juvenile detention ranging from six weeks up to six months. As noted in [3] above, Mr Bugmy's criminal history since that time is extensive. Dr Parker identified a trend extending from delinquency in Mr Bugmy's youth to increasingly violent and hostile offending from the age of about 15 years with almost exclusively hostile and aggressive offending of various kinds after the age of 18.
4. Mr Bugmy left Wilcannia in 1997 at age 16 to live in Warren where his then girlfriend was living with her mother and step-father. His relationship with that woman (who is mother of his two children born in 2000 and 2010) endured for approximately 13 years, but was marred by domestic violence. The relationship ended in 2010. Mr Bugmy and his former partner have maintained contact since that time and are on amicable terms. It would appear neither of them have any wish to resume any domestic relationship.
5. In imposing the sentence for the index offence in 2012, Lerve ADCJ identified four statutory aggravating factors including Mr Bugmy's extensive record of violence. His Honour also took into account the fact that the victim was a Correctional Services Officer, that the infliction of injury caused significant psychological harm and his use of the pool ball as a weapon. After taking into consideration the fact that the index offence was a result offence, and that there was no provocation and that it was unplanned, his Honour assessed the objective seriousness as being slightly less serious than the mid-range of objective seriousness for offences of its kind.
6. In considering Mr Bugmy's subjective circumstances, the sentencing judge also took into account that Mr Bugmy had grown up in circumstances of deprivation and family dysfunction and that he had mental health issues which were relevant when considering general deterrence. He considered that if Mr Bugmy were not at the time of sentence already institutionalised, "he was very close". He said: The offender is in danger of being institutionalised, and there is on the medical evidence a very great need for intensive residential full time rehabilitation. These factors clearly operate very much in favour of a finding of special circumstances despite the substantial criminal history of the offender. The offender is going to require ongoing, intensive and extensive supervision if he is going to rehabilitate himself from alcohol and substance abuse and remain offence free.
7. His Honour proposed that parole be supervised and conditional upon Mr Bugmy obeying all reasonable directions as to his ongoing treatment and counselling for alcohol and substance abuse, inclusive of entry into a full time residential rehabilitation facility until that course of treatment was completed.
8. Following the decision of the High Court to which reference has already been made, the matter was remitted to the Court of Criminal Appeal (R v Bugmy (No 2) [2014] NSWCCA 322). At [14] and [16], Bathurst CJ held: [14] … [The index offence] was a serious assault done with intent to cause grievous bodily harm to a law enforcement officer going about his duties. The assault was unprovoked and had tragic consequences for the victim. Further, although it could not be described as premeditated, it was a culmination of a course of conduct which indicated a clear intention to inflict serious harm. … [16] It is of course necessary to take the respondent's subjective circumstances into account. Further, weight must be given to the respondent's deprived background, taking into account, while his inability to control his violent approach to frustration reduces his moral culpability, it also emphasises the need to take into account the protection of the community and the need for personal deterrence [citations omitted]. In this regard the respondent's lengthy criminal record for violent offences is particularly relevant.
9. At [78]-[79] Rothman J considered that the residential rehabilitation component of the sentencing order significantly ameliorated what would otherwise be a manifestly inadequate sentence.
10. I have already noted in [14] that Mr Bugmy has successfully completed the Rainbow Lodge Residential Program and has transitioned to independent accommodation. I should also add that the results of random urinalysis since Mr Bugmy's release to parole have returned negative results. This is in stark contrast to Mr Bugmy's history of non-compliance with bail conditions and later parole conditions dating back to age 13, including conditions not to consume drugs or alcohol. As a juvenile he attended at least two separate programs in an attempt to address his substance abuse (petrol sniffing) but was excluded from both within a short time due to his disruptive behaviour. Since then he has also had numerous contacts with alcohol and other drug counsellors, with variable responses.
11. I have also already noted that Mr Bugmy became eligible for parole on the index offence on 7 April 2015. The parole authority refused to grant him parole at that time for reasons which included the desirability of him participating in a custody-based therapeutic program to address his propensity for violence and his alcohol and other drug problems prior to his release. It was also seen as critical that suitable post-release accommodation be secured. After being placed on a waiting list for a year, Mr Bugmy commenced the SRP-VO program in September 2015 and completed it in October 2016. The program was specially adapted to accommodate his lower cognitive functioning, including his functional illiteracy.
12. On 19 January 2017, Mr Bugmy was granted parole subject to a range of conditions until his sentence expired on 7 April 2017. Again, as I have already noted, from 5 April 2017 he has been subject to additional supervision under the Court-imposed interim supervision orders.
13. On 2 March 2017 Mr Bugmy was charged with possession of 0.2 grams of methyl-amphetamines. He pleaded guilty. A fine was imposed. His parole was not revoked. Dr Parker gave evidence that although Mr Bugmy's possession of the drug was "concerning", it did not raise his risk level. Dr Parker said he anticipated there would be "some hiccups" early in Mr Bugmy's supervision and this breach was of that order. Other than the breach of an accommodation condition imposed by the Court as part of the interim supervision order, to which I will later make reference, the overwhelming weight of the evidence is that Mr Bugmy has responded positively to the supervision and support he has been receiving from various community agencies and, with gathering insight, he has not "acted out" violently (verbally or physically) despite situational stressors of various kinds.
14. In the course of giving evidence, each of the experts was invited to comment upon the significance of what they all agreed was a perceptible and positive shift in what has been, for many years, Mr Bugmy's inability (or unwillingness) to address a tendency to react violently when he perceived he was under challenge or subject to a threat of some kind, whether or not he was also under the influence of drugs or alcohol at the time.

The likelihood of Mr Bugmy committing a further serious violence offence taking into account the reports of court appointed experts and their evidence (ss 9(3)(b) and (c))

Dr Parker's Report

1. Dr Parker, the Senior Psychologist of the Serious Offenders Assessment Unit in NSW Corrective Services, prepared a risk assessment report on 2 August 2016 in which he set out in detail Mr Bugmy's family circumstances, education, employment, the index offence, his institutional history and his substance abuse and psychiatric concerns drawn from secondary sources.
2. Dr Parker noted that although Mr Bugmy has attracted a number of disciplinary charges in the course of serving his sentence, he has not failed a urinalysis since 2013, when he commenced on the methadone program, and has not committed an offence of violence since September 2015, which appears coincident with his participation in the SRP-VO program from 28 September 2015 to 13 October 2016.
3. Dr Parker interviewed Mr Bugmy on 29 July 2016 at Long Bay Correctional Centre over the course of 45 minutes reporting that Mr Bugmy appeared well-settled. Mr Bugmy reported to Dr Parker that he had gained immense insights from his ongoing participation in the custody-based violent offenders program and was optimistic about being able to remain alcohol and drug free and non-violent for the duration of his sentence and upon his release. Dr Parker also noted that the case notes from the facilitators of the program corroborated Mr Bugmy's self-evaluation.
4. In his report, Dr Parker addressed Mr Bugmy's history of violence and general criminality, making the further observation that Mr Bugmy appeared to have very little inhibition against violence which, together with the actuarial instruments Dr Parker used in his assessment, placed Mr Bugmy at a high risk of violent recidivism and a high risk of general recidivism. Dr Parker adhered to this opinion in his evidence despite what he accepted was a marked improvement in Mr Bugmy's attitude generally and, in particular, his capacity to moderate or suppress a potentially violent response to stressors of various kinds.
5. In Dr Parker's view, Mr Bugmy's time in the community (a period of five months at the date of the hearing) was still "early days". He went on to say: With someone like Mr Bugmy who has had a long history of growing up in deprived and violent circumstances all sorts of schemers and patterns … invite violent behaviour under certain triggers. Why I would say there's been improvement … I would say the threshold for that violence has changed so that things that in the past would have triggered automatic violence from him are no longer triggering violence. The issue is has that threshold risen to the point that normal non-violent people, and we all would probably have some trigger where we would resort to violence. The fact that none of us have been charged with violent offences suggests that that threshold is very high but it doesn't mean it's non-existent. We'd probably resort to violence if some certain extreme situation came upon us. So the issue with Mr Bugmy is firstly there's a learning thing, there's a long pattern of learned habits of behaviour which will take - which don't go away, they still exist. As his other schemer learnt to adapt, so in my report I talked about the implicit theory so there's an implicit theory of a dangerous world means that the same event that Mr Bugmy and you or I might be exposed to, comes with different connotations immediately.
6. Although acknowledging there has been no episode of physical violence since September 2015, Dr Parker said: … the program in custody, can only go so far because there's not the real life experiences.
7. In his report, Dr Parker gave close consideration to Mr Bugmy's criminogenic profile which he considered was linked to the risk of future violence. He reported that the conditions proposed as part of the supervision order addressed these features and should reduce the risk of a relapse into conduct which might precipitate a relapse into violent behaviour. 1. Criminal peers: Dr Parker noted that much of Mr Bugmy's violence is only superficially related to his peers. However, it is likely that his criminogenic attitudes are reinforced or, at best, not effectively discouraged by his peers. Dr Parker reported that Mr Bugmy has some insight into this issue. 2. Emotional control: Dr Parker noted that a number of secondary sources have noted Mr Bugmy's propensity to react violently and abusively when he perceives that he is not getting his own way. Dr Parker referred to several case notes (albeit in the past) indicating that Mr Bugmy has verbally abused staff over apparent trivialities. However, Dr Parker also acknowledged that Mr Bugmy's behaviour has improved which he attributed to Mr Bugmy's participation in treatment programs, including, as Dr Parker agreed in his evidence, the demonstrated positive adjustments he has made upon his release. 3. Substance abuse: In Dr Parker's opinion, alcohol is linked to Mr Bugmy's offending through three mechanisms: first, excessive consumption places him in contact with problematic drinkers and distances him from prosocial people; second, alcohol is a disinhibitor; and third, consumption of alcohol may trigger an attitude he perceives as effectively giving him permission to engage in violence. 4. Criminal thinking: Dr Parker considered that Mr Bugmy may exhibit the types of criminal thinking associated with violent offending; namely, normalisation of violence, an attitude of "I am the law", a "beat or be beaten" mentality and "I get out of control." Dr Parker considered that the index offence evidenced a "beat or be beaten" mentality.
8. In addressing the form and extent of the supervision orders that might be imposed under an extended supervision order, Dr Parker concluded in his report that Mr Bugmy would benefit from intensive supervision and management. He recommended the use of electronic monitoring; the obligation to provide weekly schedules of his movements; providing for unannounced visits by supervising staff; scrutiny of Mr Bugmy's social contacts, employment and leisure activities; and attending programs to address his criminogenic profile. Dr Parker expressed the opinion that the greater the level of supervision, the greater the prospect of Mr Bugmy developing a prosocial lifestyle in the community.

Professor Hayes' Report

1. Professor Hayes assessed Mr Bugmy on 3 May 2017. On the basis of that assessment and the documents with which she was briefed, Professor Hayes was of the opinion that it was likely that Mr Bugmy has a schizoaffective disorder with major episodes of depressed mood and accompanying self-harm/suicidal thoughts and actions. She also diagnosed alcohol use disorder, poly-substance dependency (in remission) and an anti-social personality disorder.
2. Professor Hayes concluded that Mr Bugmy poses a high risk of committing a further serious violence offence. She noted that he is currently engaging with community-based services and support networks. She expressed the opinion that, provided he continues this level of engagement and the high intensity of support is maintained (including expert support as "the vital ingredient"), the likelihood of reducing the risk of him committing future serious violence offences will be maximised.
3. In Professor Hayes' view, Mr Bugmy's risk of reoffending might reduce over time but this is heavily dependent on maintaining the high level of support and supervision which he currently receives, and that he remain compliant with his medication and involvement in therapeutic programs in the short to medium term.
4. As to the significance on the assessment of risk of Mr Bugmy's time in the community and the positive adjustments he has made thus far, Professor Hayes said: There are a number of issues. One is abstinence or apparent abstinence from substances of abuse and alcohol, which I think is in the past those have been an important trigger for Mr Bugmy. Secondly, he had I think at that stage begun to undertake some programs in prison, and there is evidence that for a while, at least, his behaviour changed and he gained insight into his own behaviour. I think there was a bit of a disengagement towards the end, but that was, was not significant. He didn't resort back to violence. So he received some appropriate interventions whilst he was in prison. There's also the issue of the appropriate support and quite intensive support that he's received since he's left prison, and all of these things are contributing to what appears to be a change in his insight, his impulsivity, his ability to foresee what triggers his violent behaviour and foresee the consequences of his actions. All of those are really positive interventions. In the overall scheme of things it's a fairly short period of time so far, but provided the kind of support that he's receiving continues and the abstinence from drugs and alcohol, and the involvement in programs appropriate to his level of ability, there is no reason to think that further change cannot be achieved.
5. Professor Hayes considered the interim supervision conditions to be an appropriate management plan to reduce the interplay of factors that have triggered violence in the past and that an extended supervision order with similar conditions should be for at least two years duration.

Dr Ellis' Report

1. Dr Ellis conducted a clinical interview with Mr Bugmy on 9 May 2017.
2. In his view, Mr Bugmy meets the criteria for Antisocial Personality Disorder and Substance Use Disorder. Dr Ellis considered there was insufficient evidence to found a diagnosis of a chronic psychotic or mood disorder, but observed that Mr Bugmy requires long term monitoring to determine if his reported hallucination symptoms are the product of drug use, decompensated personality function or an independent mental disorder. He noted Mr Bugmy's intellectual disability.
3. In concluding that Mr Bugmy fell into a group of persons with a statistically high risk of violent offending with potential serious consequences, Dr Ellis placed significant reliance on Mr Bugmy's history of serious violence beginning in childhood and persisting into adulthood, with additional persistent antisocial behaviours including short lived and unstable relationships and domestic violence where serious substance abuse was implicated.
4. As at the date of his report Dr Ellis noted Mr Bugmy displayed some insight into his propensity for violence, but questioned whether it was sufficient to motivate a long term change in behaviour. When invited to consider the additional advances Mr Bugmy has made since his release from custody, Dr Ellis elaborated upon that view in his evidence: Dr Ellis: Well, I think the first would be looking at the pattern of preceding behaviour and looking at how long violence had been present for. We know that people who establish a pattern of violence earlier in life are more likely to persist over time. So looking at the, the length of time that violent behaviour has been present and how frequent it is would increase the risk of that behaviour continuing on into the future. So where you've seen a change or a reduction in risk in - where there's preceding that there has been a pattern of long-term and relatively frequent violence, that you would need to see a commensurately long period of - not necessarily as long as the period of violence itself but you need to see that the absence of violence for a considerable period of time, in the order of years usually, to establish that that is not just a fluctuation in the risk level, that this is a sustained reduction in the underlying risk and that's translated into the, the absence of violent behaviour. Ms Callan: There was some exchanges before lunch about the significance of Mr Bugmy from, I think, about September 2015 onwards appearing to have conducted himself in way which did not include violence. What is your view about that duration and the circumstances in which he was in? Dr Ellis: Yeah, the circumstances of the duration are important in the context, because that context has been under both custody and supervision in the community and so you would expect a moderating effect of both of those conditions on any underlying risk of violence and so it's - there are, there are certainly signs of positive change and that the - you know, the reports in recent times only rise to the level of verbal aggression and usually in a contextual situation where there is some - there's - he is under - in a stressful situation. But the, but the - it's in the context of being under supervision and all that entails, which is the support and also the abstinence from illicit substances, being on a regular regime of medication, having psychosocial support from professional services and, and a stable living circumstance. Remove that context and you may see a different picture.
5. Dr Ellis considered that Mr Bugmy's problems in the past in maintaining engagement with treatment regimes, and the problems he has had coping with stressors of various kinds in the context of the chronicity of his psychiatric disorders, indicate a high need for professional services and a management plan for his supervision to contain the potential for further violence. Dr Ellis gave evidence that these psychological disorders and Mr Bugmy's intellectual disability are: … all long-term conditions, the natural history of all of those conditions is that they, they take years to make significant changes in them. That antisocial personality is probably the most relevant in that that is the most directly related to risk of aggression and there is some evidence that he has got changing attitudes in terms of antisocial attitudes that he used to display are no longer present. Again, we would want to see whether that is a sustained change over time or whether that's a fluctuation. A substance use disorder, he's currently receiving substitute treatment for a substance use disorder and he is also receiving psychosocial treatment around that and that's helping to maintain abstinence from substances. But we do know that substance use disorders are often chronic and relapsing conditions and abstinence needs to be sustained for some years before you become more confident that without any support a person will continue on that path. His intellectual disability is something that's not likely to change dramatically, although, people can improve their intellectual function with practice, but it's - limits his ability to benefit as much from interventions as other people might. But also intrinsic to that, problem solving skills and impulse control and emotional regulation in persons with intellectual disability can improve over time but the - in looking at where the risk is stemming from, it's from the combination of those conditions and those are conditions that don't change rapidly. If he - if the risk was stemming from other conditions that might change rapidly, you could be more, you could be more confident that a shorter period of reduction in risk was likely to be sustained. But in this case, in Mr Bugmy's particular case, because the risk was both chronic beforehand and associated with these longer term, more difficult to change conditions, that in order to be more confident in significantly reducing the risk because of current positive improvement the, the research and clinical experience would suggest more caution.
6. In Dr Ellis' opinion, a period of five years supervision was reasonable in order to improve Mr Bugmy's functioning in the community and to allow for a refinement of the appraisal of risk going forward.

Statistical likelihood of reoffending (s 9(3)(d))

1. In Dr Parker's report, Mr Bugmy's risk of reoffending is assessed according to two actuarial risk instruments, the most recent being the Violence Risk Appraisal Guide - Revised ("VRAG-R") Dr Parker applied in assessing Mr Bugmy on 21 July 2016. Mr Bugmy's score was equal to or higher than the score of 99% of the construction sample, which places him in the highest range. Under this test, Mr Bugmy was classified as at high risk of reoffending compared to other serious violent offenders. Of violent offenders with a similar score, 76% reoffend within five years and 87% reoffend within twelve years.
2. Professor Hayes' report included statistical assessment using the STATIC-2002R measure which estimates risk of sexual and violent recidivism. Mr Bugmy's results indicated that 53% of persons with his risk level were likely to reoffend within five years. She also administered the VRAG-R, producing very similar results to Dr Parker.

Rehabilitation programs (s 9(3)(e))

1. Until recently, Mr Bugmy's attempts at community-based rehabilitation have been minimal and largely unsuccessful. I have already noted that in his teenage years continuing into adulthood there appear to have been numerous, largely unsuccessful, attempts at drug and alcohol and other counselling, including anger management. It is worth noting, however, that his access to psychological services during the term of imprisonment for the index offence was restricted because of his E1 security classification (Escapee).
2. The SRP-VO program in which Mr Bugmy participated for 12 months prior to his release is a residential therapeutic program designed for men who have a history of violent behaviour and cognitive impairment. It is conducted in a therapeutic community setting which enables the offenders to work intensively on changing the thinking, attitudes and feelings that led to their offending behaviour.
3. The SRP-VO Treatment Report dated 21 December 2016 details Mr Bugmy's participation in the program. It notes that Mr Bugmy's presentation in treatment was consistent with his assessed cognitive functioning (that is, extremely low range of intellectual functioning). He presented with difficulties understanding abstract concepts, long sentences and complex words. He showed a concrete black and white thinking style and had difficulty identifying and implementing relevant strategies. His functioning decreased when he felt overwhelmed or stressed.
4. During treatment, Mr Bugmy appeared more willing to accept responsibility for the index offences. He participated in set tasks in a timely manner and actively contributed to group related activities. However, at times of distress he presented as unwilling/unmotivated to modify his behaviour - and that became more prevalent towards the end of his time in treatment.
5. As he had completed the treatment components of the program, he was discharged in October 2016 with a recommendation that he continue to consolidate his treatment gains and work on his outstanding treatment needs with community and disability support services.
6. Mr Bugmy was due to commence attending the Violent Offenders Therapeutic Program community maintenance group in early June 2017.

NSW Corrective Services Risk Management Report (s 9(3)(d1))

1. A Risk Management Report provided by NSW Corrective Services and dated August 2016 addressed the four risk factors identified in the Parker Report (at [64] of this judgment) in the following way: 1. Weekly interviews at his place of residence or field visits to a Community Corrections Office, during which Mr Bugmy will be assisted with the practical aspects of integration back into the community. 2. Field visits to his home or the methadone clinic, both announced and unannounced, on a monthly basis with his progressive readjustment. 3. Third party contacts will be electronically monitored weekly. This includes contact with his friends and family, Forensic Psychology Services ("FPS") and attendance at medical and other health providers. The Report identifies limitations to this strategy, including the risk that Mr Bugmy may return to country New South Wales where his family resides. 4. Monitoring, schedules and curfews, and the electronic monitoring of Mr Bugmy's movements. 5. Referral to the Department of Corrective Services' psychology services, initially weekly, or as assessed by his therapeutic psychologist. Thereafter, he will be required to contact FPS fortnightly to assess his progress. 6. Referral to alcohol and other drug services: the Report notes that Mr Bugmy may benefit from individual counselling through the Aboriginal Medical Service or another indigenous provider. 7. Alcohol and other drug testing: Mr Bugmy's substance abuse will be monitored randomly by Community Corrections Officers and tested by pathology services.
2. To date, these strategies have been implemented under interim supervision orders. The question that presents on the plaintiff's application for final orders is the extent to which all or some of these conditions should be imposed.

Supervision conditions

1. Where the Court is satisfied that an extended supervision order ought to be made (as I am in this case), it may, pursuant to s 11 of the Act, direct that a person comply with such conditions as the Court considers appropriate, including, but not limited to, directions requiring that person: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, … …
2. In Attorney-General for NSW v Tillman [2007] NSWCA 119, the Court noted at [10] that the Court may impose such conditions as it considers appropriate, including constraints on a defendant's conduct that impose positive as well as negative obligations.
3. The Court is entitled to expect that that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing RA Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways.
4. That said, I note and accept Dr Parker's evidence (with which Dr Ellis agreed) that for most violent offenders, serious violence and violence simpliciter is the same behaviour with a different outcome. As Dr Parker saw it: … the index offence is a good example of that. The first two pool balls struck the victim in the back, which presumably didn't cause any serious injury, and the third ball hit the victim in the eye causing a serious injury, making it a serious violence offence. But the two previous throws were the same behaviour but with a different outcome so that for most offence - violent offenders, their serious violence is a random subset of their violence…
5. Dr Ellis emphasised that assessing the risk of violence is different from predicting a violent event since "the risk of violence fluctuates and is contextual".
6. Finally, in considering the reach of the supervision conditions that the plaintiff invited me to impose in this case, I am also acutely conscious that a statutory offence is committed if any of the conditions are breached. I was informed of the decision taken by the Department, apparently in consultation with the police, to have Mr Bugmy arrested and charged (and ultimately convicted) of a breach of a condition that he not reside with anyone, or have anyone enter or remain at his home (a condition imposed as part of the interim supervision order). The breach was a result of Mr Bugmy's girlfriend staying overnight with him on a regular basis and because two extended family members were at his home en route from their home in Wagga when police arrived to arrest him.
7. This is not the occasion to pass further judgment on the appropriateness or proportionality of that decision, including the means employed by the Department and police to affect Mr Bugmy's arrest, and/or the reasonableness of their opposition to bail necessitating his remand in custody before being released to bail the following day. In the course of the hearing I expressed considerable disquiet that Mr Bugmy was charged at all with a breach of the interim supervision condition that no one enter or remain at his apartment without prior approval. The relationship with his partner was well known to the Department and, further, when asked, she expressed no fears for her safety, while Mr Bugmy's family members told the Department that they had arrived unannounced and regretted exposing him to criticism for their thoughtlessness. The fact that four uniformed police officers were in attendance at his home to affect his arrest is, in my view, an overreach of authority to say the very least although, to his credit, Mr Bugmy did not react with physical aggression.
8. The Department's response to Mr Bugmy's relationship with a women he has known for 20 years, a relationship that had flourished since his release to parole and which, in the view of the experts, was a positive feature of his progress in the community, has rendered the plaintiff's obligation to persuade me that there is a demonstrable justification for each of the conditions I am asked to impose as part of the supervision order all the more acute.
9. Consistent with reports from various sources, including his supervising officer under the interim supervision orders, Mr Bugmy gave evidence before me that he commenced the relationship with his girlfriend since his release from custody, that she does not have any children and has been abstinent from alcohol for three years. During the hearing Mr Bugmy learnt that his girlfriend is pregnant. He gave evidence that he was eager to cement the relationship with her and to care for her and to provide for his new family.
10. The challenge in this case (as it is in many cases brought under the Act) is for the Court to strike a balance between what the evidence reveals about the competing considerations for and against the imposition of particular supervision conditions. That said, if a particular condition is to be imposed, I must be satisfied that, in combination with other conditions, it will moderate or minimise the risk that Mr Bugmy will commit an offence of serious violence in the future (and that it is appropriately directed to the statutory objectives of community protection and an offender's rehabilitation), and no more.
11. In State of New South Wales v Donovan [2015] NSWSC 1254, McCallum J noted at [2]: After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is "the most fundamental and important of all common law rights". It 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": Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ.

Conclusions

1. I have had regard to the scope of material tendered in the proceedings, including the views expressed by the experts concerning the extent of the risk that Mr Bugmy will act or react violently if one or more of the identified triggers to violence presents and his reaction to that situation is impulsive or irrational. In particular, given the established links between his past violent offending and use of prohibited drugs and alcohol, I note the risk to the safety of the community if Mr Bugmy is not required to abstain from the use of drugs and alcohol. I have also taken into account and given weight to the significant advances Mr Bugmy has made in addressing his past offending and the reasons for it, and his conduct generally since September 2015 whilst in custody and, more recently, upon his release into the community.
2. In all the circumstances, I am of the opinion that an extended supervision order should be made for a period of two years.
3. In making that order and imposing the conditions under which Mr Bugmy is to be supervised, I note that his current medical treatment is ongoing and his progress along a range of fronts needs to be consolidated. I also take into account his right to an appropriate degree of autonomy and his willingness to accept the guidance and support offered by the Department and from other agencies. I propose to moderate the number of conditions to which he will be subject from those sought by the plaintiff for those reasons.
4. I am satisfied that the level of supervision and support in the community that will be provided by the Department under the management plan which will incorporate these conditions, in cooperation with other community-based services, will operate to ameliorate the assessed risk of Mr Bugmy committing an offence of serious violence.

Orders

1. Accordingly, I make the following orders:
2. Pursuant to ss 5F and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), the defendant is subject to a high risk violent offender extended supervision order ("the extended supervision order") for a period of 2 years from the date of this order.
3. Pursuant to s 11 of the Act, the defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in the schedule of conditions annexed to these orders.
4. I note that it is the intention of the parties that a "plain English" version of the conditions is to be prepared to ensure Mr Bugmy is aware of his obligations and the need to strictly comply with the supervision orders. I direct that a signed copy of that document be forwarded to my Associate to be retained with the Court file.

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