State of New South Wales v Bugmy - [2017] NSWSC 855 - NSWSC 2017 case summary — Zoe

NSWNSWSC

State of New South Wales v Bugmy

[2017] NSWSC 855

Supreme Court of NSW|2017-06-15|Before: Fullerton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-06-15

Before

Fullerton J

Catchwords

[2013] HCA 37 Lynn v State of NSW (2016) 91 NSWLR 636

Source

Original judgment source is linked above.

Catchwords

[2013] HCA 37 Lynn v State of NSW (2016) 91 NSWLR 636

Judgment (15 paragraphs)

[1]

The application for final orders

The plaintiff's application for an extended supervision order for five years relied upon the following evidence: 1. An affidavit of Matthew Ashworth affirmed 7 February 2017, to which three volumes of documents were exhibited, including a risk assessment report from Dr Parker prepared in October 2016 and material relating to Mr Bugmy's criminal and custodial history and his social and familial circumstances; 2. An affidavit of Kenny Ng affirmed 7 March 2017, annexing a report as to Mr Bugmy's participation in Self-Regulation Program: Violent Offenders ("SRP-VO"); 3. A further affidavit of Kenny Ng affirmed 25 May 2017, annexing updated file notes of OIMS (Offender Inmate Management System) and other Departmental records, including information regarding a charge laid in April 2017 when Mr Bugmy was found to be in possession of 0.2 of methamphetamine; and 4. An affidavit of Recquel Smith affirmed 25 May 2017. Ms Smith is the Community Corrections Officer who has supervised Mr Bugmy since his release to parole and during the currency of the interim supervision order.
The plaintiff also tendered the reports of the two court-appointed experts being: 1. A report of Professor Susan Hayes, forensic psychologist, dated 11 May 2017 and a supplementary report of 13 June 2017; and 2. A report of Dr Andrew Ellis, psychiatrist, dated 15 May 2017.
Drs Parker and Ellis and Professor Hayes gave evidence in the proceedings concurrently. They were also in attendance when Mr Brook Friedman, the Manager of the Rainbow Lodge Program, gave evidence in elaboration of a letter under his hand dated 13 June 2017 in which he detailed the way the Program operates to assist prisoners who are assessed at high risk of reoffending by providing:

Mr Friedman gave evidence that Mr Bugmy's conduct as a participant in the Rainbow Lodge Program was exemplary, despite having to contend with the stress and difficulties of adjustment to living in a non-institutionalised setting, and despite the domestic pressures of sharing accommodation with up to eight clients at any one time. Mr Friedman said that he had never seen Mr Bugmy threaten violence to anyone or to verbally abuse anyone.
Mr Friedman reported that both as a client in residence and through his continued participation in the outreach program, Mr Bugmy has proved to be a stabilising influence on other residents by providing a positive peer group influence. Mr Bugmy has built relationships with the staff of the Rainbow Lodge, the Aboriginal cultural support worker and with visiting workshop leaders. Mr Friedman reported that Mr Bugmy has been cooperative and compliant with drug tests undertaken in conformity with the interim supervision order, and has engaged with group therapy to address his drug and alcohol issues (again, both as a resident and an outreach client) and that he has remained compliant with his medication to address his mental health.
In cross-examination, Mr Friedman explained that the operation of the outreach program involved not only the client making contact with the Rainbow Lodge when and if they needed support, but that staff of the Program also made contact with outreach clients to ensure that the supportive relationships formed in the residential program were maintained.
Mr Bugmy gave evidence in the proceedings on his own behalf. He was accompanied by Henrick Gangsater, a support worker from the Disability Support Services.
Mr Bugmy gave evidence that he was dealing well with not drinking alcohol. He said: Q. How are you going with not drinking? A. Yeah I'm pretty good actually. Q. What if you were to walk past a pub are you tempted to go inside? A. Actually to be honest I never thought of, of that actually since I've been out. Just been focused on trying to get my life together I suppose …
He said he was appreciative of the support from the Disability Support Services in assisting him to negotiate public transport and to meet his domestic commitments and that he was working with various support people to improve his reading and writing. He said he would like to be doing some work (in addition to his painting) to keep him "occupied and busy".
He said he was taking his daily dose of methadone (a dose he collects daily from the Royal Prince Alfred Hospital) and while he wants to progressively reduce his dose he is conscious of the risks involved. He said, despite his doctor preferring him to take a reduced dose, he was "frightened [he] might go off the rails". He said: I just don't want to come down too fast. I'm afraid if I do come down a little bit too fast I might start using so I just want to stay at the rate I'm at and stay on this stable dose, so I'm doing pretty good.
He gave evidence that his relationship with Ms Smith, the Community Corrections Officer, was "good" and that he regarded her as "honest" and "understanding". He said he was willing to work with her and be subject to her guidance and supervision into the future and do what she reasonably asked of him. He said of Ms Smith: She's basically the only one that's basically given me any good chance and basically yeah, she really wants me to do well actually …
Of his current obligation to wear an electronic monitoring bracelet, he said wearing it made him feel "embarrassed" because he feared that others thought he was a sex offender. He said that the bracelet was difficult to conceal because he likes walking in shorts. He said: I don't want people to think that I'm a sexual predator and I know … I done wrong and I'm a criminal at the end of the day but I'm not a sexual predator or a paedophile …
Of his current obligation to "put a weekly plan in place", he said: Been trying but been failing because sometimes I just don't know what I'm going to do at the end of the day. I don't know if I'm going to end up at the park to kick back and sit around for the day or go for a walk down the street … just sometimes it's just confusing. I sit at home and paint most of the time …
I will have something further to say about Mr Bugmy's current relationship and his expectations for the future with his partner at [95].
After Mr Bugmy had given evidence, his counsel, Mr Skinner, advised me that Mr Bugmy wished to revise the position he had taken at the outset of the hearing when it was his submission that the evidence did not support a finding on the threshold issue that the Court would be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious violence offence if not kept under supervision and that the final relief sought by the plaintiff should be refused for that reason. Mr Skinner informed me that Mr Bugmy's revised instructions were that he accepted that the Court could be satisfied on the evidence that the plaintiff had discharged the onus of persuading the Court of the threshold question. However, he maintained his opposition to the full complement of conditions proposed by the plaintiff for his continued supervision as he did that the supervision order be for a period of five years. He did accept that some conditions should be imposed, as he expressed it: I'd try to do everything right, what I'm supposed to do, I suppose, just to please them and do good by myself, I suppose.
Although in final submissions there was a significant narrowing of the issues in dispute, in large measure obviating the need for me to undertake a detailed review of the expert evidence concerning the question of the risk of Mr Bugmy committing a serious violence offence, the evidence (including the expert evidence) that informs the need for the order for supervision to be of a given length and the conditions by which Mr Bugmy will be subject for its duration will still need to be considered.
I wish to make clear at the outset that the individual and joint perspectives of the experts in the evidence they gave in the concurrent session was instructive. I have also been greatly assisted by their identification of the contextual, pathological and chronic triggers to the violent criminal conduct of offenders generally and those triggers which are personal to Mr Bugmy given his mental health (including the neurological deficits from which he suffers as a result of an acquired brain injury), his history of poly-substance abuse and the long history of his involvement with the criminal justice system.
Despite the comprehensive, reasoned and informed assessments of each of the experts that Mr Bugmy is a person at a high risk of committing a further serious violence offence (as defined), and their opinions as to the length of the supervision order and the number and content of the conditions by which Mr Bugmy should be bound, their evidence does not displace the obligation the legislature reposes in the Court to reach a level of satisfaction, to a high degree of probability, not only that Mr Bugmy poses an unacceptable risk of committing a further offence of serious violence if he is not supervised, but also the need for the Court to be satisfied that such supervision orders that are imposed are appropriate and that the order for extended supervision is of an appropriate duration.

[2]

Relevant law

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.
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.
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.
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).
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).

[4]

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)

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

[6]

Dr Parker's Report

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.
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.
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.
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.
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.
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.
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.
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.

[7]

Professor Hayes' Report

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.
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.
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.
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.
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.

[8]

Dr Ellis' Report

Dr Ellis conducted a clinical interview with Mr Bugmy on 9 May 2017.
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.
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.
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.
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.
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.

[10]

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

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).
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.
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.
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.
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.
Mr Bugmy was due to commence attending the Violent Offenders Therapeutic Program community maintenance group in early June 2017.

[12]

Supervision conditions

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, … …
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.
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.
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…
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".
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.
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.
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.
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.
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.
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.

Parties

Applicant/Plaintiff:

State of New South Wales

Respondent/Defendant:

Bugmy

Legislation Cited (2)

Crimes Act 1900(NSW)

Crimes (High Risk Offenders) Act 2006(NSW)

Cases Cited (13)

The nature of the proceedings in summary

At the time of the filing of the summons Mr Bugmy was serving a sentence of 6 years imprisonment with a non-parole period of 4 years for an offence committed in breach of s 33(1)(b) of the Crimes Act 1900 (NSW) on 8 January 2011 when he threw a number of pool balls at prison officers who were seeking to contain him, one of which hit a prison officer in the eye causing serious permanent injuries, including retinal detachment and orbital eye fractures. At the time of the commission of that offence Mr Bugmy was on remand at Broken Hill Correctional Centre for multiple charges of assaulting and resisting a police officer in the execution of duty, malicious damage to property and escape police custody.
Mr Bugmy has an extensive criminal record dating from 1994 when he was aged 12 (he is currently aged 34). He has been sentenced to imprisonment on 23 separate occasions. His criminal record includes a large number of offences of violence where actual bodily harm was occasioned (including against his former partner) in respect of which he has served increasingly lengthy sentences of imprisonment. Many of the offences of violence were committed against police, frequently in the course of affecting his arrest or the arrest of a family member, or against other authority figures.
The longest period he has spent in the community as an adult is just under 2 years when he was 20 to 21 years of age. The total period he has spent in the community as an adult is 3 years and 4 months.
Despite his extensive criminal record, the only offence that satisfies the definition of a "serious violence offence" in s 5A(1)(a) of the Act (that is, the only offence capable of invoking the operation of the Act and the orders for his extended supervision sought by the plaintiff under the Act) is the offence committed on 8 January 2011 in breach of s 33(1)(b) of the Crimes Act ("the index offence").
Alcohol and drug use has been implicated throughout Mr Bugmy's involvement with the criminal justice system, including as a juvenile. He reported to a Community Corrections Officer in May 2015 and to Dr Parker in July 2016 that when he committed the index offence in 2011 he was under the influence of amphetamines.
He was aged 8 when he first came to notice as an outpatient displaying symptoms of petrol sniffing. From age 12 he commenced using marijuana and drinking alcohol daily. He has continued to drink alcohol throughout his adult life until recent times.
He was also an intravenous heroin user for many years. He is currently being managed on a methadone program in the community which he commenced in custody in 2013.
Mr Bugmy has been treated for head injuries throughout his childhood. In 1993 (at age 12) he was hospitalised four times for head injuries resulting from assault, hitting his head on a wall and being hit on the head by an iron bar. He has attended as an outpatient on five further occasions, several of these in an unconscious or semi-conscious state.
Mr Bugmy was sentenced for the index offence in the District Court on 16 February 2012 to a term of imprisonment of 6 years with a non-parole period of 4 years. In 2014, the Crown successfully appealed against the inadequacy of that sentence however, in the exercise of the Court's residual discretion, the Court of Criminal Appeal declined to intervene, in part in recognition of the extended nature of the appeal process after an earlier successful Crown appeal (and the imposition of a heavier sentence on re-sentence) was successfully appealed to the High Court (R v Bugmy (No 2) [2014] NSWCCA 322).
The appeal to the High Court raised questions as to the relevance, for sentencing purposes, of Mr Bugmy's deprived background in which alcohol abuse and violence was endemic (Bugmy v R (2013) 249 CLR 571; [2013] HCA 37).
At [43] the Court accepted that: … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
The non-parole period imposed in the District Court in February 2012 for the index offence expired in April 2015, however Mr Bugmy was not released to parole until 19 January 2017. His sentence expired on 7 April 2017.
Pending his release to parole Mr Bugmy was accepted into a residential program operated from the Rainbow Lodge Program at Glebe. The program is designed for male prisoners who, upon leaving custody, are assessed as having high needs and a high risk of reoffending. Mr Bugmy participated in a 12 week transitional program until 24 April 2017 at which time, under the continued supervision of the staff of the Lodge under their outreach program, together with other specialised support services provided by the Community Justice Program and by Disability Support Services, he successfully transitioned to independent accommodation at Dulwich Hill provided under a two year lease by the St George Community Housing Project. It is anticipated he will continue to be a recipient of support as an outreach client of the Rainbow Lodge Program for the next two years.
On 29 March 2017, at a preliminary hearing convened under s 7(3) of the Act, this Court granted an interim supervision order pursuant to s 10B of the Act to operate for 28 days from 7 April 2017(State of NSW v Bugmy (Preliminary) [2017] NSWSC 333).
For the purposes of the preliminary hearing only, Mr Bugmy conceded that the statutory prerequisites for the making of the supervision orders on an interim basis were made out, that is, he accepted that the material contained in the supporting documentation relied upon by the plaintiff would, if proved, justify the making of an extended supervision order. Those orders included extensive monitoring and reporting conditions, including an obligation to wear electronic monitoring equipment; restrictions on those with whom he may associate and with whom he may reside or have at his home; and what he may view or access via social media. He was also obliged to abstain from the use of drugs and alcohol. Orders were also made pursuant to s 7(4)(a) of the Act appointing two experts to examine Mr Bugmy and provide reports.
The interim supervision order was extended by the Court on 27 April 2017 and further on 26 May 2017. It is due to expire on 29 June 2017.