State of New South Wales v Carney

Background to the Application

1. The defendant has a longstanding mental illness - schizophrenia. The offences that are relied on before the Court with respect to his history of violence can be said to have occurred whilst the defendant's mental illness was untreated or else inadequately treated.
2. The principal offence is that of manslaughter, of which the defendant was found guilty after a trial in 2012. The offence occurred on the 28 January 2006. The conviction for manslaughter related to a disproportionate response involving physical violence towards the deceased. The defendant was not receiving any treatment for his mental illness at the time that offence was committed.
3. A further offence occurred in December 2006 involving the dangerous or reckless driving of a motor vehicle, possession of unregistered or unauthorised firearms, and one count of maliciously discharging a loaded firearm. Again, in respect of these offences, the sentencing Judge found that the defendant was emotionally unstable and that his mental state had not at that time been stabilised with psychiatric medication.
4. Some further examples of what are categorised as custodial offences mirror the pattern which has been previously established, namely, that offences of violence by the defendant occur at a time when he is untreated or inadequately stabilised on medication.
5. The defendant is presently on parole. He is subject to a Community Treatment Order which has the effect that he obtains regular psychiatric care and that he is being treated with a high dosage of a number of appropriate, different drugs. He has also, whilst in custody, been recommended to undertake electroconvulsive therapy but that does not seem to have been administered as yet.

Discernment

1. It is not unreasonable to conclude that the risk assessment profile of the defendant is that he presents an overall medium risk of violent reoffending relative to other male offenders. That is what Mr Samuel Ardasinski, a senior psychologist with the Serious Offenders Assessment Unit, concluded on the 13 September 2008.
2. Insofar as the defendant is adequately treated, that risk is minimised. However, as yet the defendant has not had any lengthy period of release into the community subject to medication which would enable a Court to conclude that the evidence which is put before it could not justify the making of an ESO.
3. Accordingly, I am satisfied that it would be open to a Court at a final hearing to make an ESO. In those circumstances and notwithstanding that the defendant is on parole and is also subject to a Community Treatment Order, I am nevertheless persuaded it is appropriate for the Court to make an Interim Supervision Order ("ISO").
4. This conclusion accords with what the State seeks in its Summons, and the concessions made by counsel for the defendant.

Conditions of the ISO

1. Considerable debate took place about the proposed conditions in the ISO. In the course of that debate, I indicated briefly whether, in my view, they were appropriate conditions to impose. Ultimately, having indicated my view as to the appropriateness of conditions, counsel for the State prepared a consolidated document containing those conditions.
2. It is necessary to say a little about the major conditions that were sought and which did not seem to be appropriate for imposition. The first of those were three conditions under the heading Schedule of Movements. It is not uncommon to impose conditions on an ISO and ultimately on an ESO for a defendant to be required to provide a schedule of their anticipated movements a week or a fortnight in advance, thereby informing the Departmental Supervising Officer ("DSO") where they will be, when and for what purpose. Changes must be notified 24 hours in advance and there is an obligation on a defendant not to deviate from that schedule of movements except in an emergency.
3. The defendant opposed the imposition of these conditions. Briefly, it was put that having regard to the particular circumstances of the defendant, namely, that he resides at home with his parents, Gail Edna Carney and Shane Carney, his two siblings (a brother and a sister) and a nephew, and having regard to the fact that his parents are providing significant daily supervision of him, there was no need for a schedule of movements.
4. In particular, the evidence from the defendant's mother, Mrs Carney, in an affidavit which was not the subject of challenge before me, was that part of living with the defendant involves recognising that his condition and the medication he takes makes it hard for the defendant to sit still. The defendant likes to go out walking or for drives with family or family friends, often quite frequently and often without much notice. Mrs Carney's evidence is that any time he leaves the house, the defendant is accompanied by a member of his family, or else family friends. Mrs Carney states her concern that a schedule of movements and associated conditions would make it very difficult for the defendant to comply with those activities, and it would adversely affect the flexibility which is necessary to adequately care for the defendant having regard to his condition.
5. I am persuaded that in the particular circumstances of this case, obtaining a schedule of movements would be impractical in the sense that it would be likely to be changed regularly and the defendant would be at risk of breaching the condition. I am also satisfied that there is a real concern that having a restriction on his movement would adversely affect the defendant's recovery from the current state of his mental illness. In my view, the standard conditions, including provision for a schedule of movements, are inappropriate to be imposed in this case, and I indicated that they would not be imposed.
6. Another significant set of conditions about which there was argument was whether the defendant would be permitted to start any job, volunteer work or educational course without approval first being obtained from his DSO and whether he would be permitted to join any club, association or organisation, again without prior approval and, finally, whether, if the defendant started an intimate relationship with a person he was obliged to tell his DSO so that that officer may, if they chose, or inform the new partner of the defendant's criminal history.
7. The State submitted that the purpose of the conditions to which I have drawn attention was, so that a DSO could ensure that the activities in which the defendant might engage would fall within the term "pro‑social". I understand that submission to mean that the activities would not be antithetical to the improvement of the defendant's mental illness and his behaviour.
8. I am not at all certain, having regard to the defendant's mental condition and the extent of his medication, that he is very likely to get any job at all. He may well volunteer to assist with a sporting or other club and, of course, if he feels able he may well choose to undertake an educational course.
9. In my view, a clause which requires pre-approval may be viewed by the defendant as being an undue restriction on his ability to be rehabilitated by taking up a volunteer role or an educational course. I think that the proper protection of the community can be ensured by the necessity for the defendant to give his DSO seven days' advance notice of those matters. Conditions to that effect have been incorporated.
10. I decline to impose a condition that the defendant is to inform his DSO of any person with whom he starts an intimate relationship, so that his criminal history can be revealed to that person. Again, I can see that there may be many cases in which such a condition is appropriate. Particularly is this so, although not exclusively so, when a person has a history of serious sexual offending or serious violence in a domestic context. Neither of those factors are present here.
11. There is, in my view, between now and when a final hearing is to be heard, a very low chance of any intimate relationship being entered into by the defendant. The defendant is to be encouraged to enter into ongoing relationships with people, and I think that the condition which is proposed would present an obstacle to that at this stage. It is to be remembered that the context for this defendant is that he has a family very involved with his ongoing care. I have concluded that such a condition is unlikely to advance the protection of the community.
12. A significant contest occurred with respect to whether the Court should impose a condition which permits the DSO to undertake a search of the defendant, the premises where he is living or any vehicle which he owns or hires. The defendant submitted that adequate search and seizure powers exist for police officers to undertake searches of the defendant (where the appropriate conditions are established) under the Law Enforcement (Powers and Responsibilities) Act 2002,. The defendant submitted that the proper course would be for a DSO (who reasonably believes that a search is necessary) to summon a police officer to undertake that search in accordance with the existing law.
13. I accept that that may be an available option, but the issue is whether it should be the only option. A DSO is the person whom it can be assumed has the best knowledge of the defendant and his psychiatric history and make up. Any search by a DSO is likely, in my assessment, to be less intrusive and less confronting to the defendant than if it was carried out by a uniformed police officer whom the defendant did not know. As well, it seems to me that the imposition of such a condition carries with it a significant deterrent effect in the sense that the defendant would be aware that if, for the reasons set out in the conditions, the DSO with whom he comes into contact more frequently than any other authority figure, is of the view that a search is necessary, then it can be done at that moment in time.
14. In my view, it is not unreasonable to impose this condition - it is no more burdensome on the defendant than not having the condition. All it does is to provide for the search to be done by a non-police officer, and without any delay or bureaucratic steps necessary if a police officer is to be engaged. As well, because it has a deterrent effect, it seems to me that it is an appropriate condition to impose for the protection of the public.
15. Two other conditions were the subject of debate. The first was whether a condition of the ESO is that the defendant must not change his appearance without the approval of his DSO. In my view, a condition in that form, or even that which with some amendments was proposed, is simply so vague as to be incapable of realistic enforcement. As well, I take the view that the likelihood that this defendant would change his appearance so quickly that it could not be observed by his DSO, is so remote that it is not a realistic prospect. I decline to impose this condition.
16. Finally, and significantly, there were significant conditions with respect to medical intervention and treatment. The parties agree on all of these conditions, bar ones. It is obviously in the interests of the community, and the defendant, that he comply with the medication and treatment regime fixed for him, either under the Community Treatment Order, or else by his health care practitioners. It is only by his strict compliance with those conditions, that the risk he poses of committing a serious violence offence can be mitigated.
17. The one condition that is not agreed is that which requires the defendant to take all his medications in the presence of a person, or persons, approved by his DSO. I am informed that, at present, the defendant takes his medications with the assistance of one or other of his parents, and that they observe him doing so.
18. The State submitted that such a condition is appropriate because it ensures that the defendant takes his medication, and that thereby the risk of his further offending is minimised.
19. The defendant submitted that the other conditions are more than adequate to ensure that he takes his medication. The defendant pointed to the condition that he is required to take all medications that are prescribed for him and that he agrees to being tested to ensure compliance with his medication regime, as and when required.
20. The defendant submitted that there will come a time when he should be able to accept the responsibility for taking his own medication without it being done in front of his parents or an approved person. On the other hand, the State submitted that such a time may come but that it has not yet arrived.
21. The defendant has been the subject of a Community Treatment Order whilst he has been on parole, and he has presently been on parole for a little over eight months. During this time there has not been any suggestion that he has not taken his medication, nor has there been any suggestion that he has not adhered to the prescriptions, with respect to the type, quantity and dosage of medication.
22. It seems to me, in weighing up the submissions, that the time has come to allow the defendant to accept some responsibility, with respect to taking his medication, and that the other conditions adequately protect the community in the event that he does not.
23. In coming to this conclusion, I have also kept in mind my own confidence, from the evidence and the observations of what has been occurring, that the defendant has a particularly caring and dedicated family. I am confident that if the defendant does not take his medication, his family will notify the appropriate DSO or health care practitioner, so that steps can be taken to remedy any default on the part of the defendant. As well, of course, if the defendant does breach the conditions of this supervision order by failing to take his medication, then that matter can also be returned to court and additional conditions can be sought, if that is what is necessary.
24. For those reasons, I did not impose all of the conditions on the ISO that were initially contended for. Equally, I did not entirely accept all of the submissions on behalf of the defendant.
25. In considering these conditions, the guiding principles for me were to give priority to the protection of the community. That is what the legislation requires, and that is what I have done. But in considering the conditions, I have to keep in mind that to impose too many conditions would be to put a barrier in the way of the ongoing rehabilitation of the defendant, which would then mean that there was less prospect of his risk to the community being remediated by that rehabilitation. In those circumstances, I have attempted to strike a reasonable balance between the short and long-term protection of the community.

Orders

1. I will make the following orders: 1. Order, pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006, that two qualified psychiatrists, psychologists, or any combination of such persons, are to conduct separate examinations of the defendant, and to furnish reports to the Supreme Court, on the results of those examinations, within seven days of the preparation of the report. 2. Order that the defendant attend those examinations. 3. Order, pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006, that the defendant be subject to an interim supervision order from 24 June 2019. 4. Order, pursuant to s 10C(1) of the Act, that the Interim Supervision Order be for a period of 28 days, unless renewed on further application by the plaintiff for another period of 28 days, or until the proceedings are finally determined. 5. Order, pursuant to s 11 of the Act, that the defendant, for the period of the Interim Supervision Order, comply with Conditions 1-34 inclusive, set out in the Schedule to these orders. 6. Order that access to the court file for any document shall not be granted to a non-party without leave of a judge of the Court and with prior notice of the parties, so as to allow them an opportunity to be heard in respect of the application for access. 7. Stand the proceedings over to 9.00am on 18 June 2019 before the Registrar. 8. I grant the parties liberty to apply.

Monitoring and Reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
3. The defendant must follow all reasonable directions by his DSO or any other person supervising him.
4. The defendant must, to the best of his ability, truthfully answer questions from his DSO, or any other person supervising him, about what he is doing, including his compliance with the conditions of this Order.

Part B: Accommodation

1. The defendant must live at an address or addresses approved by his DSO.
2. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
3. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO, unless in the company of an approved person.

Part C: Place and travel restrictions

1. The defendant must not leave New South Wales without the approval of CSNSW.
2. The defendant must not apply for any new passport or other travel document.
3. The defendant must not go to a place if his DSO tells him he cannot go there.

Part D: Employment, finance and education

1. The defendant must not start any job, volunteer work or educational course without informing his DSO 7 days in advance.

Part E: Drugs and alcohol

1. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
2. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
3. The defendant must not enter any licensed premises (excluding restaurants, cinemas and cafes), unless the defendant is accompanied by a person approved by his DSO, without the approval of his DSO.
4. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Associations with Others (not children)

1. The defendant must not associate with people that his DSO tells him not to.
2. The defendant must not associate with any people who are consuming or under the influence of illegal drugs.
3. The defendant must inform the DSO 7 days prior to joining or affiliating with any club or organisation.

Part G: Weapons

1. The defendant must not possess or use any firearm within the meaning of s 4 of the Firearms Act 1996 or prohibited weapon as defined in s 4 and Schedule 1 of the Weapons Prohibition Act 1998.

Part H: Search and seizure

1. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: 1. to monitor the defendant's compliance with this order; or 2. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; 3. then the DSO may direct, and the defendant must submit to: 4. search and inspection of any part of, or any thing in, the defendant's approved address; 5. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; 6. search and examination of his person.
2. For the purposes of the above condition: 1. a search of the defendant means a garment search or a pat-down search. 2. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched.
3. During a search carried out pursuant to condition 20 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: 1. the safety of residents or of staff at the defendant's approved address; 2. the welfare or safety of any member of the public or any other person; or 3. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
4. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 20 to 22 above.

Part I: Personal details and appearance

1. The defendant must not change his name from "Todd William Carney" or use any other name without the approval of his DSO.
2. The defendant must let CSNSW photograph him.
3. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part J: Medical intervention and treatment

1. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
2. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
3. The defendant must take all medications that are prescribed to him by his healthcare practitioners.
4. The defendant must partake in any therapeutic regime suggested by his healthcare practitioners.
5. If the defendant knowingly ceases to take medication in accordance with the prescription, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
6. The defendant must agree to his healthcare practitioners sharing information as to his mental health and mental health medication including reports on his progress and information as to his mental health and mental health medication he has told them with each other and with his DSO.
7. The defendant must agree to any information as to his mental health and mental health medication being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.
8. The defendant must agree to testing to ensure compliance with his medication regime as directed by his DSO. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2019