State of New South Wales v Coe

Supreme Court of NSW|2023-09-07|Before: Adams J, Mr J, Chen J

JUDGMENT

By summons filed on 11 April 2023, the State of New South Wales (the State) seeks an order that the defendant Andrew Coe be placed on an extended supervision order (ESO) for a period of three years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).
Mr Coe is a 32-year-old Wadi Wadi man. As a younger man he was a member of the Brothers for Life (BFL) gang. On 3 May 2019, he was sentenced for conspiring to discharge a firearm with intent to cause grievous bodily harm between 23 January 2018 and 2 February 2018. He received a sentence of imprisonment of 5 years and 3 months, commencing on 26 March 2018 and expiring on 25 June 2023, with a non-parole period of 3 years and 6 months: R v Coe [2019] NSWDC 236. The non-parole period expired on 25 September 2021, and he was granted parole on 16 May 2023.
On 16 June 2023, Chen J conducted a preliminary hearing in accordance with s 7(3) of the Act and imposed an interim supervision order (ISO) with the same conditions as Mr Coe's then parole, which was due to expire on 15 September 2023: State of New South Wales v Coe (Preliminary) [2023] NSWSC 644. His Honour also made orders appointing experts to conduct examinations of Mr Coe and directing him to attend. Two reports have since been furnished to the court pursuant to those orders: a report of psychiatrist Dr Gordon Elliott dated 6 August 2023; and a report of psychologist Dr Katie Seidler dated 10 August 2023.
Mr Coe has a background of extreme disadvantage, including trauma, domestic violence and substance use as a child. When he was around 7 years old, both of his parents passed away within 11 months of each other and Mr Coe lived with different family members until his grandparents took over his full-time care. He has spent the majority of his adult life in custody. He has a history of chronic polysubstance abuse but there is currently no evidence of a current serious mood disorder or psychotic illness.
Mr Coe has made significant progress since entering the community. He is playing rugby league, making art and connecting with his culture. He has obtained a driver's licence for the first time and is currently employed. He currently lives with his partner and her 6-year-old son and is engaging positively with supervision. The expert reports describe his progress as "impressive", "commendable", "admirable", "encouraging", and "positive".

The legislative scheme

The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation.
Section 5B of the Act provides that this court may make an ESO if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
A "serious offence" is defined in s 4 of the Act as either a "serious sex offence" or "a serious violence offence". Section 5A of the Act defines a "serious violence offence" as follows: 1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person - (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to - (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A serious indictable offence is - (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act.
Although the parties both agreed that the statutory criteria were met in this matter, the State raised a threshold jurisdictional issue in its role as model litigant, namely, as to whether the index offence of conspiring to discharge a firearm with intent to cause grievous bodily harm is a "serious violence offence".
The State's position, with which Mr Coe agreed, was that the offence of discharging a firearm falls within s 5A(1)(b) of the Act.
I am satisfied that the definition of serious violence offence includes, by virtue of s 5A(1)(b) of the Act, the situation where an offender does not actually cause death or grievous bodily harm. To the extent that there is any ambiguity in the statutory language of s 5A(1)(b) of the Act (and I am not persuaded there is), the second reading speech for the Crimes (Serious Sex Offenders) Amendment Bill 2013 (NSW) that introduced s 5A also supports such a construction. As the State submitted, such a construction also supports the coherence of the Act.
Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a "supervised offender", which is defined in s 5I(2)(a)(i) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a serious offence. Mr Coe was still in custody when this application was brought.
Thus, the statutory requirements for making an ESO are that Mr Coe has committed a serious violence offence as required by ss 5A of the Act; is a supervised offender (within the meaning of s 5I of the Act); and was still in custody or supervision at the time the application was made. In addition, the court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).
The court's power to make an ESO is discretionary. Section 9(1) of the Act provides that this court may determine an application for an ESO by either making an ESO or dismissing the application. Section 9(2) and (3) of the Act provide a number of mandatory considerations to which the court must have regard in determining whether or not to make an ESO as follows: (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence.
As I accept that the index offence is a serious violence offence, the other statutory criteria are satisfied: Mr Coe has served a period of imprisonment for a serious offence: s 5B(a) of the Act; he is a supervised offender: s 5B(b) of the Act; and the application was made in accordance with the requirements set out in ss 5I and 5B(c) of the Act. That leaves the only remaining matter as being whether I am satisfied, to a high degree of probability, that Mr Coe poses an unacceptable risk of committing a serious violence offence unless he is placed on an ESO. I will consider that remaining matter under my consideration below after summarising the relevant aspects of the State's supporting material.

The supporting material

In addition to the reports of Dr Elliott and Dr Seidler which were tendered at the hearing, the State relied on the affidavits of James Palmer affirmed 6 April 2023, 26 April 2023, 6 June 2023 and 16 August 2023. Exhibit JP-1 was annexed to the affidavit affirmed 6 April 2023. In total, two lever arch folders of material were tendered on this application. The first folder comprised the Risk Assessment Report (RAR), other reports and submissions which included summaries of most of the source documents included in the second folder. During the final hearing, I queried whether there was any need for me to read the documents in the second folder and it was agreed that there was not.
I have had regard to the relevant supporting material and propose to summarise it under the headings which correlate with the mandatory considerations in s 9(3) of the Act.

The offender's criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

Mr Coe has a criminal history beginning in 2006 when he was 15 years old, involving multiple offences of violence and non-compliance with supervision and parole orders. His criminal history discloses a pattern of violent offending including the use of weapons and associating with criminal peers. He was convicted of a number of robbery and assault related offences as a juvenile for which he received probation, suspended sentences and incarceration.
As an adult, Mr Coe was convicted of common assault and affray in 2009 and 2012, using an offensive weapon with intent to commit an indictable offence in 2009, reckless wounding in company in 2010 and assault occasioning actual bodily harm in 2014. The 2010 reckless wounding offence was committed while Mr Coe was a member of BFL. There are also a range of non-violent offences, including using offensive language near a school, negligent driving, driving under the influence, supplying prohibited drugs and participating in a criminal group.

The index offence

Immediately after Mr Coe was released on parole on 23 January 2018 (for the 2014 aggravated break and enter with intent to commit serious offence in company offence), he took steps to gather firearms and ammunition on behalf of BFL. He entered an agreement with the BFL leader to locate and shoot Troy Fornaciari, a leader of the rival gang. He discussed the acquisition of firearms and ammunition with his co-conspirator using an unsophisticated code. The police facts allege that he was in possession of a firearm on the day he planned to shoot the intended victim; it was found by police when they executed a crime scene warrant. The plan stalled because his car ran out of petrol. He was taken into custody on 2 February 2018 for breaching the conditions of his parole.

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(3)(h1)

When sentencing Mr Coe for the index offence on 3 May 2019, Judge Haesler SC observed that Mr Coe found support and meaning from his connection with BFL and had adopted their lifestyle: R v Coe at [6]. His Honour accepted that he came under the malevolent influence of the group: [6], [25]. His Honour went on to observe that Mr Coe had strong family support and made the following observation in relation to his prospects of rehabilitation at [45]: "Coe's prospects for the future are guarded but the long experience of this Court is that people of his age with his terrible background are often at the crossroads when they next face release into the community. A choice needs to be made; do I continue the way I have been going or do I go back to my family and prove myself to them. Coe's real family are there for him. He is still young enough, and will still be young enough on release, to make those choices. It very much remains a matter for him."
His Honour also highlighted the recommendation that Mr Coe engage with the Violent Offender Therapeutic Management Program and held that he should be supervised and monitored for as long as practicable on release: [38]. His Honour considered the offence to be objectively serious, balancing that against him being a young man with no advantages who was socialised in custody as a juvenile and adult: [46].

The expert evidence: ss 9(3)(b), 9(3)

Both expert reports ordered by Chen J noted the steps taken by Mr Coe in reducing his risk factors. However, given his progress is recent and not yet sustained both experts supported the making of an ESO.

Dr Elliott

Dr Elliott described Mr Coe's gains since his release from custody as "considerable and encouraging". He noted that he has been making "commendable efforts to turn many of these maladaptive behaviours around". He assessed Mr Coe's risk of committing a further serious violent offence as "moderate to high" given it is early in his rehabilitation.
He reported that Mr Coe is excited about an upcoming employment opportunity that was suggested to him after he made inquiries with local elders. It involves the excavation and examination of construction sites or water works for Aboriginal artefacts and remains. He has already completed his induction and planned to start in August. He was also trying to obtain his traffic control certificate as a backup plan.
Dr Elliott also recounted that Mr Coe has obtained his driver's licence for the first time and has a car. He is playing rugby league for the first time since he was 16 and works on Indigenous art painting on canvas every other day. He has completed one artwork for his parole officer and has been offered a commission by a local company. Mr Coe described his art as his chief connection with culture, but he is also in contact with local elders. He explained that his cousin, a mentor for Indigenous children at local schools, offered to pay him to play the didgeridoo at these schools, but Mr Coe said he needed to get back into practice with the instrument first.
Dr Elliott observed that Mr Coe proudly described his relationship with his partner and said they have "been best friends for a while". He has been doing the "man chores" and has a close bond with his partner's child, who he takes to local parks. He and his partner are trying to save for a new car and eventually a house and are trying to fall pregnant. His partner and family, including his aunts, sister, nephew and nieces have been supportive.
Mr Coe spontaneously described his key risk factors for reoffending, being his associations and substance use problems. He told Dr Elliott that he does not spend time with his old associates, noting that his partner does not approve of them, and has not used drugs. He said he was "doing good" and was "happy with" himself. Mr Coe said that he realised he was wasting his life and that he "promised [his] nan that [he] wouldn't go down that track". He is sleeping well, commenting that "the kids" tire him out. Dr Elliott agreed that his key risk factors are collusion with antisocial associates and substance use.
Dr Elliott noted that Mr Coe was six or seven years old when both his parents died and he was subsequently raised by his grandparents, who are still alive. His grandmother is currently unwell in hospital which is a key stressor for him. His parents had substance use disorders. He attended three different schools as his family moved around. School was difficult as he was illiterate, but he has since learnt to read and write. Mr Coe confirmed that he was sexually abused in a Juvenile Justice Centre and a claim for compensation is underway.
Dr Elliott reported that Mr Coe denied a history of a major depressive illness and gave an account of his substance use history that was at odds with the documented history. He denied using methamphetamines in the past six years or having used them intravenously, which is inconsistent with the RAR of Cherice Cieplucha and Patrycja Luketic and the assessment by Ricardo Schwanz that reported he was using extremely high levels at various times. He also minimised his opiate use and gave an account that would not have made him eligible for Buvidal, which is currently injected monthly. Buvidal is used as maintenance treatment for opioid dependence. It is the only medication that he is currently on, and he has a plan to reduce his intake.
Dr Elliott opined that there was no evidence on his assessment that Mr Coe has a major mental illness such as a serious mood disorder or a psychotic illness. He considered it plausible that Mr Coe has features of post-traumatic stress disorder, but Mr Coe was unwilling to discuss trauma during their interview. He observed that Mr Coe has repeatedly been diagnosed with an antisocial personality disorder but noted that if Mr Coe continues his recent progress that diagnosis could become historical. Both parties noted at the hearing that this would be an exceptional result if achieved.
In Dr Elliott's opinion, Mr Coe was well aware of his current ISO conditions and made positive remarks about his recent interactions with police. Mr Coe said this of the ESO: "They want to put more [conditions] on me. They think I'm at risk of reoffending. I think they should give me a chance because I'm doing the right thing this time."
Dr Elliott also reported that Mr Coe's Parole Officer, Chad Haynes, remarked that Mr Coe has been "really compliant" and is doing "really really well".
While Dr Elliott recommended an ESO, he expressed concerns that an ESO of three years with the conditions proposed in the summons would place Mr Coe "at high risk of returning to custody for a relatively minor infraction that would not [otherwise] be considered a crime". He also noted his concern that three years of stringent conditions could provoke resentment and self-sabotage, place an unrealistic burden on Mr Coe's relationship, be dispiriting and engender a sense of hopelessness. He assessed a three-year ESO to be appropriate if the conditions were less restrictive or if the ESO team make efforts to progress him to less supervision relatively quickly.
Both Dr Elliott and Mr Coe expressed concern about the proposed scheduling condition. Mr Coe said, "I don't know whether you know with black fellas, but we don't know what we're going to get up to." Dr Elliott reported that he spoke seriously of his need to visit his grandmother at short notice and to drive his grandmother, partner and her son to appointments and school as they do not have licences. He observed that scheduling may be counterproductive to his rehabilitation and considered there to be a cultural dissonance between the rigid requirement of a weekly schedule and the fluid and flexible nature of an Indigenous approach to planning and Mr Coe's family commitments.
Dr Elliott reported that Mr Coe also objected to the search and seizure condition because of the impact on her partner and her child. He remarked that it was intrusive, particularly when he is "trying to do the right thing". Dr Elliott expressed sympathy for Mr Coe's concern and noted it would likely be a considerable stress in the relationship, particularly if it happened at short notice. He suggested that if the court does impose this condition, the search should be undertaken with sensitivity and discretion.
Dr Elliott observed that Mr Coe was uncertain as to how employment or training conditions would affect him and suggested that he would need to tell his parole officer of what he was doing regardless. Dr Elliott suggested the requirement for a Departmental Supervising Officer (DSO) to vet potential employment could hamper his efforts to work.
Mr Coe said that he had no objection to a condition restricting his gambling but denied any current gambling problem. He reported that he and his partner go to the pub and play the poker machines, but it is "not a problem". Dr Elliott observed that the RAR recorded a gambling history suggestive of a pathological gambling disorder and noted there is potential for it to become a stress.
Dr Elliott also advised that there are considerations for his accommodation conditions in light of the fluid Indigenous kinship approach to a primary residence. Mr Coe did not believe this would be an issue as he said he is intent on residing with his partner full-time.

Dr Seidler

Dr Seidler opined that Mr Coe presents with some ongoing risks related to future violent offending, but that these risks are mitigated to a degree by developing protective factors. The majority of risks are historical and a function of his past criminal history, antisocial connections, drug dependence and antisociality. She observed that he has made important changes in recent years however they are yet to be sustained and he may be vulnerable if there are changes to his lifestyle, relationships, routine or functioning. She considered a three-year ESO to be appropriate.
It was Dr Seidler's assessment that there was no evidence of formal thought disorder, delusional thinking or psychotic processes. She noted that Mr Coe has historically been diagnosed with PTSD, a depressive condition, polysubstance dependence and an anxiety disorder. He has worked with a number of psychologists and identified the strategies he learnt through sessions and programmes. Mr Coe accepted that he has had difficulties with anger regulation however he no longer considers it an issue. She observed that Mr Coe's violence has generally been impulsive and reactive. Like Dr Elliott, Dr Seidler observed that the antisocial personality disorder is seemingly in remission.
Dr Seidler reported a history of problematic substance use and dependence, particularly of methamphetamine, which he smoked and injected intravenously, heroin and abusing buprenorphine while in gaol. Mr Coe explained that he has only committed offences while substance affected and claimed he is "over it" and is motivated to change is life and avoid relapsing into substance use. He does not feel he needs further treatment. Mr Coe denied a history of problematic gambling to Dr Seidler.
Dr Seidler recounted that Mr Coe has moved through a "repeated cycle of release, relapse, reoffence and reincarceration" with little time in the community. He has made "important changes, which includes developing prosocial goals, challenging previous attitudes and values, desisting from substance abuse and committing to a reportedly stable, intimate relationship". He has demonstrated significant changes in his attitude and behaviour and insight into his offending. He has expressed interest in mentoring young people, so they do not "waste their lives" and hopes to communicate that "you don't have to follow everyone else". Mr Coe reported that he now has different motivations, such as his partner and football, and does not want to return to custody as he has "lost so much of (his) life in gaol", whereas previously he did not care about this.
Dr Seidler also reported that Mr Coe was sexually abused in custody by an officer which "messed him up a bit" and he began to suffer intense anxiety and he had nightmares. He described feeling on edge and being hypervigilant, which persisted when he was in adult correctional centres. He suggested that this fear around officers precipitated many of his aggressive and violent responses to officers during his years in prison. He also experienced overwhelming panic and said that he turned to drug use to alleviate the symptoms and distress. He reported having vivid and distressing memories of another assault in custody.
Dr Seidler recounted that Mr Coe was introduced to BFL whilst in custody. He became involved for comfort, safety and connection. Since most recently being released, he has tried to separate from his anti-social peers and recognised the negative impact they have on him. He is developing friendships with people in his league team, his cousins and their friends. He has been with his partner for three and a half years and wants to "settle down".
Mr Coe explained to Dr Seidler that he was willing to work with the ESO and believes that it may be of some benefit as the conditions are always on his mind. However, he expressed concerns about the schedule and that it would "set (him) up to fail". Dr Seidler's opinion was that this condition would create stress for Mr Coe about being breached for a minor matter and said "ideally… there would be some flexibility in how this is administered so as not to result in unnecessary risk".
In relation to the condition requiring Mr Coe to provide information relating to financial affairs to a DSO, Dr Seidler noted that she "cannot see any value in this condition in terms of reducing risk, again other than supporting greater accountability and responsibility".
She also found the condition requiring the DSO's permission to join or affiliate with a club to have little relevance and expressed a number of concerns about the condition requiring the disclosure of criminal history (condition 30), including the questionable utility, stress for Mr Coe and lack of safeguards.
Dr Seidler also doubted the conditions requiring Mr Coe to consent to healthcare professionals sharing information about him with each other and other authorities as some information is irrelevant to risk management. She noted that Mr Coe is entitled to confidentiality to help build trusting therapeutic relationships.

Risk Assessment Report

Patrycja Luketic prepared a supplementary RAR on 5 June 2023 and a RAR on 15 December 2022. In both the first and supplementary RAR, she assessed Mr Coe as falling within the high risk category for violent offending relative to other adult male violent offenders and that it is "possible" that future violence could approach the threshold of a "serious violent offence". The supplementary RAR described his use of violence as habitual and extensive, noting that his violence generally occurred without provocation, was committed in company and with the use of various weapons.
Ms Luketic observed that it seems Mr Coe's juvenile and adult years were entrenched in drug use and that his offending behaviour is linked to drug use. She reported that at one stage Mr Coe used up to 1.2 grams of methamphetamine intravenously and smoked 3.5 grams daily. She also noted that Mr Coe endorsed a problematic gambling pattern and "betting more than he could afford to lose".
Ms Luketic reported that Mr Coe met the criteria for major depressive disorder, generalised anxiety disorder and PTSD following the sexual abuse in a Juvenile Justice Centre and witnessing the death of a friend. He was diagnosed with substance induced psychotic illness in 2014 however now denies experiencing any perceptual disturbances during assessment.
A high density of treatment needs were identified, including violent lifestyle, criminal attitudes, work ethic, criminal peers, interpersonal aggression, emotional control, violence during institutionalisation, weapon use, substance use, stability of relationships, release to high-risk situations, violence cycle, impulsivity, cognitive distortions and compliance with supervision.
Ms Luketic assessed that the most likely scenario for further offending would be if Mr Coe returned to a similar way of life as at the time of offending, which would occur in the context of poor coping, substance use and the influence of a negative peer network. In those circumstances, she suggested he would be more likely to act out aggressively or violently particularly in response to a provocation if he feels his needs have not been met and/or perceiving a threat of some sort. She also noted that there is potential for Mr Coe's mental state to deteriorate if he is not active in managing it or if there are stressors, which could lead to impulsive behaviour.
Ms Luketic noted that Mr Coe's partner and family support and his intention to engage with a community psychologist are protective factors.

Previous level of compliance with supervision orders: ss 9(3)(e2), 9(3)(f), 9(3)(g)

As noted above, Mr Coe was on parole at the time of the index offending. In fact, he was in the community for just ten days before he was arrested and his parole revoked.
Mr Coe's behaviour in custody has varied. At the time the RAR was prepared, he had been sanctioned 37 times throughout his various sentences for rule-breaking, generally for violence and substance use. He has been on three segregation orders during his most recent incarceration. However, he has also had periods of overall compliance before his behaviour deteriorated. While his behaviour was generally more stable since 2020, there were two incidents in March and September 2022.
He has not breached the conditions of the ISO imposed by Chen J.

Statistical testing: s 9(3)(d)

Dr Elliott, Dr Seidler and Ms Luketic each assessed Mr Coe using risk assessment tools, cautioning about the limitations of the tools. The results were as follows: 1. Historical Clinical Risk Management-20 - "moderate to high risk" of serious violent reoffending; 2. Level of Services/Case Management Inventory (LS/CMI) - "very high risk" of general recidivism; 3. Violence Risk Scale - "medium range" of violent recidivism when assessed by Dr Seidler and "high risk range" when assessed by Ms Luketic; and 4. Static Risk Factors (Actuarial Assessment - General Offending) - "medium-high risk" for general and violent offending.

Treatment and rehabilitation programmes/available courses: ss 9(3)(e), 9(3)(e1)

Mr Coe has a mixed history of engaging in recommended intervention. He has completed Getting Smart, Aboriginal Cultural Strengthening, Managing Emotions, CONNECT, EQUIPS Addiction and EQUIPS aggression. He engaged with the EQUIPS Foundation Aggression and Real Understanding of Self Help programmes during his most recent time in custody however was withdrawn after missing too many sessions due to a segregation order.
Although he withdrew consent and refused to participate in the Violent Offender Therapeutic Management Program on several occasions, he attributed this at one stage to association issues with gang members, fears of retribution for previous incidents and contentment with his placement at the time.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community s 9(3)(d1)

The Risk Management Report (RMR) was prepared by Jamie Burton on 13 January 2023. Mr Burton recommended conditions relating to the following: 1. Electronic monitoring; 2. Schedule of movements and curfew; 3. Accommodation; 4. Place and travel restrictions; 5. Review of employment and education by DSO; 6. Financial oversight; 7. Alcohol and other drugs and monitoring ; 8. Non-association; 9. Prohibition of weapons; 10. Access to the internet and other electronic communication; 11. Search and seizure; 12. Prohibition on changing identification and requiring approval to change appearance; and 13. Directing Mr Coe to engage with Forensic Physiological Services.

Other information available: s 9(3)(i)

The Offender Integrated Management System (OIMS) notes describe Mr Coe as "compliant and engaged", "polite and [responding] well to discussion", "receptive and polite" and "[presenting] well as usual". On 3 August 2023, Mr Coe's aunt told the Community Corrections Officer that at his "last football game someone from the other team whom he previously had issues with came upto [sic] and shook his hand and suggested they leave the past in the past", which was "big for Andrew".
While in custody, Mr Coe completed a Statement of Attainment for several components of a Cert III in Laundry Operations. He began a traineeship, but it was ultimately cancelled due to poor behaviour.
In an OIMS note on 3 December 2020, Mr Harrison from the Goulburn Community Corrections Office noted that Mr Coe said that he has not committed crimes without being under the influence and that he uses drugs to block out memories of horrific incidents.
The pre-sentence report dated 16 July 2014 stated that Mr Coe admitted to a serious gambling problem and said that he spent "everything on pokies" and was caught in the "drug - debt - gambling cycle".
At the final hearing, it emerged that Mr Coe has recently acquired a full time job painting houses until Christmas 2023.

Consideration: unacceptable risk test met?

As stated above, although the application is not opposed I must be satisfied to a high degree of probability that Mr Coe poses an unacceptable risk of committing a serious offence unless he is supervised under an ESO.
It has been held that the term "high degree of probability" constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal observed at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..."
The phrase "unacceptable risk" is not defined in the Act, although s 5D provides: For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
It has been held that the phrase "unacceptable risk" in the Act should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn v State of New South Wales at [82] (Basten JA). In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]): "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate." See also State of New South Wales v Loto [2018] NSWSC 1522 at [14]-[17] per Rothman J.
In considering this application, I have had regard to s 9(2) of the Act and the mandatory factors in s 9(3), which I have summarised above. I have had particular regard to the recent expert evidence of Dr Elliott and Dr Seidler as well as the RAR and the RMR.
Mr Coe's risk factors are antisocial associates, drug taking and stress. It is promising that he has shown insight into these risk factors. It is to his significant credit that he shows signs of having turned his life around. He has engaged with pro-social forces after a difficult childhood and significant periods of his youth and adult life spent in custody. This resilience and drive give cautious reason for optimism should he choose to continue down this path.
Although Mr Coe's progress is encouraging it remains relatively recent. The fact remains that he has longstanding risk factors. It is the relative newness of his positive gains which have led the experts to opine that Mr Coe remains an unacceptable risk of committing a further serious violence offence if not subject to an ESO.
As Mr Coe noted, his offending occurred whilst under the influence of illicit drugs in the context of antisocial peers. Although he is showing progress while things are going well in his personal life, a real question remains as to whether he would resort to the familiarity of drug use and anti-social peers should he find himself under stress in any significant way and/or his relationship should end.
Having regard to all of the supporting material and in particular the expert evidence, I am satisfied that the statutory criteria for the making of an ESO have been met. That leaves the remaining questions as being the duration of the ESO and the conditions imposed.
Given the evidence of the court appointed experts, these two considerations are intertwined: the length of the ESO depends on the stringency of the conditions. I accept Dr Elliott's observation that an order with stringent conditions for three years may be counterproductive for Mr Coe's progress. However, it may be appropriate to impose an ESO of that length provided the conditions are less onerous.
Mr Coe submitted that an ESO of 18 months is appropriate. He also disputed many of the conditions. I have already summarised his objections to some of the conditions as well as the opinions of the court appointed experts as to these conditions above: Dr Elliott at [35]-[40] and Dr Seidler at [47]-[49].

Conditions of the ESO

In imposing supervision conditions, the court must be mindful that it is an offence to breach a condition of an ESO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. Usually, it will be necessary for such a condition to be related to the mitigation of the relevant risk factors. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing: State of New South Wales v Burns [2014] NSWSC 1014 at [59].
At the hearing, the State pressed a number of conditions which were opposed by Mr Coe. His counsel reminded the court that the conditions need to be targeted towards the risk of serious violent offending rather than minor criminal infractions. The nub of Mr Coe's submissions about the conditions was that given his positive engagement with his parole and the ISO, there is a risk that conditions that are paternalistic or perceived by him as regressive could be counterproductive without meeting the identified risk.
Overall, I accept as a general proposition that the conditions need to be tailored to the key risk factors of drugs, gambling, and associations as well as the risk that Mr Coe might regress.
By the time of the hearing, the State no longer pressed some of the more contentious conditions including the electronic monitoring.

Scheduling

The State proposed the following amended condition: "9. If directed, you are to provide an honest summary of your anticipated movements each week, limited to where you want to go, why you want to go to the location identified, information as to how you intend to get there and during what part of the day (morning/lunch/afternoon/evening) but unconfined by any travel route or timetable. If so directed, you are to provide that summary on Wednesday prior to each week (or as otherwise agreed between yourself and a DSO), prior to the schedule commencing on Saturday. If you decide to change anything in the summary after you have provided it, including if you decide not to undertake an activity or movement, you must inform a DSO prior to the change of activity or movement or as soon as possible after any change."1
Mr Coe opposed any scheduling but as an alternate to that primary position proposed dry scheduling (which requires a defendant to note their activities and when they will be completed without needing to nominate precise times).
It was submitted that scheduling represents a regression with no connection to increased risk or managing risk.
Having regard to the matters I have already referred to in my summary of Dr Elliott and Dr Seidler's concerns, I am not satisfied that a scheduling condition is required. The condition is said to be necessary to prevent Mr Coe associating with anti-social peers but he is already required to refrain from doing so by virtue of other conditions. Given his strong family connections are one of his most positive prosocial protective factors, I am not satisfied that this condition is necessary especially as it runs the risk of interfering with his need to see his grandmother and other family members at short notice. I do not propose to impose it.

Visitors

The State proposed the following amended condition: "15. You must promptly notify a DSO of any visitor entering and remaining at your approved address and must not permit any person to stay overnight, at your approved address (other than persons under 18 or who ordinarily reside at your approved address or have been pre-approved by a DSO), without the prior approval of a DSO."
The State argued that this condition addresses the risk of Mr Coe engaging with negative associates and taking drugs with them. In relation to the impact of the condition on Mr Coe's partner and her daughter, it was submitted that the relationship will not necessarily continue into the future but that the exception for persons under 18 reduces the impact on his stepson and his friends.
Mr Coe's counsel contended that this condition does not mitigate risk, particularly as he is already required to truthfully answer questions from a DSO about who he is associating with (condition 3) and the DSO can prohibit certain associations (condition 28). It would however have a negative impact on his partner, a prosocial force in his life. She highlighted Dr Elliott's comments that Aboriginal families are more likely to move between one another's houses, which is also relevant as Mr Coe's partner is Aboriginal.
I am not satisfied that this condition is necessary given the other conditions and in light of the other arguments made against its imposition. I do not propose to impose it.

Employment

The State proposed the following condition: "20. You must not start on your own initiative any job, volunteer work or educational course without the approval of a DSO."
The State submitted that disclosure could allow the DSO to prevent potential negative associations.
As with the previous condition, counsel for Mr Coe submitted that the DSO already has powers to ask about his colleagues and to make non-association directions if necessary and that this condition is not necessary to meet risk. She emphasised that Mr Coe should be able to continue autonomously and make decisions about what is appropriate.
I am not satisfied that this condition is necessary either given the other conditions. Mr Coe is currently employed and looking forward to gaining the culturally related work I have already referred to. The basis for this condition was too speculative in any event. It seems somewhat remote to impose the condition against a risk that he may obtain employment and through that employment make an anti-social connection. Nor is it evident how his DSO pre-approving his employment could necessarily prevent him from meeting anti-social peers through that employment in any event.

Financial affairs

The State proposed: "22. You must provide any information relating to your financial affairs, including income and expenditure, if directed by a DSO."
The State submitted that this would allow for the monitoring of unexplained wealth (which would also show signs of criminal associations) and gambling.
Counsel for Mr Coe submitted that this condition is invasive and paternalistic but does not meet risk, particularly because he does not have compulsive mental illnesses or behaviours. She reiterated that the DSO would be aware if he is engaging in gambling under other conditions, pointing to an OIMS note showing he is already engaging with his DSO about gambling and the internet history monitoring condition (condition 46).
I am not satisfied that this condition meets Mr Coe's identified risk factors in that the link between this condition and his previous gambling problem is too remote and speculative as weighed against the intrusion into his privacy.

Disclosure of criminal history

The State proposed: "30. You must agree to a DSO disclosing your criminal history to another person if the disclosure is reasonably necessary."
Counsel for Mr Coe submitted that this could create stigma and hinder his rehabilitation without addressing risk.
I am not satisfied that this condition meets his risk factors which are closely tied to drug use and anti-social peers. This condition is more commonly imposed in relation to child sexual assault predators. I am not persuaded it is necessary in the unusual circumstances of this offender's case.

Clubs and organisations

The State proposed: "31. You must obtain permission from a DSO prior to joining or affiliating with any club or organisation."
The State contended that this condition addresses the risk of Mr Coe making negative associations.
Mr Coe relied on the same arguments in relation to the employment condition, emphasising that there are already conditions to address the risks without the need for paternalistic oversight into how Mr Coe spends his time.
I do not propose to impose this condition either. There is already a non-association condition, and I cannot see that this condition adds any significant protective factor.

Gambling

The State pressed the following condition: "32. You must not gamble without prior approval by a DSO. You must seek assistance in controlling your gambling if directed by a DSO."
Mr Coe proposed an alternate condition: "32. You must seek assistance in controlling your gambling if directed by a DSO."
The State submitted that although there is no evidence that Mr Coe currently has a gambling problem, gambling could pose a risk if it creates some stressful situation or could lead Mr Coe to commit crime to repay a gambling debt. Concern was raised that he may not have full insight into the risk posed by gambling.
I have considered this condition carefully. It is to be accepted that gambling has been a risk factor in the past, but Mr Coe and his partner are occasionally playing poker machines socially and it seems to me to be unnecessarily onerous for Mr Coe to have to obtain permission prior to doing so. He has so many other supports and conditions in place already. I do, however, propose to impose the alternate condition suggested by Mr Coe in relation to his gambling.

Search and seizure

By the hearing, the State and Mr Coe agreed on the following condition: "49. If the DSO reasonably believes that a search is necessary: (a) for the safety and welfare of residents or staff or persons present at the defendant's approved address; (b) to monitor the defendant's compliance with this order; or (c) because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious violence offence; then the DSO may direct, and the defendant must submit to: (a) a search and inspection of any part of, or anything in, the defendant's approved address; (b) a search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; (c) a search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or a search and examination of his person."
Mr Coe also proposed the following condition which was opposed by the State: "49A. A DSO is limited to searching the defendant no more than once per week."
The State argued that there is a risk that Mr Coe will have weapons and drugs if he falls into old associations.
Not only am I satisfied that Mr Coe's partner would not permit weapons and drugs in her home with a young child, Mr Coe is still subject to a Firearm Prohibition Order and the Suspect Target Management Program. These allow him to be searched by police in any event. His counsel noted that he was searched by police in the community on 17 and 18 June 2023 on that basis.
I am not satisfied that this condition is necessary so I would not impose it either. I am satisfied the risk is already met by other conditions.

Medical interventions and treatment

The State proposed: "55. You must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction."
Counsel for Mr Coe submitted that, as the experts noted, Mr Coe has expressed that he is "sick of talking" about his upbringing and trauma. It was submitted that his unwillingness to engage in the violent offenders' program in custody (which led to his parole being refused for a period) shows that he can be oppositional when forced to engage in something he does not want to and this could damage his positive relationship with his DSO, particularly given he has no active mental conditions to manage. It was contended that being forced to address the trauma of his childhood could have the effect of retraumatising him.
It seems to me that Mr Coe's risk factors are covered by the requirement that he attend and participate in drug and alcohol programmes and courses (condition 27) and the requirement to seek help with gambling if directed (condition 32). Mr Coe has no current diagnosis and does not want more trauma counselling. In these circumstances, I am not satisfied that this condition is necessary, and I do not propose to impose it.
The State also proposed: "59. You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO. 60. You must agree to any information being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW."
At the hearing, the State proposed to add the words "where that information is relevant to the management of the defendant's risk factors".
Counsel for Mr Coe submitted that this is invasive to his privacy and not sufficiently linked to risk factors, particularly given he has no active diagnosis. She also warned that this condition could dissuade Mr Coe from visiting health practitioners.
I am not persuaded that these conditions are necessary given that Mr Coe has no mental health or other medical issues relevant to his risk factors.

Length of ESO

I have considered the expert evidence and the respective submissions as to the length of the ESO. Given that I have accepted most of the submissions made on Mr Coe's behalf regarding conditions said to be "setting him up to fail", the conditions attached to this ESO are less strict than is usually the case. This means that the concerns raised by the experts regarding the length of the ESO are no longer applicable. On that basis, I do propose to impose a three year ESO. Not only is an ESO of that length supported by the evidence, particularly in light of the reduced conditions imposed, there is a risk that if I imposed a significantly shorter ESO, the State would seek another ESO in 18 months in any event. If Mr Coe's excellent efforts continue, it seems to me far less likely that the State will be in a position to do so.

ORDERS

Accordingly, I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) I order that Mr Coe be subject to an extended supervision order for a period of three years commencing on 22 September 2023. 2. Pursuant to s 11 of the Act, I direct that for the period of the extended supervision order Mr Coe comply with the conditions set out in Schedule A to order 1. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

State of NSW v Coe (Final) - Schedule A - Conditions of supervision.amended 4 October2023 (91238, pdf)

Amendments 04 October 2023 - Schedule A - Schedule of conditions amended under the slip rule 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: 04 October 2023

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