State of New South Wales v Cohen

Supreme Court of NSW|2023-02-14|Before: Rothman J, Yehia J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/368905

JUDGMENT

HIS HONOUR: The plaintiff, the State of New South Wales (hereinafter "the State" or "the plaintiff"), by Summons filed 6 December 2022 seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act"), binding upon the defendant, Matthew Cohen. While the orders in the Summons seek final orders for an Extended Supervision Order (hereinafter "ESO"), with conditions of supervision, the proceedings before the Court, as presently constituted, are proceedings for interim orders, being an Interim Supervision Order (hereinafter "ISO") with conditions, and ancillary orders relating to the appointment of psychiatrists and/or psychologists.
Further, the State seeks an order that access to the 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 were to be made by a non-party, the parties to the proceedings are to be notified in order to allow them an opportunity to be heard in relation to the access.

The Index Offences

On 16 March 2016, the defendant pleaded guilty to the following offences (in these reasons referred to as "the Index Offences") which took place between 10 and 11 August 2014: 1. aggravated sexual intercourse, the aggravation being the infliction of actual bodily harm on the victim, contrary to s 61J(1) of the Crimes Act 1900 (NSW), with a further offence of that kind taken into account on a Form 1; 2. assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act, dealt with pursuant to a s 166 Certificate; and 3. contravene an Apprehended Domestic Violence Order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), also dealt with pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
The victim of the Index Offences was the defendant's former partner and mother of his children. This person was also the victim of earlier domestic violence related charges in 2009, 2010, 2012 and 2013.
The circumstances of the Index Offences involved the defendant attacking the victim whilst she was in the bathroom, forcefully inserting his fingers into her anus, telling her that she was a "fucking slut" and that he would "torture" her, before beating her and inserting his fingers into her vagina. The defendant then dragged the victim by her hair into the bedroom and pinned her down before beating her with his fists. He then picked her up and threw her down repeatedly.
The victim attempted to hit the defendant with a piece of timber, which the defendant then used to hit the victim multiple times. The defendant then dragged the victim back into the bathroom, and during the altercation the victim's faeces was caused to be spread around the room.
As the victim attempted to flee, the defendant told her: "You're dead slut". He then assaulted her in the lounge room in front of two of the children. During the subsequent sustained assault, which covered most of the rooms of the house, the victim became covered in blood and faeces. The victim attempted to escape when the defendant put her in the shower, but the defendant followed her to the backyard and dragged her back inside. He again threatened her with death.
The assault ended when a third person knocked on the door, at which point the defendant attempted to hide. The victim took the opportunity to run to a neighbour who contacted the authorities. The victim required hospitalisation for three days.

Procedural History

The defendant was sentenced for the Index Offences to 8 years' imprisonment, with a non-parole period of 4 years and 3 months. The sentence commenced on 24 February 2015.
The defendant was granted parole on 11 September 2020. The defendant was subsequently charged with a number of further domestic offences, said to have been committed on 24 December 2021. As a result of those charges, parole was revoked on 19 January 2022. The subsequent charges have now been dismissed, one of which (a charge of stalking) was dismissed following a Hearing in the Local Court. The defendant was again paroled on 28 November 2022.
The parole period expires on 23 February 2023. As already stated, the application for an ESO and ISO was filed by way of Summons on 6 December 2022. As a consequence, the procedural pre-conditions to the making of an ISO or ESO have been satisfied, which is conceded by the defendant.
The issue before the Court is whether the State has satisfied the Court that the defendant poses an unacceptable risk in the absence of an ISO and has proved that proposition to a high degree of probability. If the Court were satisfied of the unacceptable risk at the standard required by the legislature, the defendant takes issue with a number of conditions, which were the subject of submission from both the defendant and the plaintiff.

Plaintiff's Evidence

The plaintiff relies on the two Affidavits sworn by James Palmer of 6 December 2022 and 13 February 2023. The Affidavits exhibit documents which are exhibited as JP-1 and constitute some 78 discrete documents, derived from material produced by Corrective Services NSW, NSW Police and various courts. The key documents are: 1. Bail Report (NSW Criminal History); 2. Conviction, Sentence and Appeals Report; 3. Inmate Profile Document; 4. Risk Assessment Report of Catherine Sapula, dated 30 August 2022; and 5. Risk Management Report, dated 4 October 2022.
Both the plaintiff and the defendant filed written submissions, which assisted the Court greatly in dealing with the matter before it.

Defendant's Evidence

The defendant also filed evidence and relied upon the Affidavit of Jessica Caligiore, sworn 8 February 2023, which exhibited to it a bundle of documents being Exhibit JC-1. Exhibit JC-1 included case notes, directions issued while the defendant has been on parole and evidence regarding Aboriginal culture.

Unacceptable Risk: Principles

The legal test for determining whether the defendant is an unacceptable risk has been rehearsed on a number of occasions. In order to issue an ISO binding on the defendant, the Court is required to be satisfied that the defendant's current custody or supervision will expire before the proceedings are finally determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. [1]
Thus, the focus of the Court in dealing with an application for an ISO is whether the matters alleged justify the making of an ESO, assuming those matters were proved. In dealing with the determination of an application for an ESO, and necessarily an ISO, the Court is required to treat the safety of the community as the paramount consideration. [2]
The provisions of s 9(3) of the Act prescribe several factors that are required considerations, when the Court is dealing with an application for an ESO. Some of those factors are not relevant to an order for an ISO, because they depend upon the circumstances that have not yet occurred.
Pursuant to the terms of s 5B of the Act, in order for the Court to be satisfied that an ISO or ESO should be made, the defendant in any such application must be an offender who is serving or has served a sentence of imprisonment for a serious offence; the defendant is a supervised offender, being a person who, when the application for an ESO is made, is in custody or under supervision for a serious offence or an offence of a sexual nature (relevantly); the application has been made within the last nine months of the defendant's current custody or supervision; addresses each of the matters prescribed by s 9(3) of the Act and includes a report prepared by one of a number of prescribed professionals assessing the likelihood of the defendant committing a serious offence; and, that the Court be satisfied "to a high degree of probability" that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. [3]
While the Court is required to be satisfied, to a high degree of probability, that there exists an unacceptable risk posed by the defendant, if left unsupervised or without the order sought, the Court is not required to determine that the risk of the defendant committing a serious offence is more likely than not. [4] It is agreed that the procedural requirements as to timing and supervision have been satisfied and the Court is satisfied, independently, that the application for an ESO, by the filing of the aforementioned Summons, was made within the nine-month period prior to the expiry of the relevant sentence or supervision of the defendant.
Further, the Court is satisfied that the defendant is a supervised offender within the meaning of s 5I of the Act and the documentation prescribed by s 6(3) of the Act, incorporating the matters referred to in s 9(3) of the Act and a report by a relevantly qualified expert assessing the likelihood of the defendant committing a serious offence, have been provided.
As such, the only issue is whether the defendant poses an unacceptable risk because of the lack of a real possibility of the commission of a further serious offence or because, if committed, such a serious offence would not amount to damage that would render the combination such an unacceptable risk. The onus is on the State to prove an unacceptable risk and, as stated, must satisfy the Court to a high degree of probability.
As has been stated on a number of occasions, the assessment of a defendant as posing an unacceptable risk involves the evaluation of two significant factors, being the likelihood that a serious offence will be committed in the absence of supervision and the harm that would be done were such an offence to be committed. If the evaluation of the combination of those two factors results in the proposition that the defendant poses an unacceptable risk, and the Court is so satisfied to a high degree of probability, then, subject to any discretion under s 9 of the Act, the Court may or would issue an ISO.

Defendant's Submissions

As already stated, the defendant does not contest that the procedural preconditions required by the statute have been satisfied. Rather, the defendant submits that the plaintiff has not disclosed to a high degree of probability that there is an unacceptable risk and the Court should not be satisfied of that precondition. As already stated, if the Court were satisfied, at least for the purposes of the preliminary hearing, the defendant submits that the Court ought not accept all of the conditions proposed by the State.
In relation to the consideration relevant to the making of an ISO and prescribed by s 9(3) of the Act, it is obvious that, at the stage of an ISO and prior to preliminary ancillary orders having been made and fulfilled, the criteria in s 9(3)(c) and (d) are inapplicable as these reports by qualified psychiatrist and/or psychologist and the statistical assessment that is usually undertaken are not available at this early stage.
The Court does have available, as earlier stated, the Risk Assessment Report of Ms Sapula and the Risk Management Report. The Court will, later in these reasons, deal more fully with the Risk Assessment Report, but it is important to deal with the Report bearing in mind the criticisms of it by the defendant or his legal representatives. Essentially, the defendant submits that the Report is "one-sided" and under-reports the following supportive factors:

The defendant has never been convicted of a serious violent offence as defined under the Act;
Ms Sapula relied on a Report of psychologist Ms Durkin which was not prepared for the purpose of the index offences;
The Report only makes fleeting reference to the remorse and insight demonstrated by the defendant;
The Report also fails to refer to the various supporting factors arising from the defendant's participation in EQUIPS, as well as the risk mitigating impact of his connection to Aboriginal culture;
The Report does not refer to the defendant's recent rehabilitation program for his substance abuse issues; and
The Report is critical of the defendant for failing to disclose romantic relationships in circumstances where there was no requirement on the defendant so to do.

The statistical analysis in the Report does not directly assess the likelihood of the commissioning of further offences, with which comment the plaintiff agrees.
In relation to the factors in s 9(3)(e2), the defendant submits that the Risk Management Report indicates that the defendant is able to comply with obligations, when required, and submits that the ESO regime should not be a substitute for parole and ought not be used instead of parole to create stability in the defendant's life. It is appropriate, at this point, for the Court to remark that the ESO regime is not a substitute for parole and should not be sought to be used in that manner.
Nevertheless, in the current circumstances, the defendant was placed on parole. It is unfortunate that the period of parole was cut short by charges that were ultimately dismissed. It is also noteworthy that the defendant has progressed during the course of the parole period and is now under less supervision than was originally proposed by the State in the Schedule of Condition under s 11 of the Act.
While there is some significant dispute about the history of breach of bails, particularly in the latest period of parole, the defendant submits that his engagement and compliance with obligations has been positive and would have been entirely positive, were it not for the allegations of reoffending which were ultimately not proved.
The defendant accepts that he has a criminal history involving domestic violence but submits that the history does not prove the unacceptability of the risk of further serious offending associated with the difficulty. In particular, in that regard, and in relation to the criterion in s 9(3)(h1), the defendant relies upon the sentencing judge's comments that the defendant, at the time of sentence, was remorseful and had insight into his behaviour.

Risk Assessment Report

The Report by Ms Sapula is detailed and lengthy. Ms Sapula, in the Executive Summary, refers to the defendant's response to his most-recent period of supervision as having "attracted some favourable comments in terms of his engagement in offence-targeted intervention tasks and with community-based support services. Nevertheless, [the defendant] re-offended by driving a car after he had used methylamphetamines. During this assessment he disclosed not complying with the alcohol abstinence condition and contacting the victim to arrange access to their three children. While these appear to contravene the parole conditions, they did not attract any formal sanctions." The Report also expressly refers to the completion by the defendant of the EQUIPS Program, which may be inconsistent with the submission of the defendant in relation to the considerations utilised by Ms Sapula.
Essentially the Risk Assessment Report assesses the defendant's overall risk for "sexual reoffending" within the above-average category, while his risk of violent reoffending, including intimate partner violence, remained in the high range.
The Executive Summary also dealt with the mitigation of future risk by the use of an ESO, which should include ongoing community supervision and support and appropriate psychological intervention.
It is no criticism of the author of the Report that the Report, necessarily, does not assist the Court to the same extent as would the expert reports that, were the Court otherwise minded to impose an ISO on the defendant, would deal directly and more relevantly with the issues with which the Court is required to deal. Nevertheless, even though the Court might be better assisted by expert reports, the Court should not impose an ISO merely for the purpose of obtaining expert reports, which are then able to inform the Court better in relation to any ESO that might issue.
The Risk Assessment Report deals with the Index Offences, which have been described above. There can be little doubt that the Index Offences on the victim were particularly troubling and caused significant harm. The seriousness of that harm is a factor to be taken into account in the matrix assessment associated with determining unacceptable risk.
The Risk Assessment Report also deals in significant detail with prior violent offending, which, in relation to the defendant, I find less relevant in the circumstances of the application now before the Court. It also deals with non-sexual and non-violent offending that would be categorised as other than serious.
The Risk Assessment Report notes that the defendant had previously attributed his offending to anger management, antisocial peers and misuse or abuse of illegal drugs and alcohol. It is troubling that drugs and alcohol, which is recognised by the defendant as a contributing factor to his offending, seems to be a continuing issue.
There can be little doubt that the defendant suffered a deprived childhood, which, if the Court were sentencing the defendant, would be a significant factor in the determination of an appropriate sentence. The task now being undertaken by the Court is not a sentencing function. It is an assessment of risk.
In those circumstances, some factors that may ameliorate a sentence to be imposed upon an offender may not reduce the assessment of risk and its unacceptability. Indeed, on one view, some such factors might increase the unacceptability of the risk because they may disclose a greater likelihood of the commission of further offences as a result of the normalisation of violence and anti-social attitudes, each of which may be the result of social exclusion and exposure to violence in the person's youth.
It must be said that defendant has shown significant insight into his offending. That is a factor that weighs significantly in the determination of unacceptability of risk. Nevertheless, the Court is required to assume that the facts alleged by the State will be proved at the final hearing.
Much of the criticism of the Risk Assessment Report is relevant more to the issuing of an ESO, than the issuing of an ISO, because, at this stage, the Court is required to assume that the allegations made by the State, and which have some support in the material before the Court, will be proved. At an ESO hearing, it may well be that the criticisms undermine the proof that the Court, at this stage, must assume will be satisfied.
The reliance by the defendant on compliance that is relatively positive during the course of parole is a criterion that I take into account to the benefit of the defendant. It is, however, a two-edged sword. The relatively good behaviour and compliance occurred during the course of supervision of the kind that is sought by the imposition of an ISO or ESO.
The Risk Assessment Report deals at some length with programs that ought to be included and/or have been included in the treatment of the defendant. It is unnecessary, for the purposes of these reasons, to deal with those aspects.
The Risk Assessment Report describes the process of risk assessment as "multi-faceted", utilising actuarial approaches and an assessment of relative presence of individual dynamic factors. To any Judge of the Court who has dealt with these matters, such a description is trite. The foregoing is not a criticism of its inclusion in the Report. Rather, it recognises the shortcomings of risk assessment generally. Actuarial studies deal, essentially, with the rate of recidivism and further serious offending. Dynamic risk factors, particularly when assessed at this stage of proceedings, may depend, again, on actuarial measures and a structured professional judgement, but the professional judgement is hampered by the preliminary nature of the assessment and the timing at which it occurs. This is one of the reasons that, were an ISO to issue, expert psychiatric and psychological reports are required.
The methodology used in the risk assessment in relation to sexual offending was the actuarial risk assessment tool, STATIC-99R. This is a tool well-known to the Court. The assessment, utilising this tool, rates risk categories between Very Low and Well Above Average. The defendant's score was Above Average, being in the second-highest category of risk. The foregoing is said bearing in mind the shortcomings of static testing.
The dynamic assessment tool utilised by Ms Sapula was the assessment tool STABLE-2007. It refers to a number of dynamic factors which have, historically and consistently, been found to point to the risk of sexual reoffending. Those factors, particularly relevant in the current circumstances, are: intimacy deficits; social influences; distorted attitude; general self-regulation; and sexual self-regulation. There are 13 items related to psychological, interpersonal, and sexual functioning which together create a total score. The defendant was assessed, utilising the foregoing tool, and received a score of 12 which suggested "a high density of criminogenic needs" relative to other male sexual offenders. [5]
Ultimately, as earlier summarised, the combined effect of the two assessments led Ms Sapula, by combining static and dynamic risk factors, to assess the defendant's composite risk/needs level as "Above Average Risk". [6]
While the criticisms of the Report by the defendant are noted, there is sufficient material in the Report to support the finding that the defendant poses a real and significant risk of reoffending either with a serious sexual offence or a serious violent offence, each of which, on the material before the Court, would be domestic violence related.
In those circumstances, the Court is satisfied to a high degree of probability that, on assessing the significant risk of reoffending (measured with the damage that would be occasioned were the risk to manifest) the defendant poses an unacceptable risk if left unsupervised in the community, at least as presently assessed. The foregoing is a satisfaction based on the proposition that the risk assessment upon which the plaintiff relies in these proceedings is a risk of future offending that, at the final hearing, will be proved.
In those circumstances, the Court will impose an ISO on the defendant. For the reasons already provided, it is essential that ancillary orders be made for the reports of experts and those orders will also issue.

Conditions

In the exchange between the State and the defendant, many of the Conditions that were initially proposed have been withdrawn or significantly amended, and there is significant agreement on the Conditions to be imposed. I will deal briefly with the Schedule of Conditions.
The originally proposed Condition 4 is to be deleted by agreement. The remainder of the comments are related to the Conditions as originally proposed in the original Summons (or attached thereto). In the ultimate order that issues the numbers will follow seriatim and will differ from that which is now the subject of comment.
In relation to original Condition 5, which deals with electronic monitoring, the situation is that, at present, the defendant is on Stage 2 of electronic monitoring. These Stages are the subject of description in the Risk Management Report at Volume 2 of the Court Book, Tab 5, p 65.
In the view of the Court, it is inappropriate and counter-productive for the defendant to be monitored by electronic monitoring at a level more strict than is currently the situation. The State agrees with that proposition and I am satisfied that the current situation should be expressed in the Condition. As a consequence, the original Condition 5 will be varied so that it refers to the fact that the defendant will, on commencement of electronic monitoring, be monitored at Stage 2 and its basic requirements. It would be hoped that on review, at some stage, the level may be lowered further, although, in the meantime, the final hearing may have occurred and an ESO may not issue.
Condition 6 is amended to refer to the Stage 2 monitoring, which reference has just been made. In that regard, Condition 7, as initially proposed, is to be altered so that it requires only that the defendant inform the DSO about a change as soon as the defendant is aware of the change or 24 hours in advance, whichever is the later. The DSO may approve a shorter period or different method.
Obviously, if the DSO were to be notified of such a change and disapprove the change the change could not be affected. This is a result of a combination of the notification and the capacity of the DSO to provide a reasonable direction in relation to such a change.
The deletion of the initially sought Condition 11 is accepted by both parties. The more difficult drafting exercise is that which ought to be made a Condition arising from the application initially made for Condition 31. There are a number of difficulties with the Condition as originally framed.
First, the determination of "friendship" is, to say the least, difficult. It could range from the perceived friendliness with a shop attendant in a shop that is regularly attended or waiting staff in a café or restaurant or work colleagues. Given that the defendant would be guilty of a criminal offence for breaching Conditions that are imposed, the terms of Condition 31, are, as originally sought, inappropriate. I have re-drafted the Condition so that it applies a requirement on the defendant to notify his DSO 24 hours before the defendant commences a sexual or romantic relationship.
I have also amended initially proposed Condition 33 such that it gives the defendant an opportunity to disclose his criminal history himself, if he is informed that the DSO otherwise would disclose it. In relation to Conditions 47 and 48, the defendant argued that the plaintiff's proposal allowed for an unconstrained search power and should be confined to a reasonable belief on the part of the Supervising Officer. The defendant's proposal in relation to the wording of these Conditions has been agreed by the State.

Conclusion

For the foregoing reasons, the Court will issue an ISO and make ancillary orders for expert reports and other such matters and will impose Conditions under s 11 of the Act in accordance with the Schedule to these Orders and in accordance with the foregoing reasons. The Court issues the following Orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act"): 1. Appointing two qualified psychiatrists or psychologists to conduct separate examinations of the defendant and to furnish reports to the Court on the results of such examination by a date to be fixed; and 2. Directing the defendant to attend those examinations. 1. An order pursuant to ss 10A and 10C(1) of the Act that the defendant be subject to an Interim Supervision Order (hereinafter "ISO") commencing 23 February 2023 for a period of 28 days. 2. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the ISO, comply with the Conditions set out in the Schedule to these Orders. 3. Access to the Supreme Court file is restricted in respect of this proceeding so that access will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties hereto have had notice of the non-party's application for access and have been afforded an opportunity to be heard with respect to the application to access. 4. The matter be listed before Yehia J for Directions at 9:15 AM on 9 March 2023, or such other time as fixed by the Court.

Endnotes

Crimes (High Risk Offenders) Act, s 10A.
Ibid, at s 9(2).
Ibid, ss 5B, 5I and 6.
Ibid, s 5D.
Court Book 2; Exhibit JP-1 to the Affidavit of Mr James Palmer, affirmed 6 December 2022, Tab 4, p 48; Risk Assessment Report of Ms Catherine Sapula, dated 30 August 2022, p 23.
Ibid. 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: 22 February 2023

At a glance

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