State of New South Wales v Colb

Supreme Court of NSW|2023-08-15|Before: Weinstein J, Yehia J

JUDGMENT

By Amended Summons, the plaintiff State of New South Wales sought final orders for an Extended Supervision Order (ESO) against the defendant, Grant Colb pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (the HRO Act) for a period of three years, and for an order pursuant to s 11 of the HRO Act that Mr Colb comply with conditions as set out in the Schedule to the Amended Summons.
On 28 April 2023, I conducted a preliminary hearing in this matter pursuant to s 7(3) of the HRO Act and made orders on that day imposing an ISO with conditions: see State of New South Wales v Colb (Preliminary) [2023] NSWSC 471 (the preliminary judgment). On 26 June 2023, Yehia J renewed the ISO for a further 28 days commencing 1 July 2023. Mr Colb has been in custody since 6 July 2023 for allegedly breaching the conditions of the ISO.
On 15 August 2023, there was a final hearing after which I made the final orders sought in the Amended Summons. In the end, the only dispute was as to the drafting of the conditions requiring the defendant to submit and adhere to a schedule of movements about which the parties eventually agreed. I am grateful to both Ms Heath who appeared on behalf of the State, and Mr Bhutani on behalf of Mr Colb for the collaborative manner in which they approached these proceedings.

Background

The background to this application is set out in the preliminary judgment, which I will not repeat. The index offending was a murder committed on 12 May 2005. That offence was committed after Mr Colb was released on a suspended sentence for an offence of inflicting grievous bodily harm on 13 April 2005. On 11 August 2006, Mr Colb was sentenced to a head sentence of 18 years imprisonment, which expired on 19 May 2023. A non-parole period of 14 years was imposed. Between July 2022 and March 2023, there were three revocations of his parole for various breaches of conditions.
After I imposed the ISO, on 16 June 2023, Mr Colb was arrested and charged with two failures to comply with the conditions of his ISO pursuant to section 12 of the HRO Act. He remained in custody until his release on 21 June 2023, when he was sentenced to a Community Corrections Order by the Local Court. On 6 July 2023 Mr Colb was again arrested, this time for three failures to comply with the conditions of his ISO. At the date of the final hearing on 15 August 2023, Mr Colb was bail refused for those matters and remained in custody. They are next listed before the Local Court on 17 August 2023 for mention. I observe that on 15 August 2023, after I made the orders sought by the State, I heard Mr Colb's release application. I granted him bail on the condition that he comply with the conditions of the ESO that I had imposed.

Evidence

Much of the evidence before me was tendered in the preliminary hearing. The most significant new material were the reports of the two court appointed experts and selected notes from the Offender Integrated Management System (OIMS) (to which see below).
Four exhibits were tendered and marked as follows:- 1. A volume containing court documents, a report of Dr Sathish Dayalan, forensic psychiatrist, dated 14 July 2023, two reports of Dr Sally McSwiggan, consultant neuropsychologist, dated 14 July 2023 and 24 July 2023, affidavits of James Palmer affirmed on 2 March 2023, 26 April 2023 and 21 July 2023, an affidavit of Erin Kirkwood affirmed on 9 August 2023, an affidavit of Sarah Salman sworn on 20 April 2023, OIMS notes from 9 and 10 June 2023 and 19 and 20 July 2023 and the parties' submissions; 2. Exhibit JP-1 to Mr Palmer's affidavit of 2 March 2023 (which was before the court at the preliminary hearing); 3. Exhibit JP-2 to Mr Palmer's affidavit of 21 July 2023, containing inter alia, a bail report dated 6 July 2023, material concerning Mr Colb's 2023 criminal convictions and outstanding charges, OIMS notes from 31 May 2023 to 12 July 2023, parole documents and a letter from the National Disability Insurance Agency (NDIA) to Mr Colb dated 16 May 2023; and 4. OIMS notes from 3 and 4 July 2023

Legislative framework

The following sections of the HRO Act have relevance.
Section 3 of the HRO Act sets out its objects:- 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
Section 5A of the HRO Act defines "serious violence offence" which is relevant to this matter:- (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.
Section 5B sets out four pre-requisites for the making of an ESO. I note that the parties do not dispute that the requirements of each of subsections (a)-(c) are met in this case, and I observe that I am independently satisfied. Section 5B provides:- 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) 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.
Mr Colb is an "offender who has served a sentence of imprisonment for a serious offence in custody" (s 5B(a)), as he is over 18 years of age (being 46 years old) satisfying s 4A(a), and he has been sentenced to imprisonment to be served by way of full-time detention following his conviction for murder in 2005, satisfying s 4A(b). Further, Mr Colb is a "supervised offender" within the meaning of s 5I, satisfying s5B(b), as he was an offender when the application for the order was made, and was under supervision by way of an ISO (s 5I(2)(b)), and the application for the order is made in accordance with s 5I satisfying s 5B(c).
Section 5B(d) is the key provision with respect to the making of an ESO. I must be satisfied to a "high degree of probability" that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of such an order. In determining whether the defendant poses an unacceptable risk, the court must have regard to the matters in s 9(3)(a) - (i).
The words "to a high degree of probability" indicate a higher standard of proof than the civil standard of the balance of probabilities but does not rise to the criminal standard of beyond reasonable doubt. In Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal (Mason P, Giles and Hodgson JJA) said:- "the expression 'a high degree of probability' indicates something 'beyond more probable 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…"
Ms Heath submitted that I would be satisfied to a high degree of probability that Mr Colb poses an unacceptable risk of committing another serious offence if not kept under a supervision order having regard to the various matters set out in s 9(3)(a)-(i). Mr Bhutani made no submissions about whether or not s 5B(d) is satisfied. I indicate that I am satisfied that the making of an ESO is necessary, the reasons for which will become apparent after a review of the evidence against the criteria in s 9(3).
Section 9(2) of the HRO Act provides that, in determining whether or not to make an ESO, "the safety of the community must be the paramount consideration." This is consistent with the primary object of the HRO Act as set out in s 3(1). I am satisfied that the safety of the community will be best served if I make the ESO.
Section 9(3) sets out the matters to which the Court must have regard in its determination as to whether or not an ESO should be imposed:- (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.
Section 10 provides for the term of an ESO:- 10 Term of extended supervision order (1) An extended supervision order commences when it is made, or when the offender's current custody or supervision expires, whichever is the later. (1AA) However the Supreme Court may, if an extended supervision order is made in proceedings on an application for a continuing detention order, defer the operation of an extended supervision order for a period of up to 7 days (the deferral period) if - (a) the Court considers that it is necessary to detain the offender for the deferral period to enable arrangements to be made for supervision of the offender in the community, and (b) it does not appear to the Court that an interim detention order can be made for the interim detention of the offender. (1AB) On the deferral of the operation of an extended supervision order, the Supreme Court may order that the offender concerned be detained for a specified period (not exceeding the deferral period) after the offender's current custody expires. (1AC) As soon as practicable after making an order under subsection (1AB) the Supreme Court must issue a warrant for the committal of the offender for the specified period after the offender's current custody expires. (1AD) A warrant under subsection (1AC) is sufficient authority for the offender to be kept in custody in accordance with the terms of the warrant. (1A) An extended supervision order expires at the end of - (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. (2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law. (3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender.
As to conditions that may be imposed when making an ESO, s 11 provides:- 11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender - (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.
In State of NSW v Wilkinson (preliminary) [2020] NSWSC 1813 at [43] - [44], Hoeben CJ at CL said the following about the imposition of conditions: "[43] Section 11 of the Act allows the Court to impose such conditions under a supervision order as the Court considers appropriate. This power is constrained by the scope of the Act: Winters v Attorney General of NSW [2008] NSWCA 33 at [19]. Assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1) is to provide for the extended supervision of such offenders "so as to ensure the safety and protection of the community". Subsection (2) provides that another object of the Act "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation". [44] Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]. (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]. (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]. (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. (vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855. (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]. (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131]."

Section 9(3) factors

Much of the material relevant to the s 9(3) factors is set out in the preliminary judgment at paras [30] - [53], which I do not repeat. Of particular significance are the Risk Assessment Report prepared by Ms Patrycja Luketic, senior psychologist at the Serious Offenders Assessment Unit dated 4 October 2022 which details Mr Colb's dynamic risk factors, and the Risk Management Report prepared by Ashley Newby, Community Corrections Officer, Extended Supervision Team dated 22 November 2022 which recommended risk management measures. I have taken that material into account in the present application. I turn to the fresh material that has been provided since the preliminary hearing.

Reports received by appointed persons: ss 9(3)(b) and (d)

Report of Dr Sathish Dayalan

Dr Satish Dayalan, forensic psychiatrist, reported on 14 July 2023. He conducted an in-person psychiatric assessment of Mr Colb on 30 June 2023.
Mr Colb reported a history of childhood trauma which was largely consistent with his background set out in the material tendered at the preliminary hearing. Mr Colb reported that his mother once tried to drown him in a bath. When he was four years old, his father made him smoke a cigarette and there was an occasion where he was left on his own on a street next to a railway at night. He said that he had a close relationship with his grandmother but was subject to significant abuse by his grandfather.
Mr Colb told Dr Dayalan that he experiences nightmares and flashbacks that cause a "shut down" response. He said that this occurs once a month and is triggered by reminders such as smells and certain television programs.
Dr Dayalan noted that Mr Colb was taking Doxepin at the time of the assessment, as well as methadone. He denied the use of illicit drugs other than cannabis which he was using every 2-3 days. He spoke positively about his psychologist and expressed an eagerness to attend residential rehabilitation for an 18-month program. Dr Dayalan observed that Mr Colb had ongoing persecutory beliefs such as a concern about being assaulted by former inmates. Mr Colb's mood was euthymic and there was no evidence of psychotic features.
When discussing his violent offending, Mr Colb reported that some of his family were part of an outlawed motorcycle gang. Some of his past offending involved attempts to rob people to meet his basic needs when he was homeless. As to the index offending, Mr Colb told Dr Dayalan that he had used crystal methamphetamine and cannabis at the time of the offence and lost control of his actions. He said that he had fallen asleep after the victim gave him food and he woke up to the victim performing oral sex on him. He believes that the victim breached his trust which contributed to his reaction to kill the victim. He believed that his background of past abuse contributed to his aggressive reaction.
Dr Dayalan asked the defendant about the breaches of his ISO. The defendant explained that he had a strained relationship with his former DSO. He also complained about his initial residential placement as he believed that it had exposed him to drug users. He admitted to using crystal methamphetamine and cannabis in the community. He denied making weapons. He said that he had difficulty complying with the schedule of movements. Mr Colb told Dr Dayalan that he would like to seek employment, avoid antisocial peers and illicit substances, commence a relationship and start a family, all of which he believed would decrease his risk of re-offending. He would also like to join a men's shed and participate in outdoor recreational activities. Dr Dayalan noted that Mr Colb had some unrealistic ideas, such as building a spacecraft.
In Dr Dayalan's opinion, Mr Colb meets the criteria for diagnoses of complex post-traumatic stress disorder, antisocial personality disorder, borderline personality disorder and substance use disorder - cannabis, opiates and stimulants. Dr Dayalan considered that the documents with which he was provided did not indicate that Mr Colb had an acquired brain injury. He was of the view that the documents suggested improvement in Mr Colb's presentation over the last few years. Whilst he was unable to confirm an acquired brain injury, Dr Dayalan recommended that Mr Colb undergo neuropsychometric assessment. In his opinion, it very likely that Mr Colb has executive functioning deficits which impact his ability to plan and organise.
Dr Dayalan observed that there are limitations to the prediction of risk, and that risk assessment instruments are best utilised as a guide to forming a professional opinion on the risk posed by an individual and for formulating a management plan for risks that are identified. Dr Dayalan used the Historical Clinical and Risk Management - 20 Version 3 tool. He identified a high loading of historical risk factors including problems with violence, problems with other anti-social behaviour, problems with relationships, employment problems, substance abuse disorder, personality disorders and adverse childhood experiences. He was of the opinion that Mr Colb had limited insight into his mental health, violence risk and substance abuse, all of which will pose challenges to professional services and planning. He continued to pose a risk of emotional and behavioural dysregulation in the context of stress.
Dr Dayalan used the Violence Risk Appraisal Guide - Revised Version (VRAG-R), which is an actuarial tool placing individuals in risk categories. Mr Colb placed in the high risk category for future violent behaviour.
In Dr Dayalan's opinion, Mr Colb is at risk of committing a further serious offence, and in particular a serious violent offence, particularly in the context of using substances, interpersonal conflict, unstable living circumstances, deterioration in mental health and disengagement from treatment. Therapeutic interventions, psychosocial support and supervision in the community, in Dr Dayalan's view, will assist in the management of dynamic risk factors.
Dr Dayalan believes that an ESO of three years duration is appropriate to address some of Mr Colb's dynamic risk factors and which would allow for a graded reduction in the conditions of the ESO. In his view, it is likely that Mr Colb will have difficulties complying with a schedule of movements.

Reports of Dr Sally McSwiggan

Dr McSwiggan, consultant neuropsychologist, reported on 14 July 2023 and 24 July 2023. She assessed Mr Colb in person for 80 minutes on 26 June 2023.
At the time of the assessment, Mr Colb was living in Community Offender Support Program (COSP) accommodation and was receiving the disability support pension. He was aware of the application for an ESO. He told Dr McSwiggan that he was recently in custody for breaches of the ISO because he had deviated from his schedule, including on one occasion which involved stopping for food. He told Dr McSwiggan that he hoped to leave his COSP accommodation and enter a residential drug rehabilitation programme. He denied current illicit substance abuse, but said that he "needed to address it" as he had never received drug rehabilitation treatment.
Mr Colb reported a history, including his childhood experience and his psychiatric and medical history, all of which was consistent with that reported to Dr Dayalan and the material tendered at the preliminary hearing.
Dr McSwiggan noted that Mr Colb appeared to make an effort to cooperate during the assessment. His speech rate was normal and he followed the rules of conversation. He was emotionally regulated with full affect. Mr Colb did not demonstrate illogical (psychotic) thought processes or symptoms of a major psychotic illness or mood disorder, although he came across as mildly juvenile and asked odd questions at times, which Dr McSwiggan attributed to his institutionalisation. Dr McSwiggan observed that this was inconsistent with his intellect. She believed that Mr Colb had some insight into his current circumstances but that he lacked goal direction.
Dr McSwiggan administered several neuropsychological tests. Mr Colb appeared to understand their purpose and Dr McSwiggan believed that he was engaged and that he participated with effort.
In Dr McSwiggan's opinion, the test results indicate that Mr Colb operates in the normal range of cognitive functioning. Both premorbid and current cognitive functioning were estimated to be in the low average range. There was no indication of lasting brain injury or other neuropsychological disorder. His spelling was to a high school year 8 level and his reading was consistent with a year 9 level.
In Dr McSwiggan's view, Mr Colb meets the criteria for a diagnosis of severe substance use disorder which commenced in early adolescence and has been in remission in a controlled environment. Dr McSwiggan observed that Mr Colb's background suggests that he has developed psychological vulnerabilities and maladaptive personality traits. Declines in his mental health is likely attributable to periods of substance abuse.
In Dr McSwiggan's opinion, Mr Colb requires stable accommodation, ongoing case management and psychological intervention. In her view, Mr Colb's most prominent risk factor is his substance use disorder and the associated risks that come from both obtaining and using illicit substances. She supported a residential treatment programme as a means of managing that risk. Dr McSwiggan believed that Mr Colb's risk of committing a serious violent offence could not be reliably predicted. However, using the VRAG-R tool, she notes that Mr Colb's score - risk level 8 out of 9 - put him in a range which where recidivism is 2.3 times greater than those scoring in the mid-range.
With respect to the proposal for scheduling conditions, Dr McSwiggan noted that they are onerous and restrictive requirements with which Mr Colb would have difficulty complying.

OIMS notes: ss 9(3)(e2) and (i)

The OIMS notes that have been exhibited and postdate the preliminary hearing demonstrate that Mr Colb has struggled to comply with the scheduling conditions of his ISO and that he was hostile toward his first DSO. A new DSO has been assigned to him. The notes indicate that Mr Colb was feeling stressed and overwhelmed following release from custody, which I attribute to his institutionalisation. Mr Colb was initially given permission to call the ESO team to provide a verbal list of movements for approval each day. After about two weeks, this practice ceased. On 5 June 2023, Mr Colb was given two warnings for breaching the scheduling condition on 1 and 2 June 2023. On 16 June 2023, he was arrested for two similar breaches.
On 6 July 2023, following a search of his room at Nunyara COSP where sharpened objects were allegedly found, he was arrested for breach of the conditions of his ISO. He was also breached for deviating from his schedule of movements and for discarding his mobile phone. The notes also disclose concerns that Mr Colb was not complying with the COSP program. On 10 July 2023 (whilst in custody), Mr Colb was evicted from Nunyara COSP.

Options available to reduce the risk of reoffending: s 9(3)(e1)

Both Dr Dayalan and Dr McSwiggan recommended a period of residential treatment to address the defendant's risk of illicit substance abuse. I observe that Mr Colb has a pending NDIA application. On 2 August 2023, N Adams J made an order permitting the State to share the reports of Dr Dayalan and Dr McSwiggan with the NDIA. They were provided to that organisation on 12 August 2023. I was told from the bar table that emergency short term housing has been made available to Mr Colb. A document confirming that position was tendered on the release application.

Likelihood the offender will comply with the obligations of an ESO / past compliance with parole: s 9(3)(e2)

The defendant has had great difficulties complying with a schedule of movements. He has admitted to some drug use. I note that Mr Colb's arrest in July 2023 occurred some two weeks after being sentenced to a Community Corrections Order for deviating from his schedule of movements on 7 and 13 June 2023.
The plaintiff submitted, correctly in my opinion, that Mr Colb's history of non-compliance raises concerns about the likelihood of his compliance with an ESO. Ms Heath submitted that Mr Colb requires stringent conditions to address his risks, and she noted that both Dr Dayalan and Ms Luketic that Mr Colb requires close monitoring and support on supervision. I agree.
I have taken into account all matters in s 9(3)(a) -(i).

Conditions

In advance of the hearing, the parties were able to agree on all conditions but for the conditions relating to scheduling (conditions 6, 7 and 8).
Mr Bhutani's first position was that these conditions should be deleted in their entirety because scheduling did little to ameliorate the defendant's extant risk factors. He submitted that the proposed conditions constrain the defendant and set him up to breach them for benign behaviour. He relied on the opinion expressed by Dr McSwiggan that the scheduling requirements were too onerous and were unrelated to Mr Colb's risk for serious reactive violence.
I rejected this submission on the basis that Mr Colb's substance use issues could not be appropriately monitored prospectively if a DSO did not know where Mr Colb intended to be on a daily basis. I also expressed a concern that onerous scheduling conditions might inevitably be breached because of Mr Colb's inability to easily re-integrate into the community considering his institutionalisation. It was my view that a balance ought to be struck.
Mr Bhutani's second position was that a scheduling plan ought to be communicated to a DSO on a daily basis (i.e. the day before) rather than on a weekly basis in advance, as proposed by the State. Ms Heath agreed that this would be an appropriate modification. In my opinion, in light of Mr Colb's difficulties in compliance and the comments of Dr Dayalan about Mr Colb's executive functioning deficits, this was a fitting compromise position.
There was much discussion about the appropriate wording which would reflect my concerns and the agreement between Ms Heath and Mr Bhutani. To their credit, they engaged in a drafting exercise which was ultimately to our mutual satisfaction.

Conclusion

Taking all matters into account, noting that the safety of the community is the paramount consideration, I was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO for a term of 3 years.

Orders

I made the following orders on 15 August 2023: 1. I make an order: 1. Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of 3 years; and 2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out as an annexure to my reasons for judgment and are found in MFI 1 save for conditions 6, 7 and 8 which will be amended as follows: "6. If directed by his DSO, the defendant is to provide a plan of his anticipated daily movements for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel. Note - the DSO is to assist the defendant to the extent possible in condition 6. 7. Approval of the plan in condition 6 must not be withheld unless: a) a DSO considers his attendance at a location, or the engagement in the activity, will give rise to a risk of committing a serious offence or a risk of breach of another condition of this order; or b) a DSO considers that there is insufficient time to conduct a risk assessment of the proposed location or activity. 8. The defendant must not deviate from his approved plan except in an emergency or unless he has approval to deviate from the plan." 1. I order that the ISO made on 28 April 2023 is revoked.

Annexure Conditions of the ESO Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW "Commissioner" means Commissioner for Corrective Services "Defendant" means Grant COLB, also known as Haynes COLB, Grant HAYNES and Frank KUNDE, the defendant in these proceedings and the subject of the order. "Electronic identity" means each of the following: (a) an email address (b) a user name or other identity allowing access to an instant messaging service (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes

any written or printed material;
any picture, painting or drawing;
any carving, sculpture, statue or figure;
any photograph, film, video recording or other object or thing from which an image may be reproduced;
any computer data or the computer record or system containing the data; and
any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes:
a garment search, being 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; and
a pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

Part A: Reporting and Monitoring Obligations Monitoring and Reporting

The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.
Deleted. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements
If directed by his DSO, the defendant is to provide a plan of his anticipated daily movements for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel. Note - the DSO is to assist the defendant to the extent possible in condition 6.
Approval of the plan in condition 6 must not be withheld unless: a) a DSO considers his attendance at a location, or the engagement in the activity, will give rise to a risk of committing a serious offence or a risk of breach of another condition of this order; or b) a DSO considers that there is insufficient time to conduct a risk assessment of the proposed location or activity.
The defendant must not deviate from his approved plan except in an emergency or unless he has approval to deviate from the plan.
Deleted. Part B: Accommodation
The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.
Deleted.
The defendant must allow a DSO to visit him at his approved address at any time and to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. *In the context of shared accommodation, 'approved address' is the defendant's personal room in the supported accommodation. Part C: Place and travel restrictions
The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
The defendant must not frequent or visit any place or district specified by a DSO. Part D: Employment, finance and education
The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. Part E: Drugs and alcohol
The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained.
The defendant must not possess or consume alcohol without the prior approval of a DSO.
The defendant must submit to drug and alcohol testing.
The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO. Part F: Non-association Associations with Others (not children)
The defendant must not associate with any person or persons specified by a DSO.
Without limiting condition 28, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO.
The defendant must not engage the services of sex workers, without the prior approval of a DSO.
The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address the safety of the community. The defendant should first be provided with an opportunity to make the disclosure himself.
The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation Part H: Weapons
The defendant must not possess or use any of the following: a. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, b. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,
Without limiting or altering condition 33, the defendant must not possess or use any of the following, without a DSO's prior approval: a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened, other than kitchen knives for use at the defendant's residence; b. any other implement made or adapted for use for causing injury to a person; or c. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. Part I: Access to the internet and other electronic communication
The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).
The defendant must not use any alias, electronic identity, log-in name, name other than Grant Colb or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.
The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and, if so requested by the DSO, the device has been seen and approved for use by a DSO.
The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.
The defendant must not use any coded or encrypted messaging application or service.
The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.
The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.
The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. In the case of any automatic deletion of any of these items, the defendant must notify a DSO within 48 hours of noticing an automatic deletion
The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. Part J: Search and seizure
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; or 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 offence; then the DSO may direct, and the defendant must submit to: i) a search and inspection of any part of, or anything in the defendant's approved address; ii) a search and inspection of any part of, or anything in, any vehicle owned, hired by, or under the control of the defendant or in which the defendant is travelling; iii) 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; iv) a search and examination of his person, and/or v) a search of any computer, electronic and communication device under his control or in his possession.
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 this Order. Part K: Access to pornographic, violent and classified material
The defendant must notify a DSO as soon as practicable if he has purchased, possessed or possesses, accessed, obtained, viewed, participated in or listened to material classified or material that could be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material as directed by a DSO with respect to concerns related to the risk of committing a serious offence.
The defendant must comply with any reasonable directions given by a DSO regarding the purchase of, possession, access, obtaining, viewing, participation in or listening to material classified or material that could be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material captured by condition 48 above. Part L: Personal details and appearance
The defendant must not change his name from Grant Colb or use any other name without notifying a DSO.
The defendant must not significantly change his appearance without the approval of a DSO.
The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. Part M: Medical intervention and treatment
The defendant 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.
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them: a. with each other; and b. with a DSO, where that information (in the opinion of the defendant's treatment, service and healthcare providers) is relevant to the management of the defendant's risk factors.
The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO and CSNSW.
The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him where that information is relevant to the management of the defendant's risk factors.

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: 18 August 2023

At a glance

Court

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Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (9)

Cited By (1)