State of New South Wales v Cole - [2024] NSWSC 1640 - NSWSC 2024 case summary — Zoe

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State of New South Wales v Cole

[2024] NSWSC 1640

Supreme Court of NSW|2024-10-22|Before: Yehia J, Rothman J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-10-22

Before

Yehia J, Rothman J

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

Introduction

By summons filed on 23 April 2024, the State of New South Wales ("the plaintiff") seeks that Andrew Cole, formerly known as Robert Cole, ("the defendant") be subject to an Extended Supervision Order ("ESO") for a period of three years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHRO Act").
Unusually, the defendant is also a forensic patient under s 72(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("MHCIFP Act"), by virtue of a finding of not guilty by reason of mental illness (now defined as act proven but not criminally responsible pursuant to s 30 of the MHCIFP Act) in relation to three offences, namely robbery with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW), common assault contrary to s 61 of the Crimes Act and steal in dwelling house contrary to s 148 of the Crimes Act. None of these offences are the index offence.
On 13 August 2024, Rothman J made an order pursuant to ss 10A and 10C(1) of the CHRO Act that the defendant be subject to an Interim Supervision Order ("ISO"): State of New South Wales v Andrew Cole [2024] NSWSC 996 ("the preliminary judgment"). Pursuant to s 11 of the CHRO Act the defendant was directed to comply with the conditions set out in the Schedule to the Orders for the period of the ISO. The chronology of the defendant's detention in the Forensic Hospital is summarised in the preliminary judgment at [48]-[67].
For the purpose of this final hearing, the critical issues for determination are: 1. First, whether the defendant poses an unacceptable risk. 2. Second, if it is established the defendant poses an unacceptable risk, whether the Court should exercise its residual discretion to not impose an ESO (because the risk the defendant poses can be addressed through the mental health regime). 3. Third, if an ESO is imposed, the appropriate conditions to attach to such an order.
It must be observed at the outset, that this is an unusual case in that it appears to be the first instance where an ESO is sought in respect of a person who is a forensic patient. The primary issue is whether, in the event that the Court is satisfied that the defendant poses an unacceptable risk of committing another serious offence, the Court would nonetheless exercise its residual discretion not to impose an ESO, because the defendant can be appropriately manage under the Mental Health Review Tribunal (Forensic Division) ("the Tribunal") regime.

[5]

The second sex offence and escape lawful custody

On 5 and 6 December 1988, the defendant committed "the second sex offence" and a robbery. He was on bail and awaiting trial for the first sex offence at the time of the offending. At around 9:00 pm the victim, CF, was driving her car on a public street and the defendant forced his way into her car. He produced a knife and caused CF to drive throughout the night and into the early hours of the morning, until around 6:00 am. He caused CF to park the car, and had sexual intercourse with her against her will, and threatened her with a knife. He caused her to drive around the city again and forced her to have sexual intercourse several more times. He then forced CF to drive back into the city and to withdraw $1,500 in cash from a bank.
On 10 December 1988, the defendant was charged with several offences including threatening to inflict actual bodily harm upon CF by means of an offensive weapon, being a knife, with intent to have sexual intercourse with her; four counts of sexual intercourse without consent; and assaulting and robbing CF. The offences in relation to CF constitute a "serious sex offence" pursuant to s5(1)(c1) of the CHRO Act because they were committed in circumstances that would, today, be an offence against s 61J(1) of the Crimes Act, namely aggravated sexual intercourse without consent, the circumstance of aggravation being that at the time of the offence the defendant threatened to inflict actual bodily harm on CF by means of an offensive weapon. On 10 December 1998, he was taken into custody.
On 13 August 1989 the defendant was taken to Westmead Hospital to receive treatment. As he was leaving the hospital, the defendant pushed himself free from his escorting officers and escaped their custody. He was apprehended shortly after, approximately 60 meters from the officers. This conduct gave rise to an offence of escape lawful custody.
The defendant was found guilty of the first and second sex offences on 3 May 1990. On 16 July 1990, he was sentenced for the first and second sex offences, and the escape lawful custody to a term of imprisonment of 10 years and 6 months, with a minimum term of 8 years and 6 months imprisonment. On appeal, his minimum term was reduced to 6 years imprisonment and his total sentence remained at 10 years and 6 months imprisonment. The defendant was released to parole on 5 December 1994.

[7]

The Mental Health Offending

The "mental health offending" refers to several offences the defendant committed on 23 January 2003 and 27 February 2003, namely robbery with an offensive weapon contrary to s 97(1) of the Crimes Act, common assault contrary to s 61 of the Crimes Act, and steal in dwelling house contrary to s 148 of the Crimes Act.
On 23 January 2003, the defendant entered a pharmacy and requested Rohypnol and money. The victim reported they observed the defendant armed with a revolver inside a bag. The victim advised that the pharmacy did not have Rohypnol but emptied the contents of the till, amounting to $300, and gave it to the defendant. This conduct constituted an offence of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act.
On 27 February 2003, a Victim Impact Statement records that the defendant gained entry into an apartment by identifying himself as a police officer. The victim called police and locked the front door so the defendant could not leave. He alleges that the defendant stole money which the victim then took back. The defendant asked to be let out of the apartment and the victim refused. The victim alleged that the defendant put his hand on an object in his pocket and told the victim "I have a Rothco"; "Don't try anything or I will do you over"; and "I will make a mess of you". The victim opened the door at the same time police arrived. This conduct constitutes an offence of common assault contrary to s 61 of the Crimes Act and steal property in dwelling house contrary to s 148 of the Crimes Act.
On 27 February 2003, the defendant was arrested for the mental health offending and on 20 March 2003 his parole was revoked. On 10 November 2023 the defendant was found not guilty of the mental health offences on grounds of mental illness and was detained pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990 (NSW). The defendant was transferred to Long Bay Hospital as a forensic patient on 8 May 2004.

[9]

The second serious sex offence - The Index Offence

On 30 July 2008, whilst on conditional release as a forensic patient, the defendant committed a "serious sex offence" against AC, whose home he entered. The defendant did not know AC. AC's children, aged 7 and 10 years old, were present at the time.
At about 2:30 am, Mr Cole entered AC's home by force and found her children's bedroom. Mr Cole asked AC's daughter to show him where her parents were, and she obliged. AC was woken and heard Mr Cole say, "just keep quiet and you won't get hurt." Mr Cole was standing next to AC's daughter and holding the family's pet dog. Mr Cole told the daughter: "get on the bed face down. Don't look at me." Mr Cole demanded money and AC gave him $30 from her purse. Mr Cole then tied AC up, covered her mouth with a gag and blindfolded her. Mr Cole threatened AC and said, "Don't be a hero, you've got a young family, you don't want them to get hurt."
AC somehow freed her arms and attempted to call emergency using her mobile phone. Mr Cole saw this and threatened AC. Mr Cole re-tied AC's hands even tighter causing pain and soreness to her wrists. At one point, the defendant agreed to untie her wrists. As they were so tight, Mr Cole could not untie them and used scissors. He kept AC blindfolded. At another point the defendant sprayed what smelled like bleach around AC's home because he did not want his DNA detected.
AC begged Mr Cole to leave and told him she would not call the police. Mr Cole told AC she would have to prove it to him by performing fellatio on him and if AC did not give him a "blow job" he would "do [her] children." AC, fearing for her children's safety, performed oral sex on Mr Cole, and he ejaculated in her mouth. AC was still blindfolded during this sexual assault. The defendant required that the victim remain with him for several hours.
Around 6:00 am, AC asked Mr Cole to leave. It was agreed AC would drive him to a destination. AC refused to leave without her children. AC drove Mr Cole to an address at Hunters Hill. AC then immediately drove to Police and reported the matter. On 31 July 2008, Mr Cole was arrested. He participated in an interview with police in which he made admissions. Mr Cole told the police that he was sorry for what he had done. There were indications that he had also expressed remorse to AC that morning. The defendant was arrested and remanded in custody.
The defendant pleaded guilty to, and was convicted of, aggravated sexual assault inflicting actual bodily harm under s 61J of the Crimes Act, and take/detain person with intent to obtain an advantage, an offence contrary to s 86(1) of the Crimes Act. On 31 July 2008 the defendant was arrested and remanded in custody.
In a report dated 10 November 2008, Dr Bruce Westmore noted that the defendant redeveloped symptoms of paranoid psychosis at the time of the offences and that, aside from his breaking into AC's house that night, his actions were not the direct result of his mental illness. Dr Richard Furst, in his report dated 5 February 2009, diagnosed the defendant with drug induced psychosis, cocaine, amphetamine and opioid dependence and antisocial personality traits. Dr Furst was of the opinion that a mental illness defence was available with regards to a charge of break and enter (which was later withdrawn) but not the sexual assault or deprivation of liberty charges.
On 21 August 2009, the defendant was sentenced for the index offence. Berman DCJ imposed a sentence of imprisonment of 5 years, for the take/detain for an advantage offence commencing on 31 July 2008; and a sentence of 14 years imprisonment for the aggravated sexual assault commencing on 31 July 2010, with a non-parole period of 10 years. The defendant was eligible for release to parole on 30 July 2020 and his sentence was to expire on 30 July 2024.
When sentencing the defendant, Berman DCJ noted that the facts could accurately be described as "chilling" and that it was "difficult to imagine a more serious offence." He continued that "this gross violation of the complainant occurred in her home; a place where she was entitled to feel safe… there were children present and indeed [Mr Cole] took advantage of that by threatening them with sexual assault in order to obtain the complainant's cooperation." Judge Berman found that the defendant's mental illness may have accounted for his entry to the victim's home but had nothing to do with the sexual offending.
The defendant's serious sex offending was not causally connected to his mental health issues. Although the dynamic factors that underpinned his risk of committing another serious sex offence may be interrelated with a decline in mental health, it is not causally connected to it.
On 20 March 2020, the Tribunal issued an order for the defendant to be transferred to the Forensic Hospital at Long Bay when a bed became available. He was transferred to the Forensic Hospital on 1 November 2021. He completed the "Substance Use Treatment Program" on 10 May 2023.
On 4 September 2023, the defendant's treating team applied for escorted day leave and unsupervised overnight leave. The day leave was sought for the purpose of the defendant attending community sex offender treatment programs and the overnight leave was sought to assist with graded transition to the community.
On 21 December 2023, the Tribunal made an "Order for Detention and Leave", order 3 of which provided that "the Medical Superintendent has the discretion to decide how often and for how long Mr Cole can exercise that leave and can impose further conditions and requirements on Mr Cole's leave".
The defendant remains a forensic patient pursuant to s 72(1)(c) of the MHCIFP Act and is presently detained in the Forensic Hospital. The defendant will remain in the custody of the Tribunal under the MHCIFP Act until at least such time as he is released by the Tribunal, pursuant to s 83(1) of that act. Pursuant to ss 10C(1A) and (2) of the CHRO Act, the defendant's obligations under his ISO are suspended if he is "in lawful custody… under any… Act or law".

[10]

The Crimes (High Risk Offenders) Act 2006 (NSW)

In determining whether final supervision orders should be made, regard must be had to the objects enunciated in s 3 of the CHRO Act. As stated in s 3(1), the primary object of the CHRO 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."
Although this is the "paramount consideration", s 3(2) of the CHRO Act provides that a secondary object is to encourage such offenders to "undertake rehabilitation." In making any orders under the CHRO Act, I must have full regard to the various objects of it.
The test required to be satisfied if the Court is to impose an ESO is set out in s 5B of the CHRO Act, which 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.
There is no issue that s 5B(a) is satisfied. The defendant is an "offender" as defined in s 4A of the CHRO Act. He is over 18 years old and has previously been convicted and sentenced to a term of full-time imprisonment for a "serious sex offence" as defined in ss 4 and 5(1)(a) of the CHRO Act. The index offence is an offence of aggravated sexual assault contrary to s 61J of the Crimes Act. The offence falls under the definition of a "serious offence" by virtue of it being a "serious sex offence": s 4 of the CHRO Act. It is a "serious sex offence" as defined in s 5(1)(a) because it is an offence under Div 10 of Pt 3 of the Crimes Act punishable by imprisonment of more than 7 years, committed in circumstances of aggravation, and therefore falls within the meaning of s 5(1)(a)(i) and (ii) of the CHRO Act. In the preliminary judgment at [28] Rothman J was satisfied the defendant committed a "serious sex offence".
The defendant is a "supervised offender" within the meaning of s 5I of the CHRO Act, as required by s 5B(b). At the time of the filing of the summons commencing proceedings, he was subject to parole for the index offence and therefore "on release to parole": s 5I(1)(3).
The final statutory pre-condition requires the Court to 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, pursuant to 5B(d). This precondition is not conceded by the defendant.
In determining whether to impose an ESO the Court is also required to consider the factors set out in s 9 of the CHRO Act. Section 9(1) provides that an application for an ESO may be determined by either making an order, or by dismissing the application. By virtue of s 9(2), the "paramount consideration" when making a determination is to ensure the "safety of the community".
Section 9(3) of the CHRO Act provides that in determining whether to make an ESO, the Court "must" have regard to the matters set out in that section. This list is non-exhaustive, and the Court may also have regard to "any other matter it considers relevant".
The 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: s 5D of the CHRO Act.

[12]

Unacceptable Risk

The CHRO Act does not define "unacceptable risk". Some insight into the term can be gleaned from s 5D of the CHRO Act which states: "…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."
In State of New South Wales v Keech [2024] NSWSC 408 ("Keech") at [42]-[43], I observed: "[42] 'Unacceptable risk' is undefined and should be given its ordinary meaning having regard to the context of the objects of the Act. In determining whether the plaintiff has discharged its onus, I have had regard to the expert evidence; the assessment of risk; the nature of the offending; the defendant's progress and compliance with supervision; breaches of the previous ESO; and the objects of the Act, primary amongst them being the safety of the community. [43] Given the significant restriction placed upon defendants who are subject to any supervision order and the onerous conditions with which they must comply, the degree of risk must be sufficiently grave that the community cannot be kept secure without the order."
The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the CHRO Act: see Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 ("Lynn"). Noting the paramount concern for community safety, in State of New South Wales v Holschier (No 3) [2019] NSWSC 341 Campbell J at [49] observed that "guaranteeing community safety is, of course, an impossible task; making it secure is a relative, not absolute, standard."
In State of New South Wales v Rush (Final) [2022] NSWSC 984 at [36]-[38] I set out a number of cases which discuss the manner in which the principles relating to "unacceptable risk" ought to be applied: "[36] The meaning of an 'unacceptable risk' in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] and [24] as follows: '[23] As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). (c) While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO. [24] The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].' [37] 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.' [38] These observations were affirmed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 who noted at [71] that "unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15]. [39] In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J stated the following at [14]-[17]: 'The ascertainment of a risk and its denotation as "unacceptable" occurs in the usual way. There are many areas of the law in which risk assessments are required to be undertaken and, generally, they identify and evaluate the possibility of an injury that may be sustained as a result of a possible (and often foreseeable) occurrence. In assessing risk and whether the risk is unacceptable, a court is required to deal with a matrix of considerations. First, there is the probability or possibility that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the manifestation of that risk. Thus a risk, the consequences of which are catastrophic, may be unacceptable, even though the occurrence of that risk is only slightly possible. On the other hand, where the manifestation of a risk involves minor injury, such as a contusion, even a high probability of its manifestation may not render the risk unacceptable.'" See also Lonergan J's remarks in State of New South Wales v Tannous (Preliminary) [2022] NSWSC 1682 at [37].

[13]

Plaintiff Submissions

The plaintiff makes seven key submissions in support of the imposition of an ESO: 1. Mr Cole has committed more than one serious sex offence, and whilst on parole. His offences are not an aberration of character but indicative of deep seated and, largely, untreated risk factors. 2. The Court-appointed experts, being A/Prof Darjee and Dr Dayalan, as well as the Risk Assessment Report ("RAR") author, Ms Sarah Wright, all opine that the defendant poses a high risk of committing another serious sex offence, having assessed his dynamic risk factors, his forensic history and having considered actuarial and professional judgment tools that assessed his risk. 3. The risks (static and dynamic) that underpinned the sex offences include an adversarial view of others, egocentric interpersonal patterns, substance use disorder (in remission in controlled environment), antisocial personality disorder, elevated sex drive, hedonistic views of sex and unhelpful views of women. Several risk factors remain present and untreated. 4. Mr Cole has been institutionalised most of his adult life. There is a significant concern the risk factors relating to his risk of repeated serious sex offending will return if he is released to the community in the absence of adequate supervision. 5. The defendant's treatment in the Forensic Hospital has been targeting his mental health needs, psychosis and substance use issues. Untreated, the defendant's mental health and substance use have led to psychotic episodes. 6. Experts, including the Court-appointed experts are unanimous in the view that the defendant requires support to reintegrate in the community to ensure his mental health remains stable and that he does not relapse into using drugs; as well as to monitor any elevation of his risks. 7. The Forensic Hospital does not have the same powers to impose conditions or provide support for Mr Cole's reintegration into the community to monitor and mitigate his risks of repeat serious sex offending.
The plaintiff submitted if the Court does not impose an ESO, the defendant would be continued to be managed by the Tribunal as a forensic patient. The Tribunal must "bear in mind the defendant's rights to liberty as well as the community's safety and the mitigation plan imposed by the Tribunal is essentially aimed at managing the defendant's mental impairment": the preliminary judgment at [84]. Nothing in the expert evidence suggests that the conditions that may be imposed by the Tribunal pursuant to s 85 of the MHCIFP Act would be sufficient to address the unacceptable risk otherwise associated with the defendant's liberty.

[14]

Defendant Submissions

The defendant does not concede that he poses an unacceptable risk of committing another serious offence. In essence, the defendant's position is that in circumstances where he continues to be a forensic patient supervised by the Tribunal, has National Disability Insurance Scheme ("NDIS") support, and voluntarily takes Buvidol and Sertraline, he should not be subject to supervision under an ESO.
The defendant argues that this case is both exceptional and unprecedented. It is submitted that it is appropriate for the Court to exercise its residual discretion to not make an ESO, as the safety of the community can be adequately addressed through the mental health regime. In respect of the Court's discretionary power to make an order under s 9 of the CHRO Act, the defendant relied on Lynn, in particular the remarks of Gleeson JA at [148]-[149]: "[148] It can be readily accepted that orders for the supervision or detention of a 'high risk violent offender' involve a significant restriction on the personal liberty of the subject outside the ordinary principles of the common law. The basis for that interference with liberty in specific cases is to be found in Parliament's determination that such orders may be made for the protection of the public. The pre-condition for the making of such orders is that the offender is a 'high risk violent offender': s 5E(1), Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of 'unacceptable risk' in s 5E(2) of the Act. There is no 'balancing' exercise involved in the court's assessment of the threshold of 'unacceptable risk'. [149] The interests of the offender in liberty and privacy are to be taken into account in the exercise of the court's discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order. Although not explicit in the Act, conceptually the exercise of the discretionary power can be viewed, as Basten JA has suggested, as involving an intermediate stage of considering the appropriate conditions which might be imposed as part of an extended supervision order, before considering whether such an order is otherwise appropriate. I agree with Basten JA that consideration of the possible intrusions on the offender's liberty and privacy are appropriately taken into account at that intermediate and final stage of exercise of the discretionary power. Contrary to the appellant's submissions in the present case, there is nothing inherently artificial in separating the adverse consequences for him and dealing with them only after the threshold assessment of unacceptable risk has been made."
The Court is urged to proceed on the basis that the mental health regime is robust. The unchallenged peer-reviewed longitudinal research demonstrates the Tribunal's effectiveness in managing forensic patients, for example in reducing recidivism, compared to sentenced inmates. The Court is urged to have regard to the research (see the affidavit of Susannah Coles, affirmed 9 July 2024, and Annexures "A" and "B" to it), as supporting the submission that the Tribunal will make decisions, in particular relating to conditional release, supervision and management of the defendant as a forensic patient, according to law.
It is submitted that the MHCIFP Act prioritises public safety and that the objects and provisions for forensic patients are similar to those for offenders subject to an ESO under the CHRO Act. The defendant also relies upon the "robust recall powers" if conditional release is granted by the Tribunal.
The defendant relies upon a number of cases to demonstrate that forensic patients, whose offences involve serious sexual assaults, have been able to be released, supervised and managed by the Tribunal, without electronic monitoring in the community: Attorney General of New South Wales v Ramirez (bht Limbury) (Preliminary) [2024] NSWSC 1286; Attorney General for New South Wales v HRM bht Ramjan (Final) [2021] NSWSC 1535; Attorney General for NSW v Delmege by his Tutor Dr Johnson (final) [2021] NSWSC 469; Attorney General for New South Wales v Rohan (a pseudonym) by his tutor Stuart (Final) [2024] NSWSC 643; Attorney General for NSW v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 99; Attorney General for New South Wales v McGuire by his tutor Thomson [2019] NSWSC 76.
Finally, the defendant submitted that despite the experts suggesting that supervision under both regimes is a positive thing for the defendant, it would potentially cause unnecessary confusion in circumstances where the Tribunal's supervision of the defendant as a forensic patient would be sufficient to manage any unacceptable risk of reoffending with a further serious offence.
The defendant's position is that if the Court is satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision of an ESO, the Court would nonetheless exercise a residual discretion not to make an ESO on the basis that the defendant will continue to be appropriately managed by the Tribunal as a forensic patient, including with the assistance of his recent NDIS package.

[19]

Report of Associate Professor Rajan Darjee

A/Prof Darjee provided a report to the Court dated 23 September 2024 with respect to the defendant's mental state and risk assessment. He records that the defendant has a history of drug induced psychosis and polysubstance misuse disorder. He also recorded that the defendant has a severe personality disorder and a high level of psychopathy.
A/Prof Darjee opined that the defendant's "most important clinical and risk factor" is whether he misuses substances. It is unlikely the defendant will have a further episode of psychosis if he avoids misusing substances. He remarked that the defendant has a personality disorder and that in particular his "grandiosity, manipulativeness, callousness, and lack of empathy" are "crucial responsivity factors" which cannot be altered by treatment. A/Prof Darjee did not conclude the defendant has a sexual sadism disorder (although noted that in the past he would have met the criteria for compulsive sexual behaviour).
A/Prof Darjee administered the STATIC-99R tool and recorded the defendant as a being at a "well above average risk" of sexual reoffending. As measured by the RSVP-V2 tool, the defendant's key risk factors that will need to be addressed include attitudes that condone sexual violence, problems with self-awareness, his psychopathic personality disorder and substance misuse, amongst other factors. Although the defendant's "major mental disorder" is a factor of less relevance, it still requires attention.
A/Prof Darjee recorded that the defendant's "ongoing concerns about his relationships with female staff, pushing boundaries, being forceful and deceitfulness" all appear to be an ongoing manifestation of the defendant's psychopathic personality traits. He further continued that the defendant would require a "high degree of support, intensive intervention and close monitoring and supervision" to mitigate against the risk of sexual violence upon his release.
A/Prof Darjee formed a view that that if the defendant was not subject to any form of supervision at the expiration of his time in custody, he would pose a high risk of committing a serious sexual offence. The defendant could not be managed in the community without any order, as he poses a "high risk" of committing a serious sexual offence if not subject to supervision. A/Prof Darjee opined that the most appropriate method to manage the defendant's risk would be through an ESO. He formed a view that release of the defendant as a forensic patient would be insufficient to adequately manage his risk of further offending and management of him under the mental health regime would be limited and less effective than that under the ESO regime. In that regard, he stated in his report at [161]: "Mr Cole was a forensic patient on conditional release at the time of the index offence. The forensic patient status allows for effective management of mental health conditions and substance abuse as the individual progresses in a graded manner through varying levels of security into the community. Mr Cole is currently in a high secure setting and there appears to be resistance from the medium secure units to accept him, posing challenges to graded reduction in security/forensic pathway. Mr Cole also has a number of criminogenic factors that are unrelated to a chronic mental health condition. Community corrections are better equipped to address these factors whilst providing a close level of supervision and monitoring following release into the community. In my opinion the risk of Mr Cole committing a serious sex offence cannot be adequately managed by provisions available under the MHCIFP Act." (Emphasis added.)

[20]

Oral Evidence of Dr Dayalan and Associate Professor Darjee

Dr Dayalan and A/Prof Darjee gave concurrent evidence at the final hearing with respect to the risk posed by the defendant upon his release and the appropriate means to manage his transition into the community.
A/Prof Darjee gave evidence about the level of risk the defendant posed. He acknowledged that although mental illness is "part of the picture" of the defendant's offending, it is "not the most important factor, and it's not an essential factor." In that regard, he concluded that forensic mental health orders which are primarily about managing mental illness to prevent risk to others, would not be appropriate as the link between the defendant's mental health and sex offending was not a salient feature of his offending conduct or risk of future offending.
A/Prof Darjee gave evidence about the legal and practical limitations associated with managing forensic patients in the community. He said that "a general adult mental health service with the legal provisions that are allowed for a forensic patient, perhaps with the opportunity for some input from the forensic mental health service would be inadequate to manage a high risk sexual offender with psychopathy…".
It was also noted by A/Prof Darjee, that the defendant quickly returned to methamphetamine use (and reoffending) the last time he was on conditional release and remarked that it is "difficult" to manage that risk factor "primarily under a mental health framework, rather than a supervision order or an extended supervision order." The defendant would not be "rigorously or not as closely monitored as a forensic patient as opposed to being on [an] ESO." In respect of monitoring the defendant's drug use, A/Prof Darjee remarked: "WITNESS DARJEE: I suppose all, all, all I want to add is I think, you know, it, it's pretty clear if you look at the legislation for forensic patients, you know, in New South Wales and elsewhere, it does allow you to do urine testing and it does allow you to give them a restriction where they can't take urine, I mean take drugs, sorry, and it also allows you to say 'If you test positive for drugs you're going to be in hospital'. Now, the legislation allows that, but I think, as Dr Dayalan has said, there's the practical reality. So, we know that when these patients are managed primarily by general adult services that whole process can become hit and miss. There's a lack of - it, it, it really does depend. Also, certainly in my experience when you have general mental health services managing these patients, which happens in every state in Australia apart from Tasmania and South Australia, you don't get the forensic rigour in management of cases, and you need to have - with someone like Mr Cole he, he's got a high level of psychopathy and he poses a high risk. You need, you need a very rigorous approach to managing those conditions, and I think with him substance misuse is so central that if he's taking substances it's an "act now" situation. If that could be done in mental health services, great. I don't have much confidence that it can because I've not, you know, for example I've not heard that it can be done in New South Wales, and certainly it didn't happen in Victoria, and certainly it didn't happen the last time he was out in the community. Yeah. He, he continued to take drugs. No‑one really picked up on it until he committed the index offence. So, I think he needs a much more robust approach to it and I think the most robust risk management approach you can have to his potential methamphetamine use is for him to be on a supervision order. I mean, there are lots of people who offend for the same reasons of him on supervision orders and it's, that's what it's kind of there for." (Emphasis added.)
A/Prof Darjee distinguished between the supports the defendant would receive from "general adult mental health services" under the mental health scheme and not "forensic mental health practitioners." He was not aware of any general adult mental health services that would be equipped to deal with an offender with his risk of sexual offending. He also referred to the "practical limitation" that some conditions available under an ESO regime are not generally available to "forensic mental health patients."
A/Prof Darjee was questioned about whether the defendant's risks could be managed adequately under the mental health regime with the support of the Treatment and Rehabilitation Clinic ("TRC"). The TRC is available for persons, both high risk sex offenders on an ESO and forensic patients, which provides "psychological and psychiatric treatment" but "doesn't provide risk management" or monitoring. Additionally, the staff working within the TRC team comprise of a general adult psychiatric team, who would not be trained in the management or treatment of risk factors present in the defendant's case. In view of this, A/Prof Darjee told the Court that the supervision restrictions available under an ESO are required in respect of the defendant because those available under the mental health regime are "not going to be enough."
The availability of NDIS to the defendant, was also discussed by A/Prof Darjee and in that regard, he acknowledged that while that "support can help… reduce the risk… you don't necessarily have people who necessarily have the direct skills or ability to manage the risk of types of offending" as relating to the defendant. Dr Dayalan also observed that the defendant poses a number of risk factors some of which are "historical" and "quite a few dynamic risk factors". Amongst these, the defendant was described as being "quite institutionalised".
With respect to whether Community Corrections are better equipped to address the defendant's risk factors, than management under conditional release, Dr Dayalan stated that the MHCIFP Act is "quite limited with regards to the amount of monitoring and supervision it can provide." He also observed that community mental health services have limited resources which may impact on the capacity to closely monitor and supervise the defendant, whereas the ESO regime is "better resourced to have more frequent interactions with [the defendant], and that will also allow for a monitoring of his activities whilst he's in the community."
Dr Dayalan largely agreed with A/Prof Darjee's comments. He emphasised the distinction between the management of forensic patients by "general adult services" as opposed to "clinicians who have expertise in forensic mental health" and who are "actively involved in [defendants'] management" under the ESO regime. He acknowledged that the TRC is part of the Community Forensic Mental Health services and primarily work with individuals who have been placed under an ESO.
Dr Dayalan gave evidence that the defendant's mental health conditions are not a "primary risk factor" in his case. He gave evidence that there are "other significant factors [...] identified in risk assessment that plays an important role in managing [the defendant's] risk of sexual recidivism." He gave evidence that instruments or measures available under the ESO regime, such as electronic monitoring and a schedule of movements would be "quite essential in the early stages of [the defendant] transitioning into the community". With respect to whether those measures could be imposed under the mental health regime Dr Dayalan acknowledged that "the [MHCIFP Act] itself allows for forensic provisions or electronic monitoring" but "we don't really have the infrastructure in the health services to be able to do that" nor, to his knowledge, had such conditions been imposed under the MHCIFP Act before.
Dr Dayalan opined that while a schedule of movements and electronic monitoring measures may be available to be imposed under the mental health regime, the enforceability of those conditions is "very limited": "WITNESS DAYALAN: I, I don't believe it's fundamentally similar. As I said, the schedule of movements will have restrictions on which places he goes to and, and having the electronic anklet allows for it to be monitored. And this talks about where he can live and that's correct and that's correct, MHRT can do that, but it has very limited oversight as to what places he can go to and who he can associate with. It does allow for kind of restricting association with victims or members of victims' family, but it doesn't really allow for any non‑association with individuals that might be using drugs or dealing with drugs."
Noting that substance misuse is a significant risk factor for the defendant, Dr Dayalan spoke to the resourcing and close monitoring of individuals under the ESO regime, as opposed to the mental health regime: "GOODHAND: Sorry, just to clarify. So, in terms of drug testing are you saying that it's not as closely monitored as a forensic patient under the supervision of the MHRT Forensic Division as it would be under [an] ESO? WITNESS DAYALAN: That's correct. So, quite often what they rely on is how resourced the community mental health team is, because they would be one who would be doing the drug testing. There have been instances where community mental health services have said they don't really have the resources or available team to do the drug testing and that's caused some problems, and as to how often and frequently they do it can also vary, depending on which community mental health team we're dealing with. Whereas, whilst under an ESO they are better resourced in ensuring that gets done on a regular basis. But, also, it's not just the drug testing, but a lot of other things, you know, under an ESO. For example, association and kind of restrictions on that, restrictions on where the person goes. You know, having a schedule of movements. They all assist with ensuring that he stays abstinent, especially in the early stages of him transitioning into the community‑‑ GOODHAND: So, just‑‑ WITNESS DAYALAN: ‑‑and those provisions are not available."
Dr Darjee acknowledged that there was a possibility that certain conditions on the defendant's conditional release could be managed by the Tribunal, and his electronic monitoring could be managed under an ESO, however, with respect to the defendant - who he observed has "a tendency to engender splits in services" - dividing conditions between two different schemes can lead to inconsistent outcomes and that regulating the defendant's transition to the community would be "much better done" by way of the ESO regime.
The proposed conditions discussed were varied and included conditions with respect to accommodation, a schedule of conditions, conditions relating to engagement with sex workers, and access to pornographic material. Dr Dayalan formed a view that the proposed conditions required for the defendant that would be necessary to mitigate against risk are the kinds of conditions that would be more appropriately administered by Community Corrections under the ESO regime rather than by mental health services under the mental health regime.
In oral evidence to the Court, Dr Dayalan and A/Prof Darjee maintained their views set out in their respective reports that the defendant posed a high risk of committing a further serious sex offence. Each of the experts were firm in their opinions that the risks posed by the defendant are better supervised and monitored under an ESO. They maintained their view that management by the Tribunal, as a forensic patient, would not adequately address the risks posed by the defendant.

[22]

Evidence of Dr Christina Matthews

Dr Matthews is the Acting Clinical Director of the Forensic Hospital, as appointed by the Justice Health and Forensic Mental Health Network ("JHFMHN"). She deposed in her affidavit sworn on 4 October 2024 that the conditions which may be imposed on the defendant under s 85 of the MHCIFP Act are "not fit-for-purpose" in the defendant's case. She referred to an "Initial Risk Management Report" provided by the JHFMHN which suggests that the defendant "requires a robust management plan given the complexities of his presentation". Dr Matthews referred to the defendant's "multiple risk factors" including his personality disorder, drug and alcohol issues, paraphilia and psychosocial dysfunction. She formed a view that "combined ESO and conditional release orders would allow for more comprehensive provision of care" for the defendant.
In oral evidence, in respect of the services that would be available to the defendant under the mental health regime or under the ESO regime, Dr Matthews deposed that that a conditional release order would not be able to "robustly guarantee support of services that are funded through Corrective Services NSW." In respect of the supervision that an ESO would bring as opposed to supervision under the mental health regime, Dr Matthews stated: "some of the features of [the defendant's] treatment plan that have been suggested would be potentially not available to him, such as the sex offender, community sex offender treatment program that he was attending in Surry Hills." She continued that the defendant has "quite considerable sexual offending risks" and "the involvement of Corrective Services NSW may allow for some of those risks to be looked at in a more comprehensive manner".
Dr Matthews also gave evidence about the practicalities of clinical supervision and compliance with conditions that could be imposed under an ESO and/or under the mental health scheme. She gave evidence that if an ESO was not imposed the responsibility of supervising the defendant's compliance with conditions would rest with "local community mental health team[s]" to be "ascertaining if the conditions are being adhered to" during reviews, however frequent they may be. The onus would be on those clinicians to report back to the Tribunal if they had concerns. Dr Matthews gave evidence that this is because once an individual is conditionally released "complete care is handed over to the community mental health team" and there is little overlap with care from the Forensic Hospital. On the other hand, she continued, that "in the event of ESOs being in place, you also have the staff members from Corrective Services NSW that may be able to assist in gathering information regarding compliance."
Regarding the potential for certain conditions to be imposed upon the defendant by the Tribunal, Dr Matthews acknowledged that the Tribunal may make a conditional release order regarding electronic monitoring, however for the duration of her time working in the Forensic Hospital (6 years) she was not aware of a patient in respect of whom such an order has been made. She gave evidence that "New South Wales Health does not have the capability to attend to monitoring, of the electronic monitoring device."

[23]

Risk Assessment Report of Ms Sarah Wright dated 20 December 2003

Ms Sarah Wright, Senior Psychologist with Corrective Services NSW prepared an RAR dated 20 December 2003 in respect of the defendant. In that report with respect to the defendant's attitude to his offending, she acknowledged that he disputed that the first sex offending was a sexual offence and he denied kissing the victim or engaging in any other intentional sexual behaviours. He also reported that in respect of the second sex offence he was "dirty on the world" and was using amphetamines and alcohol at the time. He initially asked the victim to engage in sexual behaviours to "see how far she would go" and interpreted her compliance as willingness.
The defendant described the index offence as occurring in the context of drug induced psychosis, delusions, and sleep deprivation. In respect of the index offence the defendant minimised the severity of his offending and focused on how he did not physically hurt the victim. He also appeared to minimise aspects of his sexual offending that would indicate any planning or sexual deviance. He acknowledged both the abduction and sexual offences against CF and the index offence and reported pleading not guilty because he was ashamed. Ms Wright also observed that the defendant demonstrated an understanding of the link between his substance use and psychotic symptoms and referred to the importance of engaging with mental health professionals.
Ms Wright made the following diagnoses in respect of the defendant: ASPD, substance induced psychotic disorder, substance use disorder (in remission in a controlled environment) and complex post-traumatic stress disorder ("CPTSD"). She opined that Mr Cole poses a high risk of further serious sex offending. She also observed that substance abuse appears to have been a measure used by the defendant to cope with his emotions and negative experiences. She further opined that his substance use leads to increases in negative interactions with antisocial peers and also exacerbates his underlying antisocial personality traits. Ms Wright suggested that the defendant's sexual offending occurred in the context of levels of high substance abuse and it is also likely to be the result of a "sense of entitlement, hostility towards women, the pursuit of power and control, and sexual arousal to coercive sex."
The RAR includes the results of a number of actuarial assessments and judgement tools that were administered to the defendant. Ms Wright also remarked on the results of other experts' administering those tools to the defendant, in the RAR. Those risk assessment tools included the LSI-R, STABLE-2007, Violence Risk Scale ("VRS"), STATIC-99R and RSVP-2. In respect of the LSI-R tool the defendant falls within the "high risk" category. In respect of the STABLE-2007 tool the defendant scored 15, which suggested a "high density of criminogenic needs". The areas of concern included the defendant's capacity for relationship stability, lack of concern for others, hostility towards women, and sexual preoccupation. Mr Cole was categorised in the "medium range" risk level of repeat violent offending on the VRS.
The defendant was placed in the "well above average" risk level by the STATIC-99R assessment. Ms Wright opined that when the defendant's score was combined with his STABLE-2007 score, he was also in the "well above average" risk level. The defendant's results of the RSVP-V2 assessment indicate he is in the "high risk" category for repeat sexual violence. The main risk factors identified included problems with self-awareness, a major mental disorder, problems with substance use and sexually violent ideation.

[31]

Does the defendant pose an unacceptable risk?

With respect to whether the defendant poses an "unacceptable risk" of committing a serious offence, I have had regard to the following. First, with reference to the remarks in Lynn at [58], the determination of risk ought to be given its "everyday meaning" within its context and having regard to the objects of the CHRO Act. The plaintiff emphasised that an evaluation of whether a defendant poses an unacceptable risk must be undertaken having regard to the primary protective purpose to "ensure the safety and protection of the community": s 3(1) of the CHRO Act.
Second, a determination of unacceptable risk is an "evaluative task" and the unacceptability of a particular risk involves considerations of both the likelihood of risk eventuating, and the gravity of that risk that may eventuate: see Lynn at [51]. A determination as to risk ought to be made in the relevant circumstances and the required state of satisfaction involves the exercise of a "discretionary judgment."
Third, the "high degree of probability" test referred to in s 5B of the CHRO Act indicates the Court must be satisfied to a higher degree than would be the case if a civil standard of proof were applied, although it does not reach so high as to the criminal standard of beyond reasonable doubt.
Fourthly, the impact of an ESO on a defendant's liberty is not properly regarded as a relevant factor in assessing unacceptable risk, which focuses on the assessment of factors relevant to the content of the risk itself.
The evidence of the Court-appointed experts is all one way. The defendant poses a high risk of committing a further serious offence. On all the material before me, there is ample evidence to establish that the defendant poses an unacceptable risk of committing a further serious offence if not kept supervised under an ESO.
In making that determination I have had regard to the defendant's CPTSD that underpins his illicit substance use and the ongoing assessment of being a high risk of committing a further serious offence. The defendant's risk factors include egocentric interpersonal patterns, substance use disorder, and ASPD. I have not, for the purposes of making this determination, had any regard to a suggestion that he is a sexual sadist.
Although the defendant has completed treatment programs, all of the experts including the Court-appointed experts remain of the view that the defendant must be closely managed in the community. Having regard to the defendant's institutionalisation, he is at risk of finding the transition to the community stressful. Without appropriate supervision and monitoring there is, in my view, a substantial risk of relapse into behaviours such as substance abuse, that are included in the high risk scenarios set out by the experts.
I am satisfied that the threshold statutory criteria have been met.

[32]

Exercise of residual discretion

I turn then to consider the second, and primary issue, in these proceedings. Having found that the defendant does pose an unacceptable risk of committing a further serious offence if not kept under supervision under an ESO, I am urged to exercise a residual discretion not to impose an ESO because the defendant can be adequately managed under the MHCIFP Act.
The experts have expressed concern, and in some instances, doubt, about the limitations on the Tribunal's ability to support the defendant's transition into the community and to supervise and monitor conditions imposed upon him to mitigate against his risk of serious offending.
There is no doubt that the Tribunal has substantial expertise in treating and managing mental illness. The concern in this case is that the defendant's serious sex offences were not causally connected to his mental health issues but were the result of other factors.
Ms Mathews gave evidence that an ESO would allow for supervision by Corrective Services and that a combined ESO and conditional release order would allow for more comprehensive provision of care and supervision. In cross-examination she was asked: "Q. Are you able to answer this question? In your opinion what would that supervision bring that a conditional release order would not? A. Yes. So, a conditional release order wouldn't, I suppose, be able to robustly guarantee support of services that are funded through the Corrective Services New South Wales network. So, my understanding is some features of the patient's treatment plan that have been suggested would be potentially not available to him, such as the sex offender, community sex offender treatment program that he was attending in Surry Hills. The community reintegration centre has gone on record to say they would be able to continue supporting Mr Cole even if he wasn't on an ESO. However, it is still affiliated with Corrective Services New South Wales and I'm not a hundred sure how robust that relationship would be without an ESO. And, look, that is probably beyond my scope. So, I know that that is usually a service that only exists for, for individuals for a defined period of time. It's not an ongoing relationship, and I think the Court is probably aware that Mr Cole has quite considerable sexual offending risks that need to be considered in a treatment plan. The involvement of Corrective Services New South Wales may allow for some of those risks to be looked at in a more comprehensive manner, just because that's where the funding is for some of these services at the moment. It's, it's not funded with Health. So, so that's a consideration. That's all I'm saying."
In relation to monitoring that compliance with conditions, Ms Mathews gave the following evidence: "Q. Would you, in respect of compliance with the conditions, expect clinicians to be in a position upon conditional release to supervise that compliance in the same way as would occur were an ESO in place? A. Yeah, so, I think that if no ESO was in place the responsibility would be on the clinicians with like for example the local community mental health team. So you'd be relying on, during their reviews however frequent they are, to be ascertaining if the conditions are being adhered to, and then they would have the responsibility of reporting back to the tribunal if they had concerns. In the event of ESOs being in place, you also have the staff members from Corrective Services NSW that may be able to assist in gathering information regarding compliance. … Q. In respect of supervision of compliance with conditions, if a person was conditionally released from The Forensic Hospital, would The Forensic Hospital have any staff available to be involved in that supervision with compliance with conditions? A. No, The Forensic Hospital doesn't have staff that work in the community. Q. When you say, "doesn't have staff that work in the community", do I understand that to mean there's no liaison from The Forensic Hospital's perspective with community mental health teams, for example, once a person is conditionally released? A. Once a person's conditionally released, then the complete care is handed over to the community mental health team. There isn't an ongoing period. There might be a short handover. But there's not an ongoing period where The Forensic Hospital remain involved in the care, no. Q. You were asked some questions in relation to your support for Dr Pulley's application for conditional release, what was the reason for your support for the application being made for conditional release at the time that it was? A. Well, I think at that point in time we were working with Mr Cole and his care providers with the community reintegration centre, and we felt the, the - that if tis continued on and an ESO was made and he continued to have these supports in place then it would be something that we would be supportive of, looking at applying for conditional release. Q. That is, did your support in relation to the conditional release involve an understanding that an ESO would be sought? A. Yes, that's correct."
In relation to the Tribunal's capacity to make an order for electronic monitoring, Dr Mathews was referred to a New South Wales Health Guideline entitled "Forensic Patient Electronic Monitoring", which states "the [MHCIFP Act] expressly allows the Mental Health Review Tribunal to order electronic monitoring as a condition of a forensic patient's leave or conditional release." However, it is clear from the evidence that although the Tribunal is empowered to impose such a condition, Ms Mathews is unaware of any such condition being imposed in the past six years and, importantly, that New South Wales Health does not have the capacity to monitor such a condition.
Both Dr Dayalan and A/Prof Darjee were in strong agreement about the "practical limitations" of mental health teams in the community. One of those limitations is that under a conditional release order, the defendant's treatment and management would be left to general adult mental health services and not to forensic mental health practitioners. Another practical limitation that both experts referred to was the Tribunal's capacity to monitor a condition such as electronic monitoring. Both experts were of the view that electronic monitoring and a schedule of movements are essential to mitigate risk, particularly in the early stages of the defendant's transition to the community: "WITNESS DAYALAN: So I'll probably be repeating some other comments made by Dr Darjee, but essentially restrictions such as the electronic anklet, a schedule of movements, in my opinion would be quite essential in the early stages of Mr Cole transitioning into the community and‑‑ DAVIDSON: Can I just stop you there; do you understand that to be something that those conditions are able to be imposed as part of a conditional release order pursuant to s 85 of the MHCIFP Act? WITNESS DAYALAN: Look the Act itself allows for provisions or electronic monitoring, but in practice as far as I know it's not been done, and you know we don't really have the infrastructure in the health services to be able to do that. So there is a provision I think in the Act, it does say they can be subjected to electronic monitoring, but in practice I don't believe that's been done."
In relation to whether NDIS support could contribute to appropriate monitoring in the community, without the need to impose an ESO, both of the Court-appointed experts were of the view that NDIS support does not manage the risk of serious sexual offending. While NDIS support is always helpful in reducing general risk, it does not provide expertise in managing the type of risk posed by the defendant, namely the risk of serious sexual offending.
In response to a question of whether the defendant's risk of reoffending could be properly managed under a conditional release order with the assistance of the TRC, Mr Darjee responded: "WITNESS DARJEE: Yeah the, the thing with the TRC is it provides psychological and psychiatric treatment, it doesn't provide risk management. And the, the concerns that I've expressed, and going back to earlier on in my evidence, are not around treatment, they're around risk management, monitoring and supervision. Yet the, the TRC provides treatment to address risk of sexual offending, but it doesn't provide monitoring, it doesn't provide supervision, it doesn't provide any of those things at all. And we've already established that, certainly in my view, the, the monitoring and supervision restrictions available on an ESO are required and a forensic order is not going to be enough. So you can't then put the TRC in which provides very good treatment, to try and make up for a lack of restrictions and monitoring. So the TRC you know is a treatment resource; they don't, they don't provide any, they don't provide case management or any risk management as far as I'm aware. GOODHAND: In conjunction with the Community Forensic Mental Health Service, with whom the TRC can work with, does that change your view? WITNESS DARJEE: No because the, the team they'd be working with would be a general adult psychiatric team. So if someone's released on conditional leave, the primary team responsible for management is a general psychiatric team. You know so one minute they're dealing with someone's depression, and the next minute they're dealing with someone like Mr Cole, and they're, they're not equipped. The general psychiatric service is just not..(not transcribable)..someone like Mr Cole and I, I wouldn't expect a general psychiatry colleague to try and manage someone like Mr Cole because his, you know the types of things that are leading to his risk, are not the types of things that general adult psychiatrists treat."
In answer to a proposition that the defendant's drug use can be closely monitored under the mental health regime in the same way that it could be under an ESO, Mr Darjee responded: "WITNESS DARJEE: I suppose all, all, all I want to add is I think, you know, it, it's pretty clear if you look at the legislation for forensic patients, you know, in New South Wales and elsewhere, it does allow you to do urine testing and it does allow you to give them a restriction where they can't take urine, I mean take drugs, sorry, and it also allows you to say "If you test positive for drugs you're going to be in hospital". Now, the legislation allows that, but I think, as Dr Dayalan has said, there's the practical reality. So, we know that when these patients are managed primarily by general adult services that whole process can become hit and miss. There's a lack of - it, it, it really does depend. Also, certainly in my experience when you have general mental health services managing these patients, which happens in every state in Australia apart from Tasmania and South Australia, you don't get the forensic rigour in management of cases, and you need to have - with someone like Mr Cole he, he's got a high level of psychopathy and he poses a high risk. You need, you need a very rigorous approach to managing those conditions, and I think with him substance misuse is so central that if he's taking substances it's an "act now" situation. If that could be done in mental health services, great. I don't have much confidence that it can because I've not, you know, for example I've not heard that it can be done in New South Wales, and certainly it didn't happen in Victoria, and certainly it didn't happen the last time he was out in the community. Yeah. He, he continued to take drugs. No‑one really picked up on it until he committed the index offence. So, I think he needs a much more robust approach to it and I think the most robust risk management approach you can have to his potential methamphetamine use is for him to be on a supervision order. I mean, there are lots of people who offend for the same reasons of him on supervision orders and it's, that's what it's kind of there for."
The Tribunal is best placed to treat the defendant's psychiatric health and reduce the risk of future psychosis. I repeat however, that the defendant's mental health conditions are not critical to the question of management of his risk of sexual recidivism.
There is no doubt that the Tribunal would act according to law. However, I am not persuaded that a conditional release order, together with NDIS support, can adequately manage the risk posed by the defendant. The experts agree that the defendant's risk factors are more adequately managed under an ESO.
As to the Tribunal's recall powers, I accept that there is a distinction to be drawn between the theoretical availability of those powers, and the evidence as to the manner in which monitoring of compliance with conditions by a forensic patient in the community and exercise of those powers takes place. A/Prof Darjee was not aware of an instance of a forensic patient being recalled simply for failing a drug or alcohol test.
The defendant's reliance on research papers demonstrating the Tribunal's effectiveness in managing forensic patients, has limited weight. The evidence is lacking as to the conditions that would, as opposed to wouldn't, be imposed by the Tribunal as part of its management of the defendant. Furthermore, the Tribunal's overall effectiveness in managing forensic patients, does not deal with the particular circumstances of this case and the expert evidence about the defendant's risk factors and the degree of supervision and monitoring required to mitigate the risk of the defendant committing a further serious sex offence.
The defendant's reliance upon cases where forensic patients, whose offences involve serious sexual assaults have been released, supervised and managed by the Tribunal, is also of limited assistance. These cases do not assist the Court in determining whether to exercise its discretion to impose an ESO on the defendant.
Although the facts of the present case are novel, the Court-appointed experts are highly skilled forensic psychiatrists, experienced in the operation of the mental health regime under the MHCIFP Act. Each expert has given evidence about the challenges of management of forensic patients, with a particular profile of the defendant, being managed under a conditional release order. The unanimous expert evidence weighs strongly against the submission that supervision by the Tribunal as a forensic patient (in the community) would be sufficient to manage any unacceptable risk of the defendant reoffending with a further serious offence.
The preponderance of the expert evidence is that while each regime is capable of imposing supervisory conditions the particular risk factors of the defendant are better managed under the ESO regime. It seems to me that given the evidence of the experts about funding limitations and available infrastructure, conditions such as electronic movements, schedule of movements, and drug testing (which are necessary to mitigate risk) are much better provided for under an ESO.
Having considered all of the evidence and the submissions on behalf of the defendant and the plaintiff, I am comfortably of the view that an ESO is necessary to provide adequate supervision and monitoring of the defendant's risk of committing a further serious sex offence.

[33]

Conditions

The defendant either opposes, or opposes but does not object to, the proposed wording of the conditions. The conditions which are not opposed by the defendant are conditions 1 to 3, 6, 17, 39 and 40.
The defendant relies upon s 85 of the MHCIFP Act in submitting that on applications for release, including conditional release, the Tribunal can make conditions which include, but are not limited to, electronic monitoring, drug testing, accommodation and living conditions. Essentially, the defendant argues that given the scope of the conditions that can attach to a conditional release order under the MHCIFP Act, it is not necessary to impose many of the conditions sought by the plaintiff.
In Keech I set out the principles to be considered in assessing the necessity of conditions proposed by the plaintiff at [45]: "As indicated earlier in this judgment, the real issue between the parties is whether, and to what extent, the conditions proposed by the plaintiff are necessary and/or appropriate. A summary of the principles regarding the imposition of conditions attaching to a supervision order are helpfully summarised in the defendant's written submissions (at [30]) and are extracted below: (i) Having served their sentence, an offender has a right to personal liberty, although this right is not absolute: State of NSW v Donovan [2015] NSWSC 1254 at [83]. (ii) In imposing conditions, the Court needs to strike a balance between competing considerations to provide an outcome which is fit and proper: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of New South Wales v Fisk [2013] NSWSC 364 at [96]. (iii) It is relevant that a breach gives rise to criminal penalty of up to 5 years imprisonment, which supports the position that a proper basis must be shown to warrant the imposition of each condition: Wilde v State of New South Wales [2015] NSWCA 28 at [48]. (iv) A link to past offending is not necessary, but conditions should address the risk of future offending based on the scope, purpose and objects of the Act. (v) Conditions should focus on mitigating the risk of a 'serious offence', and not on reoffending generally: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. (vi) Conditions must not be unjustifiably onerous, punitive, paternalistic, in the 'general' public interest, or for the convenience or efficiency of those supervising the offender: State of New South Wales v Bugmy [2017] NSWSC 855 at [89]. (vii) An identifiable and substantive purpose is required for each condition. Speculation that it will be useful will not suffice: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]. (viii) Conditions imposed ought to be the least intrusive conditions that are still consistent with the objects and purpose of the Act: Lynn v State of New South Wales [2016] NSWCA 57 at [129]-[131]." See also State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44].
For the reasons set out above I am satisfied that the conditions sought by the plaintiff (with the exception of condition 25) should attach to the ESO, either in the words formulated by the plaintiff or the words contained in the current conditions attaching to the ISO. The evidence of the Court-appointed experts is that although the Tribunal has the power to impose conditions on a conditional release order, there is some doubt about whether essential conditions such as electronic monitoring and a schedule of movements can be properly monitored under that regime.
Given the degree of risk posed by the defendant and his institutionalisation, it is essential that comprehensive conditions are imposed at least initially, to ensure that his transition to the community is closely supervised and monitored so as to reduce the risk of the defendant committing a further serious sex offence. Not only must the conditions be comprehensive, but the Court must be satisfied that the regime under which they are imposed, has the funding, infrastructure, and expertise to monitor compliance.
In my view, that can only be done under an ESO. In relation to conditions 12, 34 and 38, the conditions as framed under the ISO adequately allow for the monitoring of the defendant whilst striking a balance with his right to a degree of privacy and autonomy.
I declined to impose condition 25 as it unnecessarily restricts the defendant's movements.

State of New South Wales v Cole

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Judgment (49 paragraphs)

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Legislation Cited (7)

Cases Cited (27)

Cited By (1)