State of New South Wales v Costigan - [2021] NSWSC 1386 - NSWSC 2021 case summary — Zoe

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State of New South Wales v Costigan

[2021] NSWSC 1386

Supreme Court of NSW|2021-10-15|Before: Dhanji J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-10-15

Before

Dhanji J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

Judgment

HIS HONOUR: By summons filed in this Court on 23 July 2021, the plaintiff seeks an order that the defendant be subject to an extended supervision order (ESO) for a period of three years pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). Various conditions are sought as part of that order.
Prior to any final order being made the plaintiff seeks interim orders. In particular, the plaintiff seeks an order appointing two qualified psychiatrists and/or registered psychologists to conduct a separate psychiatric and or psychological examinations and provide reports with respect to the defendant. The plaintiff further seeks an order placing the defendant on an interim supervision order (ISO) for a period of 28 days subject to conditions.
The defendant does not oppose the interim orders sought. He does, however, take issue with some of the proposed conditions. To be clear, the defendant's concession is limited to the interim orders sought. The defendant has indicated an intention to oppose the making of the ESO itself, when that issue comes to be determined at any final hearing.
Irrespective of the attitude of the defendant, it remains for me to be satisfied that the interim orders should be made. In the event an ISO is made, it is for me to determine the appropriate conditions to be imposed.
For the reasons that follow, I propose to grant the interim relief sought by the plaintiff, but I am not minded to impose all of the conditions sought.

[2]

Legislative scheme

The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3].
The objects of the Act are set out in s 3: 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 9(1) of the Act provides that this Court may determine an application for an ESO by making an order or dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO "the safety of the community must be the paramount consideration". It follows that ESOs are, in their nature, protective and not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5].
Section 7(3) of the Act requires a preliminary hearing into the application to be conducted within 28 days of the filing of the application. Section 7(4) provides: (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations.
If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, the making of an order, I must dismiss the application: s 7(5).
Section 10A provides: 10A Interim supervision order The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
It might be noted that s 7(4) mandates the making of orders if the relevant test is satisfied ("must make orders") while s 10A provides for a discretion ("may make an order"). Otherwise, both provisions provide the same threshold, that is, "that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order": s 7(4). That test draws attention to the central provision with respect to extended supervision orders, s 5B, 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.
Section 5D further clarifies the test. It provides that a Court asked to make an ESO "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".
The expression "supporting documentation" used in ss 7 and 10A ("the matters alleged in the supporting documentation") is defined in s 4 to mean the documentation referred to in s 6(3). That subsection provides a requirement that an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act, and a report prepared by a qualified psychiatrist, registered psychologist, or registered medical practitioner that assesses the likelihood of the offender committing a serious offence.
The authorities establish that, at this preliminary stage, my task is not to weigh up the documentation or predict the ultimate result. Nor is it to consider what evidence the defendant might call at the final hearing. Rather, the test to be applied at this stage is akin to the prima facie case test applied by magistrates as part of committal proceedings: Attorney-General for the State of New South Wales v Hayter [2017] NSWSC 983 at [6]; State of New South Wales v Brookes [2008] NSWSC 150 at [13]. The question is whether the material would "justify" the making of an order (and not whether an order should actually be made).

[3]

Factual background

The defendant is a 28-year-old Aboriginal man whose criminal history began in 2009 with a series of relatively minor driving offences. From 2011, the defendant's criminal record discloses offences of common assault; stalking and intimidation; failure to appear; property damage; dealing with proceeds of crime; break, enter and steal from residences; assault occasioning actual bodily harm; recklessly causing grievous bodily harm in company; and possession of a prohibited drug, with the most recent conviction being an offence of assault occasioning actual bodily harm, committed on 26 June 2020.
As a result of that record, the defendant has spent a total of approximately 8 years of his adult life in custody.
In terms of the defendant's custodial history, the following aspects are notable.
On 2 February 2015 the defendant was sentenced to a total of 3 years and 6 months with a non-parole period of 3 years with respect to two offences of assault occasioning actual bodily harm. During the currency of the above sentence, on 18 October 2016 the defendant was convicted by Ellis DCJ following pleas of guilty to charges of recklessly cause grievous bodily harm in company and one count of take and drive conveyance without consent (contrary to ss 35(1) and 154(1)(a) of the Crimes Act 1900 (NSW) respectively). The grievous bodily harm offence is described by the parties as the "index offence", it being the "serious offence" under the Act, a prerequisite for the making of an order under s 5B.
For the above offences, the defendant was sentenced to a total of 5 years imprisonment to expire on 29 October 2021, with a non-parole period of 2 years and 6 months. The sentencing judge recommended that the defendant undertake the self-regulation programme for violent offenders (the SRP-VO) in custody, and that he be released to parole on 29 April 2019.
On 7 April 2020, the defendant was released to parole. On 29 June 2020, he was returned to custody following a breach of parole.
On 29 April 2021, the defendant was granted parole with a scheduled release date of 29 June 2021, allowing a four-month period of supervised parole until the expiry of his sentence on 29 October 2021.
On 19 September 2021, the defendant was charged with two counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act, and one count of stalk or intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The charges are due to be heard before Maitland Local Court on 29 October 2021. The defendant was refused bail and his parole was revoked.
As noted above, the index offence is that of recklessly causing grievous bodily harm, which was committed in company in 2014.
The circumstances of the index offence were as follows. On 29 June 2014, the defendant and another male were standing on the side of the road at about 12:45am when they waved down a vehicle, seemingly indicating that they were in trouble and seeking assistance. When the victim stopped and got out of the car, he was assaulted by the defendant's co-offender, who swung a spirit bottle which struck the victim on the left-hand side of his face near his eye and cheekbone. The two remaining people in the victim's car ran off. The defendant then drove the victim's car about 10 metres away from the victim before swerving and stopping. He got out of the car and stood over the victim. The victim and the defendant's co-offender wrestled on the ground. The victim saw a knife and baton. The victim heard the co-offender say, "I'm going to kill you".
The defendant and his co-offender then drove away in the victim's car. At about 12:50am, the car mounted the kerb and crashed through the front fence of a nearby property.
The victim sustained a fracture to his maxillary and mandibular incisors with multiple loose teeth which required repair and subsequent removal. He had multiple facial abrasions, a laceration to his left ear with a wound that was closed with glue, a soft tissue injury to his right shoulder, and a mild head injury.
The defendant has also committed domestic violence offences against three partners.
The first occasion was in 2011, when he was 18 years old. An argument between the defendant and the victim arose due to the victim having had a sexual relationship with the defendant's friend. The defendant struck the victim's face several times, causing her to suffer a split lip. He stated he was drug affected at the time of this offence.
The second occasion was on 30 October 2014, approximately four months after the commission of the index offence. The defendant was charged with two counts of assault occasioning actual bodily harm against his then partner and her eight-month-old infant. The defendant grabbed the victim around the throat and pushed and punched her repeatedly. The infant stirred upon which the defendant kicked her several times, jammed his fingers down her throat, forced her bottle into her mouth, and placed the lit end of a cigarette onto her forehead. Despite the defendant's partner yelling at him to stop, he picked the infant from the floor by the collar of her shirt and threw her on the bed. He then bit the infant's legs, following which he returned to punching his partner to the face. The defendant was purportedly drug affected at the time of this offence.
The third occasion of violence against a domestic partner was on 29 June 2020, when the defendant committed an offence of assault occasioning actual bodily harm. He was on parole at the time. The offence occurred when the defendant had been residing at a hotel in Maitland. Following a 10-day methylamphetamine binge, he accused his partner of infidelity and an argument ensued. That argument escalated and the victim attempted to flee by running away. The defendant caught up with her and hit her across the side of the face with a torch. The impact caused a cut and large haematoma across the victim's forehead. The defendant was sentenced to 12 months' imprisonment with a non-parole period of 4 months.
Separately, on 29 August 2014, the defendant committed an offence of destroy or damage property (s 195, Crimes Act). This offence occurred in his mother's home. Police observed a large flat screen television and a coffee table that had been smashed at the scene. The resultant apprehended domestic violence order was placed against the defendant for the protection of his mother. On this occasion, the defendant's mother refused to provide a statement; however, she was reportedly highly distressed, telling police, "I want this to stop. I have had enough".
Other pertinent matters, particularly the defendant's personal and clinical history, are relevant to my determination and shall be considered later in this judgment.

[5]

The risk posed by the defendant

In my assessment of the risk posed by the defendant, I have had regard to the following materials.
First, the risk assessment report prepared by Mr Ardasinski, Senior Psychologist, on 21 May 2021. Relevant aspects of that report are set out below: 1. The defendant's risk of committing further violence, including the potential for serious violence, was assessed as falling in the high range for both domestic violence and other forms of reactive violence. 2. The defendant did not participate in the most appropriate treatment programme available, which was recommended at the time of his sentencing. It was said that that was because he feared for his own safety, and his participation in that program would have required him to "sign off" protection. He did, however, complete a program of lesser intensity. 3. In the event that the defendant is in custody (as is now the case before me), Mr Ardasinski opined that there would be no guarantee that the defendant would consent to participate in a higher-intensity program, due to his aforementioned safety concerns in doing so. 4. If the defendant were to be subject to an ESO, the mitigation of future risk "may be enhanced by ongoing community supervision and disability support, as well as intensive efforts to prevent a return to substance use, association with antisocial others or involvement in relationships without extensive potential victim safety planning and further intervention into Mr Costigan's relationship skills deficits". 5. It was evident in the interview that the defendant was functioning in the range of intellectual disability (the bottom 1% of the population, intellectually).
I have had regard to the risk management report of Terry O'Brien, Senior Community Corrections Officer (and endorsed by Kelli Grabham, High Risk Offender Applications and Operational Governance Officer) of 17 June 2021. The report notes that the defendant's pre-release report; manifest injustice reports; and balance of parole report (those reports spanning 2019-2021) all recommended that parole not be granted, and that the defendant had done little to engage in offence specific programs.
The author opined that if parole were to be granted, the defendant be subject to conditions restricting the use of prohibited drugs; undertake appropriate programs and counselling; comply with all directions of the mental health team; and not communicate with the victims, their families, and co-offenders (subject to the express prior approval of an Officer).

[18]

Determination

As noted above, the defendant did not oppose the making of an interim order. He did, however, anticipate that having particular regard to the age of the index offence, the fact that the defendant's liability was based on his complicity in the offence as a party to a joint criminal enterprise (as opposed to having inflicted the violence himself), and that subsequent offending has not been at the level of a serious offence, there would be a dispute as to whether a final order should be made. In this regard, the defendant noted that at any final hearing he expected that there would be a challenge to opinions expressed in, at least, the risk assessment and risk management reports and there would be cross-examination of relevant experts. It is, of course, not known what any court-appointed experts will say with respect to the defendant's risk.
Irrespective of the position of the defendant, I must still be satisfied that the matters alleged in the supporting documentation would, if proved, the making of an extended supervision order.
The unfortunate reality is that the defendant, now 28, has, as noted above, spent approximately eight years of his adult life in custody. The combination of sentences imposed across various matters in 2014 resulted in an effective sentence of 7 years with a non-parole period of 4 years and 6 months commencing on 30 October 2014. The defendant was not released to parole until 7 April 2020. From that time, he has not been in the community for longer than a few months at a time having been returned to custody on two occasions as a result of his arrest with respect to further offences and breaches of parole conditions.
In addition, despite the length of time the defendant has been in custody, there has been little engagement in programs, and scant evidence of progress towards rehabilitation. The evidence demonstrates a strong link between the defendant's use of prohibited drugs and his resort to violence. The defendant's drug problem is long-standing. Of current concern is the fact that whilst the defendant had, in December 2020, commenced a program by which he received depot injections of buprenorphine, it appears having regard to case notes dated 28 July 2021 and 5 August 2021, that he has removed himself from that program without engaging in a suitable alternative program. In effect, if released, the defendant will return to the community with an unresolved drug problem. Given the connection between the defendant's past violence and his drug use, the potential for future violence is plain.
Whilst the serious offence which provides the foundation for the order was committed some time ago (in June 2014), there have been numerous violent offences since that time. While none of other offences rise to the level of a serious violence offence under the Act, they suggest continuing violent proclivities.
Having regard to all the s 9(3) matters referred to above, including in particular the risk assessment and risk management reports, I am satisfied that the matters alleged in the supporting documentation would, if proved, justly the making of an extended supervision order. Further having regard to s 9(2) of the Act I am of the view that it is appropriate that the discretion in s 10A of the Act be exercised in favour of making an order.
I turn then to the appropriate conditions to be imposed in connection with the interim supervision order.

[19]

Conditions to be imposed

Section 11(1) of the Act provides that an interim supervision order "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". An inclusive list of directions which may be given is then set out at s 11(1)(a) to (n). Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.
The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act (discussed earlier in this judgment).
Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44], citations omitted): "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; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty; (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; (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence; (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"; (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice"; (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible".
The interim ISO will be in place for a maximum period of 3 months: s 10C(2). Given this, my reasons in relation to the appropriateness of the various conditions sought will be short. The conditions to be imposed are set out in the Schedule to these reasons in a way which shows the modifications to the conditions sought in the summons.

State of New South Wales v Costigan

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