State of New South Wales v Costigan

Factual background

1. 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.
2. As a result of that record, the defendant has spent a total of approximately 8 years of his adult life in custody.
3. In terms of the defendant's custodial history, the following aspects are notable.
4. 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.
5. 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.
6. On 7 April 2020, the defendant was released to parole. On 29 June 2020, he was returned to custody following a breach of parole.
7. 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.
8. 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.
9. As noted above, the index offence is that of recklessly causing grievous bodily harm, which was committed in company in 2014.
10. 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".
11. 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.
12. 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.
13. The defendant has also committed domestic violence offences against three partners.
14. 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.
15. 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.
16. 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.
17. 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".
18. Other pertinent matters, particularly the defendant's personal and clinical history, are relevant to my determination and shall be considered later in this judgment.

This application

1. The defendant concedes, and I am satisfied, that the matters in s 5B(a), (b) and (c) of the Act are satisfied. That is, I am satisfied the defendant is serving a sentence of imprisonment for a serious offence in custody. I am further satisfied the defendant is a "supervised offender" and the application has been made in accordance with s 5I of the Act.
2. Thus, the exercise for present purposes requires me to determine whether the matters alleged in the material relied upon by the plaintiff, if proved, would justify (in the sense earlier discussed) satisfaction to "a high degree of probability that the [defendant] poses an unacceptable risk committing another serious offence if not kept under supervision". That material includes two risk assessment reports (for the purposes of s 6(3)(b)), and a number of reports and other material that address the matters set out in s 9(3) (for the purposes of s 6(3)(a)).

The risk posed by the defendant

1. In my assessment of the risk posed by the defendant, I have had regard to the following materials.
2. 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).
3. 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.
4. 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).

Addressing the s 9(3) considerations

1. Section 9(3) requires that consideration be given to various matters.

The reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s 9(3)(b)

1. As this is a preliminary hearing these reports have not yet been obtained.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner: s 9(3)(c)

1. The risk assessment report has been discussed, above. I have also had regard to the various reports tendered on the application.
2. The Brief Psychological Assessment Report of 21 January 2015 authored by Nichole Buchanan refers to the difficulty in his childhood, notably in terms of bullying and "anger issues" from a young age. The defendant scored in the "Extremely low" range in the Weschler Abbreviated Scale of Intelligence test (in the first percentile; that is, his performance was poorer than that of 99% of the general population). His estimated range of expected scores for a full Weschler cognitive assessment was 61-65 (with 95% confidence). The scores were said to meet the criteria for a referral to various services.
3. It was recommended that the defendant engage, inter alia, in the SRP-VO program; that he be referred to community based services to address his substance abuse; and that he participate in suitable programs to address his anger management issues.

The results of any statistical or other assessment: s 9(3)(d)

1. This matter has been considered in the context of the expert reports.

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

1. As discussed above, I have had regard to the risk management report of Terry O'Brien (Senior Community Corrections Officer). He opined that the defendant would benefit from more comprehensive supervision and continuing therapeutic engagement.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs: s 9(3)(e)

1. As noted by Mr Ardasinski, the defendant did not participate in the most appropriate treatment program available, ostensibly due to safety concerns. He had, however, completed a program of lesser intensity.
2. Notwithstanding the non-completion of the "appropriate" program, I have given some weight to his completion of the lower-intensity program in my determination.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

1. In terms of non-custodial or post-release options, the "Manifest Injustice" Pre-Release Report indicates options such as engagement with Aboriginal Medical Services and Community Health are available. Further, it indicates participation in the EQUIPS program is available, as well as culturally specific intervention, engagement with the Initial Transition Service, and Corrective Services NSW Psychology Services for further cognitive assessment and supervision recommendations. In terms of efficacious post-release monitoring, there are available options such as drug testing, regular contact with the above services, and contact with the defendant's family.

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(3)(e2)

1. One can deduce from the defendant's repeated breach of parole; his past offence of failure to appear; his lengthy criminal record; and his past resistance to complying with a therapeutic regime, that he has had some difficulty in abiding by court and executive orders. Such a trend indicates the difficulty is likely to continue into the future.

The level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order: s 9(3)(f)

1. The defendant has a history of non-compliance with parole conditions. If the current charges are proved, he has again breached parole. At times, his response to supervision has been described as "superficial and sporadic". The likelihood of success of the defendant's compliance can be increased by tailoring conditions appropriately so that they are not onerous or bordering on the oppressive.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. The defendant's lengthy criminal history is recounted in the factual background above.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1)

1. Ellis DCJ noted that the index offence involved a "vicious assault". His Honour also noted the extensive injuries the victim suffered to his face and mouth. Ultimately, the victim had three incisors removed and required further ongoing dental repair. The defendant's significant substance abuse problem was noted. His anger management issues, which were said to be present since childhood, were also noted. His Honour made clear that it was the co-offender who inflicted the injuries by swinging the spirit bottle and striking the victim.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

1. I have had regard to the "Community Offender Services Probation and Parole Service Pre-Sentence Report" of 1 March 2013. This is a dated document, but it is useful in that it indicates static, potentially criminogenic, factors. The defendant admitted to using cannabis at age 17, progressing to daily use of that substance and other illegal drugs up until the time of the arrest the subject of that report. The report concluded with an assessment of the defendant as being "suitable for a medium level of intervention by this Service".

Determination

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. I turn then to the appropriate conditions to be imposed in connection with the interim supervision order.

Conditions to be imposed

1. 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.
2. 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).
3. 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".
4. 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.

Conditions 1 to 4 - monitoring and reporting

1. Conditions 1 to 3 are appropriate. Condition 4, as sought, is in my view inappropriately broad in that it requires the defendant to agree to information being shared between any of the persons caught by order three. In my view, it is sufficient to provide for information to be shared between the agencies involved in the defendant's supervision. Whilst it is not entirely clear such a condition is required in order to share such information, I propose to make order 4, but deleting the words "those persons and".

Condition 5 - electronic monitoring

1. Condition 5 relates to electronic monitoring. Having regard to the obtrusive nature of such the condition, I have given careful thought to whether it is appropriate in this case. The offender's violent offences have, in the past, been impulsive acts. However, the connection between those offences and the defendant's drug use is manifest. There is utility in providing for close monitoring of the defendant in order to maximise his prospects of remaining drug-free which will, in turn, significantly reduce the prospect of violent offending. Additionally, it is to be observed, that the defendant's success on conditional liberty has been extremely limited. It may be that electronic monitoring will be significant in reducing any temptation on his part to breach other conditions of the order. Viewed another way, in this particular case, such a condition may maximise the offender's prospects of complying with conditions in a context of previous repeated failures. Whilst it is not determinative, I note that no submission was made on behalf of the defendant against the imposition of this condition. I am satisfied, having regard to these matters, that condition 5 is appropriate.

Conditions 6 to 25 - schedule of movements

1. These conditions provide for a schedule of movements, accommodation, place and travel restrictions, employment finance and education and drug and alcohol use. There was no opposition to these conditions and I am satisfied that they are appropriate.

Conditions 26 to 31 - association

1. Condition 26 prohibits contact with persons the defendant either knows or reasonably should know are under 18, without the prior written permission of the DSO. An exception is made for incidental contact in a public place in the course of the duties of the minor. Further provision is made for the DSO to provide conditions with respect to approved contact.
2. The plaintiff submitted that this condition is appropriate having regard to the offence committed in October 2014 and the potential for violence in a domestic setting against not only some prospective partner, but also in relation to any child of such a partner. While there is a basis for such concerns I am of the view that an objective test such as "reasonably should know" is inappropriate in the circumstances of this case. The foundation for any concern based on history relates to primarily to young children. In the case of young children it will not be difficult to establish that the defendant was aware child was under 18. Even in the case of older children, the defendant is likely to know the age of any child of a domestic partner. Condition 26 should be imposed subject to the deletion of the words "or reasonably should know".
3. In relation to condition 30, there was agreement that the words "having regard to community safety" should be added after the word "necessary". Otherwise there was no dispute as to conditions 27 to 31, and I agree that such conditions are appropriate.

Condition 32 - weapons

1. Condition 32 relates to weapons. It was not opposed and is appropriate.

Conditions 33 to 43 - access to the Internet and other electronic communications

1. The defendant opposed these orders. He submitted that there was nothing in his history that would raise a concern with respect to his use of the Internet. The defendant noted that conditions 44 and 45 allow for the inspection of any electronic device under the control of the defendant. He submitted and in the circumstances of this case that is sufficient. I agree. But, as indicated at the hearing, I am of the view that conditions 36, 37, 39 and 42 are required in order to make effective condition 44. I propose to impose those conditions but not the other conditions sought by the plaintiff which I do not regard as appropriate.

Conditions 44 to 45 - search and seizure

1. As noted above, the defendant did not oppose these conditions. They provide for search of premises and devices and are appropriate for monitoring compliance with the other conditions of the order.

Conditions 46 to 49

1. These conditions relate to restrictions on the defendant changing his details or appearance. I understand these are standard orders sought in every case. In this case, there is nothing to suggest the defendant has ever tried to avoid obligations by changing his name or appearance. The orders were not opposed, I apprehend on the basis that they were not relevant to the defendant and he was therefore unconcerned by them. Be that as it may, and I make no criticism of the defendant's approach, ultimately, I have to be satisfied the conditions are appropriate. I am not, with the exception of condition 48, which will facilitate monitoring of the other conditions.

Conditions 50 to 53 - medical intervention and treatment

1. These conditions relate to medical intervention and treatment. They were not opposed and appropriate.

Conclusion

1. The conditions I regard as appropriate in all the circumstances of this case, based on the above reasons, are those set out in the Schedule to this judgment.

Orders

1. I make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (''the Act''): 1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed; 2. Directing the defendant to attend those examinations. 1. Pursuant to ss 10A and 10C of the Act, the defendant be subject to an interim supervision order for a period of 28 days. 2. Pursuant to s 11 of the Act, direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application access.

State of NSW v Costigan Schedule of Conditions (93063, pdf)

Amendments 26 April 2022 - minor typographical errors 26 April 2022 - Schedule attached DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2022