State of New South Wales v Davison

The statutory framework

1. The critical question for determination on the State's application for an ESO is whether the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence (as defined) if not kept under supervision as provided for in s 5B(d) of the Act.
2. The legal principles that are engaged in the Court's assessment of risk were recently summarised by Hoeben CJ at CL in State of New South Wales v Holscheir (No 2) [2018] NSWSC 1921 at [23]-[24]:
3. As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: 1. 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 v State of New South Wales [2016] NSWCA 57 at [50]). 2. What the Court must find to be unacceptable is the risk of the offender committing a serious violence offence if he or she is not kept under supervision (see Lynn at [51]). 3. While the Act does not specify the precise parameters or standard or norm against which that determination is to be made, that is, the determination whether a defendant poses an unacceptable risk (in this case, of committing a serious violence offence), a determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which the determination is made (see Lynn at [51]). 4. The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act. 5. The statutory objects of the Act in s 3 are to be considered: (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. 1. Section 9(2) of the Act, introduced by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW), obliges the Court to give primacy to the safety of the community. 2. The right of a defendant to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether that person poses an unacceptable risk (Lynn at [44], [128], [148]), although the intrusion on a defendant's liberty and privacy are matters which the Court may take into account in determining whether to make an ESO in the exercise of discretion.
4. Section 5D of the Act provides that for the purposes of s 5B(d), the Court is not required to determine that the risk of a defendant committing a serious offence is more likely than not to occur in order to determine that there is an unacceptable risk. The standard of proof against which the assessment of risk is to be assessed (expressed as a "high degree of probability") has been held to be a standard which is higher than the civil standard but lower than the criminal standard (see Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 per Bell J at [27]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].)
5. The "unacceptable risk" inquiry is not discretionary. It does, however, involve an evaluation of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805.
6. Section 5B(d) of the Act also requires the Court to identify the nature of the risk posed by the defendant. That determination is important since when the Court is called upon under s 11 of the Act to impose conditions as part of any supervision order, it must determine whether the proposed conditions are "appropriate" to meet the risk posed by the defendant.

The evidence

1. In addition to the evidence relied upon by the State for the making of the interim orders (as set out in [15] of the preliminary judgment), the State relied upon the following additional evidence in seeking an ESO: 1. Report of Dr Marcelo Rodriguez, Psychologist, of 10 March 2019; 2. Report of Dr Jeremy O'Dea, Psychiatrist, of 26 March 2019; 3. Affidavit of Melinda Listing, Solicitor, of 21 March 2019; 4. Affidavit of Fiona Savage, Community Corrections Officer, ESO Team, Corrective Services NSW of 22 March 2019; and 5. Affidavit of Annette Caffery, Manager of ESO Team, Corrective Services NSW, of 26 March 2019.
2. Dr Rodriguez and Ms Savage were required to attend for cross-examination at the final hearing on 27 March 2019.
3. At the final hearing, the defendant tendered the following additional material: 1. Affidavit of Catriona Cotton, Solicitor, of 26 March 2019 to which a number of documents were attached; and 2. Report of Julie Dombrowski, Psychologist, of 25 March 2019.

The defendant's background circumstances

1. At [22]-[27] of the preliminary judgment I detailed the defendant's personal circumstances and at [28]-[32] his criminal history, including a pattern of offending behaviour revealed by that history and the views of sentencing courts and other relevant information concerning it (see ss 9(3)(h), (h1) and (i)). At [33]-[35] of the preliminary judgment the index offence was described in detail. That information does not need to be repeated for the purposes of this judgment. It is the subject of comment and emphasis in the expert reports of Dr Rodriguez and Dr O'Dea which I discuss at length below.
2. In the preliminary judgment at [38] I did note that after the defendant's release to parole for the index offence he was arrested and charged with various offences of physical violence (by intentional choking with recklessness) together with stalking, intimidation and a further count of common assault allegedly committed in the context of an domestic violence event. It was this offending that resulted in his parole being revoked in February 2018. I also noted that those charges were subsequently withdrawn because the alleged victim (now the current partner of the defendant) was apparently unwilling to give evidence. Consistently with Ms Graham's submission in the preliminary hearing, the Court was invited to place no weight on the allegations of violence constituted by the February charges for the purposes of determining whether an ESO should be made. I was not prepared to take that approach at the preliminary hearing, being satisfied that they were relevant to the issues raised in that hearing under s 9(3)(i) (see State of New South Wales v Conway [2011] NSWSC 976 and State of New South Wales v Veeran [2015] NSWSC 75). I am also unprepared, and for the same reason, to disregard them on the question whether an ESO should be made.
3. Without descending into the detail of the facts that supported the laying of the charges in February 2018, it is significant to note that at that time the defendant and his now current partner were in a relatively new relationship which had descended from verbal abuse to physical abuse over a period of weeks after both the defendant and his partner had been drinking. Verbal threats of various kinds were made on a sustained basis after the alleged physical assault, and the following day when the defendant attended his partner's sister's home. Ongoing communication by text and letter also involved threats of violence. This cycle of abuse was considered by police as serious, particularly in circumstances where the defendant was on parole for the index offence (also committed against a female partner) and after having been released from custody only four months earlier.
4. Although the defendant was subsequently released to parole on 22 May 2018 (after the February 2018 charges were withdrawn) that grant of parole was also revoked after a parole report dated 3 August 2018 cited the defendant's failure to comply with his parole order conditions and his disengagement with Community Corrections. The warrant for his arrest (for breach of parole) was executed on 4 September 2018. He was again released to parole on 2 October 2018 after suitable post-release accommodation had been secured and appropriate arrangements made for his reintegration into the community under supervision.
5. On 4 October 2018, the defendant reported for supervision with what was documented at that time as a sound level of understanding of his obligations under the grant of parole. The plans for his supervision included engaging in drug and alcohol treatment and completing the EQUIPS Domestic Abuse program. He reported a willingness and desire to complete that program in order to address how to deal with what was described in the Corrective Services case note report as "high risk situations". It was reported that whilst the defendant appeared to minimise his history of threatening violence in a domestic context, he nevertheless acknowledged that his behaviour was not a healthy response to domestic conflict and that he needed to develop his skills to deflect the triggers to that behaviour. It was on that basis, it would seem, that Community Corrections considered that the defendant's management as a parolee did not call for electronic monitoring.
6. It would appear that in making that decision the Parole Authority was unaware that on 2 September 2018 (two days before his arrest and return to custody after his parole was revoked in August 2018) further allegations of violence were reported to a FACS worker by a person who I am satisfied is his current partner. Those allegations, which underpinned an application by police for a ADVO but which were not the subject of charges (again by reason of the defendant's partner's refusal to co-operate with police by providing a statement), are as follows: 1. The defendant was with his partner at her home when an argument erupted; 2. The defendant threw her against a wall causing her head to make contact with the wall under force, after which he punched her in the nose and mouth causing bleeding; 3. The defendant slapped her across the face and threw a plate at her, threatening to kill her if she called police; 4. The defendant then attempted to ignite her by spraying a can of air freshener in her direction and placing a lighter in the vapour; 5. The defendant threw lit cigarettes in her direction.
7. His partner left the premises (her home) and did not return for a few days. Her complaint was corroborated with the case worker who reported having observed injuries to her face and head inclusive of a swollen nose and cut lip.
8. On 12 November 2018 the defendant's partner sought to have the ADVO varied or revoked as a result of her stated wish to maintain her relationship with the defendant with their marriage pending. As at the date of the publication of the preliminary judgment that application was listed for further mention in the Local Court. The matter was ultimately listed for hearing on 5 April 2019 on which occasion the ADVO was varied by deletion of a condition prohibiting the defendant from entering or going within 200 metres of his partner's residence. The balance of the statutory conditions were not varied. The ADVO remains in force until 19 December 2019.

Risk assessment

1. Mr Ardasinski, a senior forensic psychologist, prepared a Risk Assessment Report dated 14 June 2018 which was supported by the acting chief psychologist, Ms Cieplucha. The views of both psychologists were the subject of detailed consideration at the preliminary hearing. The weight I gave to their assessment that the defendant's risk of further serious offending in the context of intimate partner violence was high was significant in the decision to impose the ISO, in particular where I was satisfied that the violence inherent in both the February 2018 and September 2018 incidents involved the defendant's partner.
2. The defendant has since been the subject of further assessment by court appointed experts. They have independently arrived at the same conclusion as that reached by Mr Ardasinski and Ms Cieplucha.

The appointments with the court appointed experts

1. The defendant was scheduled to see Dr Jeremy O'Dea, psychiatrist, at 4:00pm on 7 January 2019, and Dr Emma Collins, psychologist, at 10:00am on 1 February 2019 after being notified of these appointments on 3 January 2019.
2. The defendant attended the appointment with Dr O'Dea on 7 January 2019 but did not attend a follow-up appointment on 14 January 2019. He also missed other appointments with Dr O'Dea scheduled for 1 February 2019, 11 February and 20 March 2019.
3. The defendant failed to attend a scheduled appointment with Dr Collins on 1 February 2019. Ms Fiona Savage (the defendant's Departmental Supervising Officer ("DSO")) made several attempts to contact him by telephone and text messages to his mobile phone and also to his grandmother's mobile phone. When she eventually made contact, the defendant told her that he missed the appointment because he had slept in. Subsequently, after consultations with the defendant's solicitors, arrangements were made for Dr Marcelo Rodriguez, psychologist, to examine the defendant and prepare a report.

The report of Dr Rodriguez

1. Dr Rodriguez prepared a report dated 10 March 2019 following a two-hour consultation with the defendant conducted via AVL on 6 March 2019.
2. The report contains a detailed account of the defendant's family history and personal circumstances, including his criminal history, as verified by a body of material furnished to Dr Rodriguez for the purpose of preparing the report.
3. Dr Rodriguez was satisfied that the defendant's reported history of substance abuse from the age of 13, including persistent periods of heavy use of alcohol, cannabis and "ice", meets the Diagnostic and Statistical Manual of Mental Disorders (American-Psychiatric-Association, 2013) ("DSM-5") criteria for a Substance Use Disorder. He was also satisfied that the defendant's reported history of severe child abuse, truanting, a lack of application at school, and engagements with the criminal justice system as a juvenile into early adulthood meets the DSM-5 criteria for an Antisocial Personality Disorder.
4. In Dr Rodriguez's opinion, the defendant's history of substance abuse, combined with his impulsivity, suggest the presence of deficits in his executive function (a cognitive process responsible for judgment, emotional regulation, inhibition, and decision-making), consistent with the characteristics of an individual diagnosed with a personality disorder.
5. In Dr Rodriguez's opinion, although the defendant understands the seriousness of his violent offending (albeit with variable levels of insight), he manifests "limited understanding for the perpetration of violence" which is reflected in an attitude which seeks to minimise his responsibility for the infliction of harm with little awareness of his behaviour when under the influence of substances.
6. Dr Rodriguez observed that current risk assessment techniques in behavioural science are not an absolute predictor of whether an individual will in fact reoffend; however, it is possible to identify empirically derived risk factors associated with the risk of reoffending. In the defendant's case they are reported as follows: Mr Davison has a long history of problems with violence, other antisocial behaviour, relationships, employment, substance use, personality disorder, a history of traumatic experiences, a history of violent attitudes, and problems with supervision response (i.e., breach of parole, revocation of his Interim Order due to his relapse into substance use, failing to appear in court, not reporting, breach of AVO, failing to attend stipulated drug and alcohol services when directed, being in possession of contraband in prison settings and therapeutic settings). His current clinical presentation indicates risk factors related to limited insight into his offending behaviour and minimization of his risk for violence, ongoing substance use issues, symptoms of mood dysregulation (with only an improvement in a secure environment), and ongoing mild instability due to personality vulnerability as a result of a personality disorder. Mr Davison presents with a number of risk factors that may perpetuate his risk of re-offending. These include: potential problems with professional services and plans; future problems with personal support (many individuals of his social support have unstable criminogenic lives, therefore, they are unlikely to be positive supports); potential problems with treatment or supervised response (he has a history of non-compliance with authority, which could potentially resurface; and he has previously sabotaged previous attempts by care providers); and he faces future problems with stress or coping (he presents as a high risk for relapse into substance use).
7. Dr Rodriguez also addressed the defendant's likelihood of committing intimate or partner domestic violence. Dr Rodriguez identified a number of risk factors from the Spousal Assault Risk Assessment Guide, Kropp and Hart, 3rd ed, 2015 (including jealousy; fear of separation and anxiety with relationships; impaired judgment as a result of serious substance use; impaired cognition leading to dangerous decision making; lack of insight into the seriousness of his offences and the impact on the victim).
8. He concluded that the defendant presents a high level risk of committing intimate partner violence and a high risk of violent offending generally.
9. Dr Rodriguez concluded that the defendant requires residential drug and alcohol treatment of between one and twelve months to address the seriousness of his substance use disorder and his risk of relapse into drug use. In Dr Rodriguez's view, the defendant has limited insight into the seriousness of his substance dependence and has limited, if any, internal mechanisms to abstain from drug use, which increases the risk of violent reoffending.
10. Dr Rodriguez also considered that the defendant will require a Drug and Alcohol specialist (either a psychiatrist or a physician) to prescribe anti-craving medication; treatment by a psychiatrist for his serious mood dysregulation (that is, complex and longstanding depression and anxiety); ongoing targeted forensic psychological treatment to address his offending behaviour and provide relapse prevention; specific psychotherapy to target intimate partner violence and ways to deal with mood dysregulation; assistance with vocational guidance and support from a job network service.
11. The report also addressed issues of supervision and monitoring. Dr Rodriguez concluded that the defendant needs stable accommodation where he is subject to close monitoring and supervision and that he should also be confined by a curfew and required to provide a schedule of his movements. He stressed that, from the information available to him, the defendant's accommodation with his great-grandmother and grandparents is unsuitable in his current circumstances due to the increased likelihood of substance use and engagement with criminal behaviour. In Dr Rodriguez's view, accommodation with the defendant's family was not a protective factor.
12. In Dr Rodriguez's opinion, the defendant must also abstain from the use or abuse of substances and that he is unlikely to be able to cope with consuming even small quantities of alcohol due to its disinhibiting effects. Dr Rodriguez considered that a two year monitoring and supervision period is necessary if the defendant, as a chronic drug user, is to successfully complete a long term drug program without relapse or reoffending.

Dr Rodriguez's evidence in cross-examination

1. In cross-examination at the final hearing, Dr Rodriguez confirmed his opinion that it was critical that the defendant address his drug use, that being a "very important risk factor" to his risk of committing a further serious offence of violence. Dr Rodriguez also acknowledged the self-evident proposition that achieving consistent abstinence does not occur overnight, and that feelings of stress or "not coping" are likely to result in an increased risk of relapse. However, he maintained his opinion that given the severity of the defendant's substance abuse, long-term residential rehabilitation was the optimum environment for the defendant to achieve the goal of total abstinence. Dr Rodriguez emphasised what he described as "fast tracking [the defendant's] entry into drug rehabilitation" given, as he correctly observed, the level of supervision in the community under the existing terms of the ISO was manifestly not working. Dr Rodriguez also considered that any therapeutic interventions designed to address and promote the defendant's arrested maturity and adult development must align with addressing his substance use and/or commitment to drug rehabilitation.
2. When he was cross-examined to the effect that excessive supervision could be productive of avoidant behaviour, Dr Rodriguez observed: … Mr Davison has to develop some self‑reflection and insight into substance use and the fact that he is being supervised and that he, for all terms, that he's got to play ball. It is ideal if that relationship between the people that are supervising him itself is a good one, respectful one, and within time develops, trust is developed. … It's not an exact science, you can't give somebody a pill and suddenly they'll be adherent and of good conduct and not relapse into substance use, not reoffend, be of good character. There's simply nothing like that. All we hope is with time that they will self‑reflect and develop insight as to their risk factors. In this case it's obvious that it's substance use that leads to negative emotionality, you know, depression, anxiety, for example, vulnerability, and the person chooses to take that track of using substances to ameliorate those negative feelings that they have.

The report of Dr O'Dea

1. Dr Jeremy O'Dea, a consultant forensic psychiatrist, prepared a report dated 26 March 2019. In preparation of the report, Dr O'Dea met with the defendant for approximately two hours on 7 January 2019. The defendant did not attend subsequent interviews.
2. Dr O'Dea observed that the defendant displayed: … a somewhat blasé, superficial and glib demeanour with limited remorse, contrition, insight or judgment in relation to his offending behaviour. He was not fully co-operative with the interview, as he was significantly distracted by texting his partner on his mobile telephone and answering her calls regarding her whereabouts and directions, and excusing himself from the room to attend to this matter. However, overall, he was able to display an adequate range of emotions. No undue anxiety or agitation were evident at interview. No psychosis was evident at interview. He appeared of adequate intelligence.
3. Consistently with Dr Rodriguez, Dr O'Dea diagnosed the defendant with a Substance Use Disorder and a Personality Disorder. Dr O'Dea stated that the former disorder is, usually, an enduring condition carrying a significant risk of relapse and requiring a strong commitment by the patient in a long term supervised treatment program (with the addition of anti-craving medication, should abstinence prove to be too difficult). In contrast, a person with a personality disorder has only a limited amenability to treatment with little prospect of a fundamental change in behaviour. In Dr O'Dea's opinion, however, personality disorders are often considered modifiable, particularly with external supportive controls such as those proposed by the State under the ESO.
4. Given the identified association between substance abuse and offending behaviours, both in general and as reflected in the defendant's criminal history, Dr O'Dea was of the opinion that the defendant's total abstinence from alcohol and drugs is necessary in order to minimise the risk of further reoffending. He went on to say: However, I note the reported problems Mr Davison has had in complying with conditions of parole and the ISO to date; and consider that, if these problems were to continue, it may prove difficult to strike a balance between enforcing conditions that would adequately and appropriately manage Mr Davison's risks in the community, and setting up realistic and effective conditions that Mr Davison would comply with, and public safety considerations.
5. Dr O'Dea also recommended that in order to achieve the crucial goal of abstinence from abuse of alcohol and illicit drug use, the defendant should engage in an ongoing community based specialised and supervised alcohol and other drug counselling and rehabilitation program. In addition, Dr O'Dea recommended that the defendant engage with psychological and social welfare services in order to assist him manage his anger, aggression and violence issues in intimate relationships. He also noted as follows: If abstinence from alcohol use were to prove difficult for Mr Davison, as can often be the case for patients with Alcohol Use Disorder, then consideration should be given, as part of his overall alcohol and other drug program, to the judicious use of available and appropriate medication to assist him in controlling any cravings for alcohol, (for example with prescription of so called anti-craving medications, Naltrexone, Revia®, or Acamprosate Calcium, Campral®). Dependent on the effectiveness of these measures, if they were to be put in place, in the context of structured supervision and monitoring of his abstinence in the community in the longer term, the additional use of deterrent and aversive medication (Antabuse®, Disulfiram, a medication that results in acute sensitivity to alcohol), prescribed with Mr Davison's informed consent and co-operation, could be considered as an additional mechanism to assist him to remain abstinent from alcohol use. Whilst there are no specific medications effective in assisting patients to remain abstinent from cannabis or amphetamines, successful ongoing abstinence from alcohol (and other illicit substance use), may prove helpful in assisting Mr Davison to remain abstinent from cannabis and amphetamine use. In conjunction with this medical management of his Substance Use Disorder, focus should also be placed on Mr Davison better managing his relationships, in particular his intimate and domestic relationships, and better manage his anger, aggression and violence in these relationships. Additional focus should be on supporting Mr Davison in promoting prosocial thinking and activities, including employment and past times. Mr Davison should also be given the opportunity to address traumatic issues from his childhood. These psychological and social issues could be addressed by Mr Davison engaging with psychological and social welfare services, with these services taking a socio-cultural perspective.
6. Dr O'Dea considered that the successful implementation of the proposed treatment programs with conditions such as those described in the "Schedule of Conditions of Supervision" as set out in the Summons filed on 25 September 2018 is likely to adequately and appropriately manage the defendant's risk of reoffending. Were the above treatment programs not successfully implemented, he concluded that there is a high degree of probability that the defendant would pose a significant risk of violent reoffending.

Ms Savage's affidavit

1. Ms Savage has been the defendant's DSO since 9 January 2019. She regarded the conditions to which the defendant has been subject under the ISO as appropriate to manage him in the community under an ESO. In support of this, Ms Savage lists a number of episodes additional to those to which I have already referred: 1. The defendant failed to attend EQUIPS program sessions on multiple occasions (5 and 7 February 2019; 20 March 2019); 2. The defendant was stopped by Police on 1 February 2019 near a known drug location in Maroubra while in the company of his partner and another person with previous convictions related to illicit substance abuse and domestic violence (a consorting warning was issued); 3. Ms Savage conducted a visit at the defendant's approved address on 6 February 2019, and in the room that the defendant's grandmother indicated to be his, Ms Savage could find only items that appeared to belong to a woman (such as clothing and makeup) and education certificates in a name other than the defendant's. Prior to that home visit, several unsuccessful contact attempts were made via phone with the defendant in order to ensure his attendance; 4. On 21 March 2019 Ms Savage advised the defendant that she would be conducting a home visit and was five minutes away. Shortly after, the defendant advised her via text that he was visiting a friend in Redfern and thought that his appointment was scheduled for the next day in Blacktown; subsequent attempts by Ms Savage to contact the defendant via phone were unsuccessful. The next day, despite various attempts made to reach the defendant via phone to remind him of the appointment, as at 2pm he had not attended the meeting scheduled for 12pm.
2. In consideration of the above, Ms Savage was of the view that if the defendant is directed to continue to live at his grandparents' house, it would be difficult to confirm his movements throughout the day. Ms Savage also expressed the opinion that electronic monitoring would be an appropriate condition of the ESO since it could provide her with a means of locating the defendant in order to speak to him in person, given he has proven to be difficult to contact via phone.

Ms Savage's evidence in cross-examination

1. Ms Savage gave evidence under cross-examination of the steps she had taken to identify a suitable residential rehabilitation program for the defendant and, in the interim, a placement in transitional housing at Glebe House which is supported by resources from Corrective Services. She also confirmed she supported the defendant's suggestion of a placement at Wayback, a rehabilitation centre with which he was familiar, although not a centre with whom Corrective Services had a formal relationship. Ms Savage encouraged him to apply to both. She emphasised, however, that across the sector 30 days of abstinence is required before a person is eligible for admission into residential-based drug rehabilitation programs.
2. Ms Savage also gave evidence of the protocols that apply where a positive drug test is returned by a person under an ISO or ESO, namely that whilst there is what she described as an "open forum discussion" between police and the DSO as to whether a person who returns a positive test should be prosecuted for breach, the ultimate decision rests with police.
3. There was seemingly some implicit criticism of Ms Savage in Ms Graham's questioning of her understanding of what a "culturally appropriate approach" to the defendant's supervision comprehended, which I considered, in all the circumstances, to be misguided. As Ms Savage emphasised, her intention in deploying a culturally sensitive approach to supervision (which, incidentally, she correctly regarded as the need to take into consideration extended family and the need to have links to the area in which the defendant lives) seemed to be productive of positive outcomes in her face-to-face contact with the defendant when supervision commenced on 9 January 2019, but that progress was thereafter undermined by the defendant himself not engaging with her, by either not responding to phone calls or disengaging in other ways, including by providing false or incomplete information about where he was living after his release in March 2019 after a month in custody.

Ms Dombrowski

1. Ms Julie Dombrowski, psychologist, prepared a report at the request of the defendant's solicitor dated 25 March 2019 following a two-hour consultation via AVL from custody.
2. Ms Dombrowski's report also contains a detailed account of the defendant's family history and personal circumstances. Ms Dombrowski observed that during the interview the defendant was polite, talkative, articulate and appeared eager to engage with the process.
3. Ms Dombrowski noted that the defendant is currently in a relationship with a woman he has been dating for 13 months and who has a young child. He denied being violent in the course of this relationship, and attributed his violent behaviour (in the course of his only other significant relationship and in general) to a heavy use of methamphetamines and to alcohol intoxication.
4. The defendant told Ms Dombrowski that he finds life easier in custody than in the community as his primary needs, which he struggles to find in the community, are readily satisfied and he has regular contact with extended members of his family who are also incarcerated. He expressed frustration at the ISO conditions which he considers too stringent, as they do not adequately allow for lapses in his efforts to remain drug abstinent. Further, the defendant said that although he is not to associate with certain individuals he cannot control whether these individuals would attend his grandmother's home (where he was residing).
5. Ms Dombrowski states that the defendant has begun to make some limited connections between his history of childhood trauma, his use of drugs and alcohol and his offending. She reported that he stated that his mother's death has enabled him to reflect on his life and to realise that he needs to make some significants shifts in his life to change his life course trajectory. He expressed a willingness to engage in further Alcohol and Other Drug ("AOD") and Domestic Abuse rehabilitation programs, although he doubted whether he needed the latter due to the fact that he has already completed AOD interventions and denied further intimate partner violence.
6. Ms Dombrowski observed that it is not clear whether the defendant's erratic behaviour is due to personality factors; neurological factors (that is, compromised neurological development due to prenatal exposure to substances); emotional/psychic factors; or the intoxicating effects of his substance use. She opined that further assessment is needed in order to inform his treatment and management needs.
7. Ms Dombrowski concluded her report with the following recommendations: On the available evidence, he requires culturally sensitive trauma assessment and treatment (which may also need to include medication), further AOD rehabilitation, and participation in a domestic violence prevention program (such as the DAP or similar). He will require a high level of professional support (i.e. weekly to fortnightly to monthly) over several years to be effective to counterbalance his lifetime of social disadvantage, neglect, and abuse. He continues to exhibit some ambivalence regarding his use of drugs and alcohol, as well as violence in his intimate relationships. This ambivalence will need to be resolved before he will be able to authentically engage with any treatment program. A pre-treatment program of motivational interviewing is recommended to help him overcome his ambivalence and prepare him for action and commitment to treatment. Needless to say, his substance use must be managed to reduce his risk of violence (both inside and outside his intimate/sexual relationships). Psychosocial factors such as education and/or vocational training, employment, accommodation, hobbies/social activities, and peers/role models will also need to be addressed to support his rehabilitation. With regard to the specific question of what strategies could be implemented to combat counterproductive aspects of supervision and/or make supervision more culturally appropriate for Mr Davison, I would recommend he be supervised (wherever possible) by an Aboriginal Community Corrections Officer (CCO). The allocation of a male Aboriginal CCO will further assist through the provision of positive male modelling and cultural accountability. Due to his longstanding history of substance use and the widespread use of drugs and alcohol within his community, harm minimization and reduction may be a more realistic treatment target than total abstinence during the initial stages of his AOD rehabilitation. The ESO conditions will need to have clear provisions to enable AOD harm minimization as a treatment target It will be important that Mr Davison is fully aware of all the conditions of the ESO and the consequences of failing to meet these conditions. Mr Davison is on his way to developing an antisocial personality disorder and progressing along a life-long criminal trajectory. He is presently at a crossroad in his life and whether he follows a prosocial or antisocial pathway will depend on whether he is prepared to take stock of his life and work hard to build a future for himself or not. The intervention he receives now will be critically important in shaping his social trajectory into the future. His risk of reoffending can be much reduced if he receives the treatment that he needs and genuinely embraces these opportunities.

Mr Walters

1. Mr Craig Walters gave evidence in the defendant's case in elaboration of his letter of 28 October 2018, annexed to Ms Cotton's affidavit. He was qualified by Ms Graham to give evidence of the approach to engaging with drug users from his experience as a counsellor attached to the South West Area Health Service as part of the Drug Court. She relied upon his evidence in support of her ultimate submission that the public health approach to drug use and not a criminal approach should inform the conditions which might be imposed on the defendant were the Court satisfied an ESO should be made, including an obligation that the defendant submit to drug testing but without the imposition of an abstinence condition. As Ms Graham put it, if a positive drug test is returned under that model, instead of that resulting in a referral to police it should highlight to a DSO a degree of vulnerability in the person under supervision and the need for more effort to be put into making other resources available to assist that person to address their drug use.
2. Mr Walters gave the following evidence in respect of users who might lapse into using illicit drugs whilst on the Drug Court program: Well, in the initial phases, as I have said, it is very difficult to not have one‑off lapses because very much, I suppose, the public health approach to ceasing drug use is that people learn by their lapses. They learn to stop by actually having a closer look at how they could approach, with a study guide with a counsellor, how they could do things differently, like all change occurs, to examine the kind of baby steps, the automatic thinking that people use when they are approaching‑‑
3. He went on to give evidence that lapses are invariably the subject of self-report in the course of therapy and in the process of encouraging the user to gain insight into how to manage a risk or a craving or a perceived need to use drugs. He did say, however, that on repeated lapses into drug use (whether self-disclosed or revealed on urinalysis) sanctions are imposed, inclusive of the risk of penal sanctions. He gave the following evidence: A. They get that message. After a while, they realise it is better for them because they can talk openly about the fact they have had a lapse; let's have a talk about it, what could you use to disclose it to everyone involved in the Drug Court team, the judge, the probation and parole officer, the counsellor, so everyone knows an everyone can start to work with that. So nothing is really hidden if they are working with their supports to facilitate change. Q. They know what to expect because the structured program is explained to them at the outset, so they can, not only be told at the beginning, but, also, learn through their own experience, if they are open about things and if they trust their workers, then it is going to be better for them, rather than trying to hide; is that right? A. That's right; it doesn't always happen instantly. It takes some, you know, moulding and some, I suppose, observation through them and some people are quicker than others to take it up. That is the approach? Q. Is part of the approach one that involves making sure that the clients know that if they have a one‑off lapse, or even two lapses, they are not immediately going to be faced with being locked up again? A. It is, indeed, yeah. HER HONOUR Q. You have no obligation, or those counsellors have no obligation to refer reported lapses, or revealed lapse to the police for attention because‑‑ A. No. Q. ‑‑because the work done by the Drug Court is to take a public health approach, as you have said, and under the structure and work done by that part of the institutional approach to criminal justice, that the non‑involvement of police is kind of optimum to outcome; isn't it? A. Absolutely.
4. Mr Walters is also currently associated with the Weave Youth and Community Services at Waterloo and in that connection has had direct contact with the defendant. He described dealings with the defendant as follows: I have caught up with [the defendant] three times. He seems to be making all the right ‑ he seems to have the right attitude. On assessment, he seems to be saying the right things, engaging in change talk. On the 14th, as well as offering the prospect of going to rehab to help him remain abstinent, he also brought up with me the fact he had never, in fact, undergone a psychiatric assessment. He admitted that he had been through a lot of trauma in his life, but he had never been assessed with the prospect of maybe starting some treatment and he wondered if going on some pharmacotherapy for any mental health issues he may have, may help him maintain stability. So, again, I thought that was pretty forward thinking of him and trying to look for alternatives and ask about things that may help.
5. In dealing with the defendant's admitted drug use in January 2019 he said: We discussed the lapse and, you know, like, probably the decision leading up to the lapse and how he could have done things differently and he was concerned that he was sort of, you know, perhaps sabotaging himself. He could see it and he said he knows how not to do that. "I just have to keep, particularly, in the initial part of recovery, I have to keep away from people", because one thing leads to another as, inevitably, that happens when you are in company with other people who do use drugs. So I think, on the subsequent time we did meet, he confirmed that he was, basically, being in the company of his partner and his family and avoiding associates.
6. In the result, and in addressing in particular the Speak Out Dual Diagnosis Program (a program focusing on young people aged between 12 and 28 who are experiencing coexisting mental health and drug and alcohol issues), Mr Walters said: I would consider, I would recommend, I would think, weekly counselling, with a focus on relapse prevention, weekly AOD counselling and, also, case work support, looking at some of the related issues. So getting stable housing. I can also assist [the defendant] if he wants to facilitate and find out conditions and assist him to perhaps enter rehab if he wants to do that. Sometimes going into rehab takes a little bit of time because there are waiting lists. Sometimes you can't get around that too much. So maybe finding interim accommodation, as was suggested by [Ms Savage] earlier, that may be a possibility.
7. Mr Walters was also familiar with the Wayback community-based program and the program administered from The Glen Centre on the Central Coast as being services which recognise that aboriginal clients need contact with their family during their time of treatment.

Counsel's submissions

1. Ms Graham submitted that the evidence relied upon by the State would not satisfy the Court, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision, and that the Summons should be dismissed for that reason.
2. Mr El-Hage submitted to the contrary. In his submission, there is a unanimity of expert evidence that the defendant presents a high risk of engaging in further violent offending given his chronic drug use and largely unaddressed drug dependence, that alone is sufficient to satisfy the Court, to a high degree of probability, that he poses an unacceptable risk of committing a further serious violence offence if he is not supervised in accordance with the conditions for his supervision as proposed by the State.
3. Although in the submissions filed on 23 April 2019 (that is, after oral submissions at the final hearing on 10 April 2019 and after the defendant had committed a further breach of the ISO the following day) Ms Graham did not abandon her primary submission that the Summons should be dismissed, she focused her attention on the conditions the State submitted should be imposed under any ESO the Court was satisfied should be made, by suggesting the deletion of a number of conditions, including a condition that the defendant be abstinent from the use of drugs or alcohol and any obligation to submit to electronic monitoring or the provision of a schedule of movements. She also proposed a substantial redrafting of other conditions sought by the State.
4. In Ms Graham's submission, two particular conditions of supervision (abstinence and monitoring), amongst others proposed by the State, are not appropriately directed to the unacceptable risk that the defendant will commit a further serious violence offence if not supervised, the touchstone in s 11 of the Act for the imposition of conditions. She advanced that submission despite the defendant's risk of relevant reoffending having been assessed by the court appointed experts as high, particularly in the context of his history of drug and alcohol use and his history of interpersonal intimate relationship violence when drug affected, a history which, contrary to the position urged upon me by Ms Graham, I have found is not limited to his commission of the index offence in 2015, but includes violence inflicted on his partner on two separate occasions after his release to parole on 9 September 2017, being in February 2018 and September 2018. It is concerning that the defendant denied these episodes in his consultation with Ms Dombrowski.
5. Ms Graham also submitted that many of the conditions sought by the State are what she described as largely "mechanical and formulaic". As I understand the submission, it proceeds on the assumption that the State seeks the same panoply of conditions as it seeks to have imposed on this defendant as a matter of form or formula in all of the applications it brings under the Act, irrespective of the individual defendant the subject of the application and irrespective of the consequences that may flow to that person from the imposition of standardised conditions. Ms Graham submitted that such an approach fails to reflect the principles of individualised justice and equality before the law and that the Court should ensure against that outcome on this application by imposing conditions that are appropriate to the defendant and his personal circumstances. In that regard, she emphasised the defendant's socially disadvantaged background and social marginalisation; his history of trauma; his negative experiences of authority figures and agencies of the State and his limited future economic opportunities. She also submitted that the extremely invasive powers by which the State seeks to control the defendant's liberty do not align with the provision of resources to ameliorate, in any practical way, the particular disadvantage the defendant faces by reason of his vulnerability, the complexity of socio/cultural and economic factors affecting his current social functioning and his stated concerns at being overwhelmed by the prospect of ongoing supervision, including being in constant fear of being in breach of supervision orders and returned custody.
6. Ms Graham further submitted that the Court would find that the evidence reveals a disparity between the resources available to be deployed by the ESO supervision team and the particular needs of the defendant as the subject of that supervision (in large part although not exclusively as a result of his aboriginality), and that to ensure that he is not subject to a supervision order that falls more harshly on him than it would on other putative defendants under the Act, such conditions as the Court is minded to impose under an ESO should not be unjustifiably intrusive on his liberty. She submitted that the content of the conditions which the defendant might be subject under an ESO should give significant weight to encouraging him to undertake rehabilitation, without entrenching his already established negative attitude and experiences of various agencies, or undermining the need for him to build rapport with his DSO over the course of the supervision order.
7. Mr El-Hage addressed the question of the conditions that should be imposed under any ESO order the Court was minded to impose by reference to the evidence adduced on this application, again emphasising the combined weight of the evidence from the court appointed experts, and from other sources, including the evidence tendered by the defendant, to the net effect that without the form and content of supervision of the kind administered and monitored by the ESO team, a regime that is described in detail in the evidence, the risk against which the Act is intended to protect will not be adequately addressed.

Determination

1. The dispute between the parties as to whether an ESO should be made and, if so, the form and content of conditions to which the defendant will be subject, must be resolved on the available evidence and not by reference to unproved assumptions about the State's approach to its statutory obligations under the Act, or the adequacy or otherwise of the resources committed by the Executive to ensure the orders made pursuant to the Court's jurisdiction are appropriately administered. In this case, that evidence includes, necessarily, the defendant's, at best, patchy response and, at worst, open defiance or disregard of what I am satisfied have been concerted efforts by a range of agencies, including most recently Ms Savage, his departmental supervising officer under the ISO and Mr Walters to assist him, with an appropriate and culturally sensitive approach, to address his substance use, including assisting him to achieve a sufficiently sustained term of abstinence to qualify him for admission into a long-term drug rehabilitation facility. Although it does, on occasion, fall to the Court when dealing with applications brought by the State under the Act, to scrutinise policies, practices and protocols of the State, on the evidence before me, this case is not one of them.
2. In that connection I note that on 27 March 2019, and after Court had heard evidence from Dr Rodriguez, Mr Walters and from Ms Savage, each of whom, with differing emphasis, directed their attention to the defendant's immediate housing needs in an appropriate medium to long-term residential rehabilitation centre, and the need for him to maintain contact with his supervising team as those enquiries progressed, it was the joint application of the parties, and with my encouragement, that final submissions be heard on an adjourned date to allow for those enquiries to be made. Mr El-Hage did not seek at that time to be heard against the proposition that the defendant's reception into a residential drug and alcohol rehabilitation program was optimum to providing him with a daily structure and with protection from the risks of a relapse into sustained drug use with the associated risk of him being returned to custody.
3. I anticipated that the outcome of those enquiries would also provide both parties with a focus for final submissions, including whether there was a need for electronic monitoring and the provision of a schedule of movements since, in the event that a medium to long-term placement could be secured some reasonable time in the future, those conditions might be able to be relaxed. The outcome of the enquiries was obviously dependent on the defendant's ability and willingness to comply with admission criteria to a residential drug and alcohol rehabilitation program and, in particular, that he be drug-free on admission.
4. With that in mind, I extended the conditions that I had imposed on an interim basis in December 2018 over the course of the adjournment to allow those enquiries to be made and with a view to the defendant demonstrating his commitment to addressing his ongoing drug use. The defendant was present during the course of that hearing. On occasions I spoke to him directly, observing that the considerable latitude I had allowed for in the imposition of the ISO had not proved to be as productive as it might have been, but that I was nonetheless prepared to extend him the same latitude over the adjournment.
5. I then said: That is not [intended] to be too harsh in my judgment of him, and I'm not intending to sound that way. It is largely, it would seem to me, having regard to all of the information I have now from the Court appointed experts and the psychologist, that his transition into the community under supervision has been difficult, in large part it would seem to me, by the intersection of two scenarios: (1) instability on the home front, and I'm not critical of his family circumstances, they are people who have, I'm sure, the best will in the world but not necessarily the best resources in the world to accommodate him and provide that sort of stability on the home front that would give him the confidence and structure in staying drug free, and then (2) the intersecting scenario is either, keeping company with the wrong people whomever they might be, or not having enough structure in his days to keep him forward focused. The Court … is not entirely ignorant of the pressures that that level of social vulnerability and emotional vulnerability give rise to, and the understandable but unacceptable ways that young people have of dealing with those stressors which is to take a substance or two that makes it all go away momentarily until it makes it worse. So I'm well and truly aware of that. What is very important, and I say it in Mr Davison's presence, is that that can't go on because if it goes on, all of the information before me gives me very grave reasons to fear that in a drug fuelled rage, he does something very dangerous to the community, [including] particular people close to him which will send him back inside, and then all of the work that his lawyers have done, the work that the Court is committed to doing and a whole range of people, not excluding you Mr El‑Hage, goes out the window.
6. At the resumed hearing on 10 April 2019, the parties advanced final submissions reflecting the fact that in the interim the defendant had been dealt with in the Local Court (as reflected in the chronology at [8]-[10] above) unaware that the very next day the defendant would again test positive for the use of drugs and that he would be subsequently charged, convicted and sentenced to imprisonment for the breach of the ISO that his drug use entailed.
7. Ms Graham accepted that there is an evidence-based connection between substance misuse or intoxication and a person's compromised ability to control emotions, including aggressive or physically violent outbursts. She also accepted that on the evidence in these proceedings the defendant's substance abuse is what she described as the "key risk trigger" to his reoffending. However, she maintained her submission that I would not be satisfied that the defendant's inability to remain abstinent from the use of drugs over the course of the ISO is a basis for a finding that there is a high degree of probability that he presents as an unacceptable risk of violent reoffending when drug affected. She submitted that despite his drug use over the past months and irrespective of what that may indicate about his capacity to abide by court imposed conditions that would follow from this breach of the ISO, there has been no repetition of any violent episodes.
8. Ms Graham also submitted that the Court would be satisfied that there are other constraints operating on the defendant at this time such that the absence of supervision under the Act, including the apprehended violence order which expires in December 2019 and a conditional release order ("CRO") imposed in November 2018 supervised by Community Corrections that does not expire until May 2020. It cannot be overlooked however that the defendant has demonstrated a tendency to ignore or disobey supervision orders under a succession of regimes under which those orders have been imposed, even accepting as I do that the CRO was not in place long enough and with sufficient continuity for him to have demonstrated a capacity to submit and cooperate with that form of supervision before he was the subject of the ISO I imposed in December 2018.
9. Unlike the approach taken in the preliminary hearing, a number of factual findings need to be made in the process of enquiring whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if he is not kept under supervision.
10. As I made clear in the course of hearing final submissions, in assessing the weight of the evidence of the court appointed experts that the defendant poses, in their assessment, a high risk of committing an offence of serious violence most likely in the context of interpersonal violence, I proposed to take into consideration not only the index offending upon which they placed significant reliance in formulating their opinions, but also the incidents of interpersonal violence in February 2018 and September 2018, following his release to parole for the index offence. I also propose to take into account the defendant's oscillating insight into this conduct and, as importantly, his oscillating insight into the precursors to violence, namely his use of drugs and alcohol.
11. That is not to say that the defendant has demonstrated a total lack of capacity or self-awareness. I accept that there have been occasions where he has apparently accepted full responsibility for his actions although principally, I note, in regard to the index offending. Insofar as the most recent incident of relationship based violence is concerned, namely the September 2018 incident, the defendant has exercised his right to make no concessions that he was violent at all on that occasion. While I accept the defendant's partner has apparently told the Local Court that the allegations were "not true", she did not give that evidence in these proceedings to that effect; nor did she proffer any explanation for making a false allegation to the FACS worker. Again, as I indicated in the course of proceedings, without any plausible explanation for the apparent inconsistency between what the FACS worker was told (as corroborated by what the worker saw of physical injuries) and what she later told the Local Court, I am satisfied, that the events she described to the FACS worker probably occurred, a finding which underpins the further finding, again on the probabilities, that there has been a repeat of the infliction of serious violence on two occasions after the defendant's release to parole for the index offence, both occurring in the context of a domestic or intimate partner violence, both in which drugs or alcohol or both were implicated and each of them against the same woman. I accept that since September 2018 there has been no repetition of violent offending of any kind. I also accept the two young people are in a mutually supportive relationship which gives every indication of enduring irrespective of whether the ESO is granted and, on one view, although not relevant to the determination of the State's application may be more likely to endure if the defendant's submission to supervision assists him in addressing his substance abuse issues which have been identified by the court appointed experts and in the evidence adduced by the defendant, as providing contextual triggers to his violent offending.
12. In accordance with the approach to which I have earlier referred, I am satisfied that an extended supervision order imposed under the Act, an order which is directed to the community's protection at large of which the defendant's partner is a member, is appropriately directed to what I am satisfied is an unacceptable risk of the defendant, in his current circumstances, committing another serious violence offence if not supervised.

The conditions of the ESO

1. Section 11 of the Act provides that an ESO or an ISO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". That section contains a non-exhaustive list of permissible conditions. In State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [24]-[25] Johnson J considered what is encompassed by the need for the Court to be satisfied of the appropriateness of conditions. His Honour said as follows: 24. If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an ESO and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127]. 25. Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effective with the interests of the defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149]. (See also State of New South Wales v Fernando [2016] NSWSC 1665 at [13]; State of New South Wales v Colquhoun [2018] NSWSC 1012 at [59]-[61]; State of New South Wales v Grooms (Final) [2019] NSWSC 353.)
2. The conditions of the ESO that I have determined should be imposed have taken into account Ms Graham's allied submission that a Court-imposed condition that the defendant not use prohibited drugs might also prove to be counter-productive to achieving the ultimate object in imposing an ESO (both his own personal advancement and the safety and protection of the community the latter of which predominate) given the real risk that the defendant will breach that condition (as he has done repeatedly since December 2018 and previously whilst subject to parole) with the associated risk that he will be re-incarcerated at a time when he should be encouraged to undertake rehabilitation (under supervision). With that in mind, I have imposed, where appropriate, conditions that provide the defendant with an opportunity to proffer a "reasonable excuse" for refusing a direction or failing to comply with a direction and requiring that "reasonable directions" be given.
3. Having regard to the competing written submissions of the parties as supplemented by their oral submissions, I am satisfied that the schedule of conditions annexed to this judgment will mitigate what I am satisfied is the unacceptable risk that the defendant will commit a further serious offence of violence if not supervised for a period of two years.

Orders:

1. I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be under supervision in the community for a period of 2 years commencing on 18 June 2019. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), during the period of his extended supervision the defendant is to comply with the conditions set out in the Schedule attached to these orders.

Schedule of Conditions (83.9 KB, pdf) Schedule of Conditions (90.1 KB, rtf) 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: 04 September 2019