State of New South Wales v Devaney

Supreme Court of NSW|2021-11-02|Before: Dhanji J

Judgment

By summons filed on 1 September 2021, the plaintiff seeks an order that the defendant be subject to an extended supervision order (ESO) for a period of five years pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). Various conditions are sought as part of that order.
Prior to any final order being made the plaintiff seeks interim orders. Those orders include the appointment of two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct examinations and provide reports on the defendant pursuant to s 7(4) of the Act and an order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order (ISO) for a period of 28 days commencing on 7 November 2021. Certain conditions are also proposed in relation to the ISO.
The defendant opposed the making of orders under s 7(4) and an ISO on the basis that the test for making such orders was not met in this case.

Legislative scheme

The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3].

The construction argument

At noted above, at the hearing of this matter a preliminary issue was raised as to the nature of the s 7(4) test. Mr Edwards contended on behalf of the defendant that descriptions of the test as "akin to the prima facie test" are inapt: cf Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983 at [6]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].
While the defendant accepted that I should proceed on the basis of an acceptance of the matters alleged in the supporting documentation, he made two submissions qualifying the approach. First, he contended that the Court could have regard to material outside the supporting documentation in applying the s 7(4) test, insofar as that material "casts light" on the supporting documentation. As I understand the submission, it was that I should proceed on the basis of the matters alleged in the supporting documentation properly understood in the light of any other material.
Secondly, he submitted that I would only make an order if, based on the matters alleged in the supporting documentation, I was positively satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". In this regard he submitted that an order would only be "justified" within s 7(4) if the test in s 5B(d) were satisfied. Essentially, as I understand the argument, it is that the test to be applied is the same as at the final hearing stage, with the exception that the test is applied to the matters alleged in the supporting documentation. In this regard he stressed the test was not the same as a "prima facie" test, noting that the test in s 7(4) uses "would" rather than "could".

The first issue - reliance on material outside the supporting material

To determine the relevance of material outside the supporting material it is necessary to say something first as to the test. As with all statutory tests, the starting point is the text itself.
It is uncontentious that, in applying the s 7(4) test the Court proceeds on the basis of an acceptance of "the matters alleged" in the supporting material. In State of New South Wales v Michael Lidster [2020] NSWSC 275, Rothman J (at [24]) observed that matters in this context refers to facts and to expert opinions but does not include conclusions. The defendant submitted that whilst I am limited to the matters alleged in the supporting documentation, cross-examination and other material has the capacity to "cast light" on what is alleged in that supporting documentation: cf Tillman at [98]; State of New South Wales v Sturgeon [2019] NSWSC 559 at [6]. To this end, the defendant tendered at the preliminary hearing an affidavit of the defendant together with a number of affidavits from persons with whom the defendant is in contact. He also cross-examined the author of the risk assessment report, Dr Richard Parker.
The plaintiff submitted that material put before the Court by the defendant should play no part in the application of the test in s 7(4). Counsel for the plaintiff relied on the reasons of Garling J in Sturgeon where his Honour said, at [13]: "… there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State's application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to. Nor is there any place to tender any contradictory material. These are matters reserved for determination at a final hearing."
Counsel for the plaintiff, however, accepted that if the test in s 7(4) is satisfied, such material may be considered in deciding whether to make an ISO pursuant to s 10A. That is, the plaintiff accepted that the Court could have regard to such material in exercising the discretion to make or decline to make an order: see Sturgeon at [7]. On the basis that the defendant's material is relevant to, at least, the exercise of the discretion, the plaintiff did not object to the tender of that material or the cross-examination of Dr Parker.
The issue is, in my view, resolved by what was said by the Court of Appeal in Tillman. In that case, the Court (Mason P, Tobias and Santow JJA) said (at [98]) in the context of a relevantly identical provision, that the task: "… is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation." (emphasis in original)
Their Honours, clearly, did not leave open the possibility that evidence called by a defendant might cast light on the supporting documentation. Rather, insofar as that expression was used, it was made clear that such evidence could not cast light on the supporting documentation, or at least what is alleged in that documentation. I am, consequently, required to consider only the matters alleged in the supporting documentation in applying the test in s 7(4) of the Act.

The second issue - "would, if proved, justify the making of an extended supervision order"

The test is not, in terms, a "a prima facie" test. (I do not understand any of the authorities to suggest that it is. Rather those authorities suggest it is "akin" to that test.) Certainly, to my mind, there are similarities. The defendant however stressed that the test requires that the matters alleged "would" rather than "could" justify the making of an order. He stressed that the making of an extended supervision order would not be justified unless I was "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". The question posed by s 7(4) is, however, whether the material would "justify" the making of an order, and not whether an order should actually be made. Thus, as has been made clear in the authorities, the Court at this stage is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties that appear in the documentation: Tillman at [98], as set out above; Sturgeon at [6] per Garling J. An order would, despite any such inconsistencies or conflicts, still be "justified" if the matters alleged in the supporting documentation are sufficient to establish the state of mind referred to in s 5B(d). Understood in this way there is no real difference between "would" and "could" in the context of s 7(4).
I turn then to the present matter.

Factual background

The following matters are derived from a summary of alleged matters provided by the plaintiff. The defendant, while not necessarily accepting the facts, accepted that the document was an accurate summary of the matters alleged in the supporting documentation.
The defendant is a 51 year old man. He grew up in New South Wales, the eldest of two siblings. His father was a police officer and an "authoritarian figure" in his life. The defendant began engaging in criminal behaviour in his late teens (after finishing school in year 11) when he began mixing with older peers, using illicit substances and engaging in antisocial activities in the Penrith area.
The defendant sought to apply for the NSW Police Force but was ineligible as he had not completed his secondary schooling. He worked various jobs, including as a labourer, personal trainer and security guard. He reported enjoying the position of authority that came with his security work. He sought to impress co-workers by getting into fights and assaulting patrons. Through this employment, he associated with antisocial peers involved in the Nomads Outlaw Motorcycle Gang (OMCG). He also competed at a high level in kickboxing, including representing Australia.
The defendant's criminal record began in 1995. In March and May 1995, the defendant committed two armed robberies at banks in the Blue Mountains area. On both occasions he was armed with a pistol and disguised. In October 1995 he was sentenced to 7 years imprisonment with a non-parole period of 3 years and 6 months. He was released to parole in November 1998. His parole was subsequently revoked and then restored in May and July 1999.
In September 2000 the defendant was seen driving 120km/h in a 60km/h zone. He fled from police and drove onto the wrong side of the road. He was found guilty of driving recklessly and negligent driving and sentenced to a 200-hour community service order and a licence disqualification.
In mid-2001, the defendant commenced a relationship with the victim of the Index Offence.
In 2002 he was found to be using a false driver's licence when stopped by police. In 2003 the defendant committed two offences of assault occasioning actual bodily harm and one offence of having custody of a knife (described as a 4-inch flick knife) in a public place.
In November 2003, an Apprehended Violence Order (AVO) was made in respect of the victim of the Index Offence. In the same month, the defendant called and messaged the victim in a threatening manner and, while she was driving, overtook her and braked suddenly, causing her to stop. He then followed her to the police station.
In August 2004 the defendant and the victim finally separated. The defendant then committed three offences of contravening an AVO or stalking/intimidating with intent to cause fear. He sent the victim threatening messages and contacted her family and friends demanding to see her. In September 2004 the defendant was sentenced to 9 months imprisonment, suspended on condition that he attend drug and alcohol counselling and complete a domestic violence course.
In early 2006 the defendant travelled to Egypt where he reported having a religious experience through which he gained "exclusive knowledge" that the CIA was conspiring to kill him. He then travelled to Thailand and engaged in training for kickboxing and the use of firearms. When the defendant was later sentenced for the Index Offence, Syme DCJ noted that he was "very proficient in the use of guns" due to this training.
In June 2006 the defendant was injured at work. He ceased working and later reported that his drug use "spiralled" after he stopped working. His parents also reported a notable deterioration in his mental state at that time.
In August 2007 the defendant assaulted a person employed to drive him to a medical appointment by punching the victim to the head and threatening to shoot him. In December 2007 he committed another common assault by attempting to kick and punch the victim's cousin. He attended court on 5 May 2008 to be sentenced for this offence but left prior to the conclusion of the proceedings. A warrant was issued for his arrest.
On 8 May 2008 the defendant committed the Index Offence (shoot with intent to murder) and three further offences of unauthorised possession of a firearm and unauthorised possession of a prohibited firearm (2 counts). He attended the Star City Casino (the victim's place of work) and obtained a gym access card. Before entering the lift, he gave a taxi driver $20 and asked the driver to wait for him. He then entered the gym and discharged a firearm three times. The victim was shot twice, in her abdomen and hip. A third bullet passed through a glass window. Bystanders were present at the time. The victim sustained life-threatening injuries and required urgent surgery as well as ongoing physical and psychological care. The defendant's backpack, subsequently found by police, contained 123 rounds of ammunition, a balaclava, a wig, two Star City access cards and a NSW Police Force badge. He attempted to flee wearing a fake moustache and beard but was apprehended by police. When arrested he had in his possession a knife, a police card and badge and three loaded firearms.
The defendant pleaded guilty and was sentenced, following a successful appeal, to 13 years imprisonment with a non-parole period of 9 years: Devaney v R [2012] NSWCCA 285. The material tendered in the proceedings on sentence included evidence from psychiatrists Dr Bruce Westmore, Dr Rosalie Wilcox and Dr Stephen Allnutt. All three experts agreed that the defendant was affected by psychosis caused by paranoid schizophrenia at the time of the offending. He reportedly became acutely unwell six months before the Index Offence, although it was noted that his psychosis did not prevent him from planning the offence. Drs Wilcox and Westmore considered that his capacity to control himself had been substantially impaired but that he had clearly been aware of the wrongness of his actions. Those two experts also opined that he was mentally stable at the time of sentencing but would require long-term psychiatric support.
In considering the appeal, Allsop P (Price J agreeing) made the following observations. His Honour noted that the offending was premeditated, occurred in a public place and posed a risk to bystanders. It was further noted that the defendant had previously committed armed robberies and that there was no evidence he was psychotic at the time of those offences. Allsop P considered that the defendant's future dangerousness would only be acceptable if he received medication, abstained from illicit substances and managed other stressors in his life. The defendant was found to have a high risk of re-offending. The Court made a finding of special circumstances on the basis that the defendant required a significant period of supervision to ensure compliance with his medication regime.
Allsop P observed at [84] that: "… he is, without doubt, a man capable of violence of the most serious kind. He was a kickboxer and has a knowledge of, and some facility with, guns. … He is potentially a very dangerous man. His psychiatric condition is such that unless he is taking appropriately prescribed medication, he can be prone to psychosis and violence."
While in custody the defendant was admitted to Long Bay Hospital four times for psychiatric treatment (in 2008, 2010, 2013 and 2016) on each occasion for a period of several months. While in hospital he accepted depot antipsychotic medication (long acting injectable medication) but ceased compliance upon being released back into the mainstream prison population, leading to a decline in his mental state. In 2014 a Justice Health psychiatric report recommended that the defendant be subject to an "extremely high degree of supervision and support whenever consideration to moving him to a less restrictive setting occurs." In 2016 a psychiatrist reported to the Serious Offenders Review Committee (SORC) that the defendant was reluctant to engage in the psychiatric interview and was "vehemently opposed" to taking psychiatric medication.
In mid-2017 the defendant was assessed to be stable and compliant with his medication, with no evidence of ongoing psychotic symptoms.
The defendant became eligible for release to parole in November 2017. Parole was initially refused on the basis that he presented an unacceptable risk to the community, needed to address his offending behaviour and had not engaged in external leave programs.
In July 2018 a psychiatric report indicated that the defendant appeared to be in remission from his psychotic symptoms and displayed genuine insight about his past symptoms. The report noted a striking contrast between his behaviour when on sustained antipsychotic treatment compared to his behaviour when unwell.
In August 2018 the defendant attended his last VOTP session and threatened a female facilitator, stating "You're a typical woman. Women shouldn't have power over a man. You shouldn't even have this job… I know your last names [directed at both female psychologists]. That wasn't a good move." He later reported that he had become upset when he found out that he would not be allowed to attend a Support Network Meeting.
Between January and June 2019 the defendant was reviewed by a consultant psychiatrist. He did not display ongoing psychotic symptoms and appeared to be accepting of his diagnosis and to show some insight into his past symptoms.
In October 2019, the SPA again refused the defendant's release to parole on the grounds of unacceptability of risk.
In January 2020 a consultant psychiatrist reviewed the defendant and noted that he did not display any psychotic symptoms. In April 2020 a Justice Health psychiatrist noted in a report to SORC that the defendant required indefinite psychiatric care, as a relapse of psychotic symptoms would "dramatically increase his risk of aggression". It was noted that when the defendant discussed the Index Offence he denigrated the victim and spoke in a narcissistic manner about her, before saying that he "[felt] terrible" about his offending.
A Pre-Release Report dated 28 August 2020 noted that the defendant had been compliant and respectful with staff and had improved his ability to deal with other inmates. The report supported his release to parole due to his continued stability and incremental progress.
On 23 October 2020, the SPA made a parole order providing for the defendant's release on 6 November 2020. The defendant has been on parole since 6 November 2020. His head sentence will expire on 7 November 2021.
While in custody the defendant incurred a total of 23 institutional misconduct charges between July 2008 and November 2016 for intimidation, assault or fighting, including assaults on female Corrective Services officers. He did not incur any further institutional misconduct charges between November 2016 and his release in November 2020.

Submissions

The defendant raised no issue as to the matters in s 5B(a), (b) and (c) of the Act. He did, however, submit that the evidence did not establish to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. The defendant submitted that he had been at liberty in the community for almost one year and there was no suggestion he had relapsed into drug use or committed any further offences. It was submitted that he had been compliant with his parole and had been living a positive lifestyle in the community. Counsel for the defendant noted that his Community Treatment Order (CTO) case manager reported that he had been stable, compliant with treatment and was taking responsibility for his mental health. The treating team did not anticipate applying for another CTO upon the expiration of the current order on 10 January 2022 and expected that the defendant would be discharged to the care of his GP. It was submitted that an ISO would be inconsistent with this approach as it would mandate treatment as a condition of the order rather than allowing the defendant to take responsibility for his own treatment.
Counsel for the defendant highlighted the positive community connections he had established while on parole, including becoming a member of the Knights of the Southern Cross, his engagement with religion and his positive social contacts. It was further submitted that the defendant's consent to participate in the Suspect Target Management Program (STMP) was an unusual step which signified his commitment to maintaining a law-abiding lifestyle.
The plaintiff submitted that the defendant had a lengthy history of offending, including when he was not experiencing psychotic symptoms, and had previously resisted mental health treatment. It was submitted that the Court could not have confidence that he would maintain abstinence from drugs and compliance with his medication in the absence of supervision. It was submitted that interim orders were necessary for the protection of the community pending a final hearing at which expert evidence in relation to rehabilitation and risk could be adduced.
The plaintiff further noted that the defendant had recently been refused permission to attend recruitment activities for the Australian Defence Force. It was submitted that this was evidence of the defendant's interest in professions or activities involving weapons and violence.
In relation to the defendant's CTO it was submitted that the Mental Health Act 2007 (NSW) provides a different regime with a different focus. It was submitted that the expiration of his CTO increased the defendant's future risk of non-compliance with his medication. The plaintiff noted that as recently as January 2021 the defendant ceased taking his antidepressant medication without approval and requested a reduction in his injectable medication which was not approved by his psychiatrist.
The plaintiff submitted that the defendant's stability over the past year in response to supervision did not reduce his future risk in the event that he relapsed to substance abuse or ceased taking his medication in response to other stressors. It was submitted that he had not spent a significant amount of time on parole as he was refused parole between November 2017 and November 2020 and that he would benefit from additional supervision.

Assessment of risk

In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the factors set out in s 9(3). Those factors are as follows.

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)

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)

I have had regard to the risk assessment report prepared by Dr Richard Parker, psychologist, on 1 June 2021. The defendant's risk of general re-offending was assessed as medium under the LSI-R (54% of medium risk offenders re-offend within two years); his risk of violence was assessed as average under the VRAG-R, compared to other serious violent offenders (34% of average risk offenders re-offend violently within five years); his risk of violence under the VRS assessment was high (similar to a group of offenders with a 49.5% risk of violent recidivism within 4.4 years); his risk of further domestic assault was in the sixth of seven "bins", reflecting a higher risk than 96% of the sample population (71% of offenders in this category assaulted a female domestic partner within 4.8 years). Dr Parker concluded that the defendant likely has particular issues which raise substantial concerns about his risk of violence against women he forms romantic attachments to.
Dr Parker identified three broad criminogenic risks in relation to the defendant: substance abuse, antisocial associates and criminal thinking. The defendant's "criminal thinking" was his "over-arching" criminal need and was associated with attitudes such as the normalisation of violence and the belief that his actions were sometimes outside of his control. Dr Parker noted that these beliefs may only be activated in certain circumstances and may not be evident when the defendant is calm. In relation to antisocial associates, Dr Parker noted that the defendant had a long history of criminal associations and was more likely to revert to these connections if unsupervised.
In relation to risk scenarios, Dr Parker opined that any further violent offences would likely be associated with an escalation in criminal thinking, a disconnect from his family, discontinuation of his antipsychotic medication, association with criminal peers and a return to substance abuse. In Dr Parker's opinion this violence would either be unplanned and reactive (likely to fall short of a "serious offence", although possibly escalating to this level) or a planned offence preceded by a significant period of rumination which would almost certainly be serious.
I have also had regard to the various other reports tendered on the application.

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

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)

I have had regard to the risk management report of Mick Glover, Community Corrections Officer, dated 1 July 2021. In relation to the proposed risk management plan, the report stated that the defendant would have weekly contact with a Community Corrections Officer and would receive monthly home visits. His behaviour would be monitored through both covert and face-to-face surveillance. The report noted that his interactions with others would be monitored to ensure his interactions remain pro-social but also to detect whether the defendant commenced a relationship with a woman (in light of the high risk the defendant would pose to a potential partner).
The recommended conditions included electronic monitoring to ensure adherence to his schedule of movements and to eliminate the possibility of the defendant establishing a romantic relationship unbeknownst to Community Corrections. Conditions in relation to accommodation, association and electronic communication were also proposed in order to limit the potential risk created by a romantic relationship. Restrictions in relation to alcohol and other drugs as well as weapons were recommended in light of the defendant's criminal history and criminogenic risks. A search and seizure condition was also proposed to assist in the enforcement of other conditions. Further conditions in relation to a prohibition on changing his name or appearance and a direction to engage with mental health and VOTP services were also recommended.

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)

In December 2011 the defendant completed the "Getting SMART" program with perfect attendance. Although he completed the program it was noted that he exhibited resistance and was not addressing his current issues. He was observed to display hostility, denial and blame. In 2011 he accepted a referral to the Violent Offenders Therapeutic Program (VOTP) but subsequently withdrew his consent. In 2015 he commenced the VOTP but withdrew after a self-reported decline in his mental state.
In February 2017, the defendant completed the Managing Emotions Program. The facilitator noted the defendant completed each session comprehensively and to a high standard and reported that he was open and honest about his behaviour and seemed focussed on developing the skills to maintain a healthy lifestyle.
In June 2017 the defendant again commenced the VOTP. While in this program, he also regularly attended Narcotics Anonymous and Crystal Methamphetamine Anonymous. He completed the VOTP program in August 2018 and commenced maintenance sessions in January 2019. As noted above, the defendant threatened two female facilitators in his final VOTP session. In April 2020 he again commenced monthly VOTP maintenance sessions. His VOTP psychologist has expressed concerns about the defendant's unrealistic expectations including that he would be able to join the military and his expectations of forming relationships with strangers at cafes.

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)

The above reports set out the conditions which, in the opinion of Community Corrections, would be sufficient to manage the defendant's risk in the community. The majority of those conditions are consistent with the defendant's parole conditions which have thus far prevented the defendant from re-offending.

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

The defendant has successfully complied with the conditions of his parole for almost one year. It is to be expected that he would continue to comply with similar conditions under an ISO or ESO.

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)

As above, the defendant has completed almost one year on parole without any breaches of his conditions.

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)

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)

The views of the sentencing court and the Court of Criminal Appeal are set out above in the defendant's criminal history. Allsop P noted in particular the defendant's potential dangerousness if non-compliant with his medication.

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

I have had regard to the other materials tendered on this application including the affidavit of the defendant and affidavits of those who support him in the community. The defendant appears committed to maintaining a law-abiding lifestyle and remaining connected to his family and pro-social contacts.

Would the matters alleged in the supporting documentation, if proved, justify the making of an order?

I approach this test on the basis discussed above.
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 under supervision in the community. I am further satisfied the defendant is a "supervised offender" and the application has been made in accordance with s 5I of the Act.
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".
There is no doubt that the defendant has made what appears to be real progress in recent times. The defendant is also correct to point out that the Index Offence is of some age, having occurred in 2008. However, central to this application is the seriousness of that offence. An unacceptable risk does not require that the offender is more likely than not to commit a serious offence: s 5D of the Act. Rather, unacceptability of risk is a calculus based on the likelihood of a risk eventuating and the potential consequences if it does eventuate: see State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] per Harrison J. Thus, an offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: Kamm at [41] and [43]. In the present context, a low risk of the defendant acting in a manner similar to the Index Offence in 2008 would be, to my mind, unacceptable.
The reality is that the defendant has had little time in the community. He was in custody from the time of the offence in May 2008 until his release to parole approximately one year ago on 6 November 2020. During that time his progress was not smooth. As a result he was not released to parole at the expiry of his non-parole period on 7 November 2017. Indeed, he remained at that time a maximum security prisoner. Whilst there was some fluctuation, it was not until 29 March 2019 that he was able to obtain, and maintain a B, or medium, security classification. When he progressed to a medium security classification he remained a "non-association" inmate (a form of protection). This does not reflect any negative behaviour, but did impact the level of contact he had with others, leading the author of the pre-release report prepared on 28 August 2020 to comment that, "[o]n the surface it appears as if [the defendant's] behaviour has stabilised however he has not been tested within the main population". He did not progress further in his classification until his release to parole on 6 November 2020. It is relevant to refer back in this context to what was said by the Court of Criminal Appeal. Allsop P (with whom Price J agreed) said at [96]: "The imposition of an appropriate sentence is extraordinarily difficult. The applicant intended to kill a young woman in an attack which was terrifying for her; he badly injured her, giving her lasting physical and psychological damage. His psychological state was delusional, which was directly causative of the attack. His moral culpability is significantly reduced by the psychotic state; specific deterrence is of reduced relevance; and general deterrence is significantly attenuated. A significant period of supervision on parole is called for, not least because of his danger to the public when not under medication. There had also been violence in the past but it was far from clear that those episodes were not substantially connected with his mental illness as it was developing or had developed."
The defendant has, unfortunately, not had the period of extended supervision that was envisioned when his sentence was determined. Further, on his released to parole he was made subject to stringent conditions including electronic monitoring. Thus, while not in custody, his liberty has been significantly constrained. That is not, of course, the end of the matter. I must determine the matter based on all of the facts alleged in the supporting documentation. This includes evidence of a developing insight into his mental illness. In this regard I note his compliance with his CTO. It appears those administering that order anticipate there will be no need to renew the order. While I have had regard to this as part of the evidence of his progress I must also bear in mind that the legislative regimes, and applicable tests, are different.
As has been detailed above, it has only been in relatively recent years that the defendant has developed insight into his mental illness. I accept that by July 2018 it was reported that the defendant appeared to be in remission from his psychotic symptoms and displayed genuine insight with respect to his past symptoms. Similar positive reports were made, as discussed above, in January 2019, June 2019 and January 2020. These positive indicators must be seen in the context of other evidence. It is particularly concerning that after the assessment in July 2018 that the defendant had developed insight, he made serious threats to the facilitators in his final VOTP session. These might have been empty words. It is, however, impossible not to view them in the context of both the Index Offence and what appear to be persistent attitudes towards others, particularly women, who appear to stand in the way of his perceived interests.
Further, even accepting that the defendant has made progress and developed insight, his stability, as reported by the relevant health professionals, is dependent on his acceptance of treatment. In this regard the defendant has, as recently as January of this year, taken himself off antidepressant medication without consulting with his doctor. On 22 March of this year the defendant sought a reduction in his fortnightly antipsychotic medication. While it is understandable that the defendant might make requests to reduce the dosage of his medication, it is at least suggestive of a less conservative approach to the management of the defendant's illness than the medical professionals were prepared to countenance.
The above matters are to be viewed in the light of the fact that, as discussed above, the defendant is yet to be properly tested in the community. It is not known what challenges the vicissitudes of life in the community will bring and, more importantly, how the defendant will respond. In this regard Dr Parker observed that some of his thinking showed "a certain lack of reality testing". He commented on the potential for unrealistic expectations with respect to re-integration into society to provoke a reaction in an attempt to rebuild self-esteem. While Dr Parker did observe that such behaviour would not necessarily be violent, a violent reaction is clearly a concern.
I have had regard to the various matters as required by s 9(3) of the Act. I note the estimations of the defendant's risk of further offending in the tests discussed by Dr Parker as being from medium to high risk. Assimilating all the above matters, when regard is had to the defendant's history of violence, his familiarity with weaponry, his history of kickboxing, and his engagement in careful planning and execution of the Index Offence, I am of the view that while there is every chance the defendant will not re-offend, if he does, it has the potential to be extremely serious. In these circumstances, I am of the view that the matters alleged in the supporting documentation would, if proved, justify a finding of satisfaction "to a high degree of probability that the [defendant] poses an unacceptable risk of committing another serious offence".
I am as a result satisfied that the test in s 7(4) of the Act is met.

Section 10A of the Act - additional considerations

As noted above, s 10A which relates to the making of an ISO, provides the same threshold test as s 7(4) but has some additional features. Section 10A(a) requires that it "appears to the Court" that the offender's "current custody or supervision will expire before the proceedings are determined". The defendant's sentence expires on 7 November 2021. I am, on this basis, satisfied that the condition in s 10A(a) is met.
Further, as noted above, s 10A invests the Court with a discretion as to whether to make an order even if the preconditions in s 10A(a) and (b) are satisfied. The evidence tendered by the defendant and the evidence adduced in cross-examination are relevant to this exercise.
Dr Parker in cross-examination acknowledged his risk assessment report is dated 1 June 2021, and was consequently was some five months out of date by the time of the preliminary hearing. Dr Parker in cross-examination accepted that the defendant had made progress in recent times and that the fact that he has not re-offended during the year he has been on parole meant that risk of re-offending had dropped. He acknowledged that the tests administered provided a percentage likelihood of re-offending within a prescribed period from release from custody, and that in circumstances where one year of that period has passed without offending, it followed that the defendant's risk was somewhat lower than indicated. Further, the rate of re-offending post-release is not linear. That is, the likelihood of re-offending diminishes with the passage of time. As a result, the fact that the defendant has now been out of custody, without re-offending, has significantly reduced his percentage likelihood of re-offending based upon the tools applied. Dr Parker did qualify the significance of this, noting that while the defendant has not re-offended, he has not been at complete liberty in the community but rather is subject to the conditions of the parole order, which include restrictions as to his movements, compliance with which is enforced by electronic monitoring.
Dr Parker also accepted that the tests applied do not test for the risk of a "serious offence" as defined in the Act, but rather (depending on the test) are limited to offending generally or violent offending (of any level of seriousness). He did however observe that serious offences form a subset of the potential future offences. It seems to me that the tools are something of a "blunt instrument" to be considered in conjunction with all the material. In this case this includes the particular offending the defendant has engaged in in the past.
The defendant also relied upon various affidavits indicating pro-social interactions with other members of the community. Additionally, he put before the Court a broader selection of case notes (OIMS records) which, he said, gave a broader context to the particular notes relied on by the plaintiff. That material is certainly positive. This material was provided to Dr Parker. Critically, Dr Parker maintained his opinion as expressed in the risk assessment report.
The plaintiff however stressed that, as observed by Garling J in Sturgeon at [7]: "having regard to the nature of the HRO Act as protective legislation, and the stated primary object in s 3 of the HRO Act, '… to ensure the safety and protection of the community …', it is difficult to see that the discretion to decline to make an IDO or ISO would arise other than in an exceptional case".
The plaintiff submitted there was nothing exceptional about this case that would warrant me declining to make the order in circumstances where I was satisfied the threshold in s 10A(b) had been met.
One can imagine the case in which the in material produced by the defendant (in cross-examination or by a further document), clarifies or significantly undermines an earlier report. That is, however, not this case. Here, the additional material relied upon by the defendant, while positive, does not alter the view that, while the defendant has made real progress, and is to be commended and encouraged in this regard, he has not been fully tested in the community. In these circumstances, the requirements of s 10A(a) and (b) having been satisfied, I am of the view the discretion should be exercised in favour of making an order.

Appropriate conditions

Section 11(1) of the Act provides that an interim supervision order "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". An inclusive list of directions which may be given is then set out at s 11(1)(a) to (n). Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.
The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales [2008] NSWCA 33; (2008) 182 A Crim R 107 at [19]. Regard must be had to the objects set out in s 3 of the Act.
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."
There is, in the present matter, a significant divide between the parties as to the appropriate conditions. In considering the question, it is pertinent to note that Dr Parker considered that the following circumstances would constitute "risk factors" for the defendant re-offending: "• An escalation/continuation of the criminal thinking identified earlier - particularly rumination about his former partner, or a current partner. While he may attempt to hide this from supervising staff, it is likely the resentment of correctional supervision will be obvious to staff, through the breaking of 'small' rules; A disconnect from, or superficial engagement with, his family; Discontinuation of his antipsychotic medication; Associations with antisocial peers, combined with a lack of prosocial peers; and A return to substance abuse."
In my view the conditions should be framed with these factors in mind.
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.

Part A: Monitoring and reporting

Conditions 1-3 are appropriate. I take a different view with respect to scheduling and electronic monitoring.
In the risk management report the author stated: "[The defendant's] interactions with others, particularly his interaction with associates would be monitored to ensure his interactions remain pro-social, but also to detect any indication he has commenced a relationship with a woman. As noted in the risk assessment report dated 1 June 2021, one of [the defendant's] most salient risks appears to be involvement in an intimate relationship as this poses a high risk of interpersonal violence with a female partner."
The report went on to note that a schedule and electronic monitoring would assist with respect to the above. While I have no doubt that it would be convenient, I do not regard it as appropriate.
The risk in this case centres around the defendant becoming unwell which in turn is related to his co-operation with treatment providers. Indicators of him becoming unwell are likely to be apparent to those with whom he associates and the DCO. In the particular circumstances that pertain here, it seems to me the defendant's risk can be monitored by a combination of disclosure obligations on the defendant and contact by the DSO with the defendant, his treating doctors and associates to ensure he continues to manage his mental health and remains headed in a pro-social direction. This does not require minute by minute monitoring. I decline to impose conditions 4 to 7.

Part B: Accommodation

The defendant's accommodation arrangements are closely linked to his stability. I regard conditions 8 to 10 as appropriate. I do not regard condition 11 in its current form as appropriate and would delete the requirement to promptly notify of any visitors. It will read: "The defendant must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO."

Part C: Place and travel restrictions

Conditions 12 to 14 are in my view appropriate (and condition 13 is mandated by s 11(2) of the Act).

Part D: Employment, finance and education

These conditions are appropriate. They will ensure that the defendant is appropriately engaged.

Part E: Drugs and alcohol

The defendant has a history of prohibited drug use. While the defendant's drug issues appear to have been resolved, prohibitions and controls around the use of drugs remain appropriate. The situation with alcohol is less clear. However, given the transitional period, particularly having regard to my view that scheduling and monitoring is not warranted, there should be conditions that are capable of controlling alcohol consumption should that become necessary. I propose imposing conditions 19 to 22.

Part F: Contact and non-association

These conditions, 23 to 27, are appropriate subject to adding the words "for the safety of that person or another person" to condition 26.

Part G: Weapons

Conditions 28 and 29 are appropriate.

Part H: Access to the internet and other electronic communication

These conditions constitute a significant intrusion on what would otherwise be the defendant's right to privacy. The defendant also submitted that they represent a greater level of intrusion than under his current parole order. That is not necessarily so given the generality of the parole conditions such that they could be utilised to similar effect as the conditions proposed under Part H. In any event I must decide what is appropriate on the material before me rather than decide whether the order should be more or less restrictive than the current parole order.
In relation to these conditions, while acknowledging the intrusion, as noted above, the defendant will be in a period of transition, which in the absence of scheduling will involve a level of freedom he has not experienced in many years. His contacts and associations will be a key factor in success or failure. I am of the view that it is appropriate, at this early stage at least, that conditions 30 to 40 be imposed.

Part J: Access to pornographic, violent and classified material

Part L: Medical intervention and treatment

Conditions 41 to 55 are, in my view, appropriate.

Conclusion

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

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.
I note that an order in the terms of prayer 4 in the summons was made at the commencement of the hearing. That is an order that: 1. Access to the Supreme Court 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 for access.

State of NSW v Devaney CONDITIONS (157747, pdf)

Amendments 26 April 2022 - minor typographical errors corrected 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

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