HIS HONOUR: This is an application by the State of New South Wales ("the plaintiff") for an extended supervision order ("ESO") made pursuant to s 5H of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The plaintiff applies, by his amended summons dated 2 February 2022, for an order for a period of three years in relation to Mr Todd Devaney ("the defendant").
The issues for my determination are whether an order should be made, and if so, the term of that order and the conditions to be imposed.
For the reasons that follow, I am of the view an order should be made. However, I am not minded to impose all the conditions the plaintiff sought.
[2]
Procedural history
On 5 November 2021, I made an order, pursuant to s 7(4) of the Act, appointing two qualified psychiatrists, psychologists (or combination of such persons) to examine the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court: State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432.
On the same date I imposed an Interim Supervision Order ("ISO") for a period of 28 days. This order was subsequently extended on two occasions.
In accordance with the order that the defendant be examined and reports provided, reports were obtained from Dr O'Dea and Mr Sheehan. The hearing seeking a final order proceeded before me yesterday. At the outset of that hearing the amended summons was filed. The plaintiff, by its amendment of the summons, reframed the orders sought to replicate those imposed under the ISO. As such the plaintiff no longer seeks conditions for electronic monitoring or a schedule of movements. The term of the order sought was reduced from five years to three years.
A large amount of material contained in a four volume court book was tendered at the hearing. This included the evidence tendered on the preliminary hearing, evidence updating matters since that hearing, evidence with respect to the operation of the proposed ESO and reports from Dr O'Dea and Mr Sheehan. The defendant also relied on evidence tendered at the preliminary hearing together with further affidavits of the defendant and his instructing solicitor, the latter annexing a letter from the case manager of his community mental health team.
Dr O'Dea and Mr Sheehan were each called to give oral evidence and were cross-examined. The defendant was called and was cross-examined. The defendant also tendered a transcript of the evidence given by Dr Richard Parker at the preliminary hearing. At the conclusion of the hearing, I reserved my decision.
At the hearing, I was informed the ISO would expire at "midnight tomorrow". By this I understood the plaintiff to mean at the expiration of 4 February 2022: cf State of New South Wales v Nikua (Final) [2021] NSWSC 1240 at [7].
[3]
Legislative framework
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].
Regard must be had to the objects in s 3 of the Act. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision of "high risk violent offenders": s 3(1). Section 3(2) provides that another object of the Act is to encourage such offenders "to undertake rehabilitation".
Section 5B provides the test for the making of an order and is set out in full, with its heading:
5B Making of extended supervision orders - unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
There exists a discretion as to whether to make an order, even if each of s 5B(a)-(d) are satisfied (given the use of the word "may" as opposed to "must").
There is no issue the defendant satisfies s 5B(a). That is, he is an "offender" (as defined in s 4A) and has served a sentence of imprisonment, by way of actual custody, for a "serious offence" (as defined in ss 4 and 5A). The "index offence" (the term used by the parties to describe the offence triggering s 5B(a)) committed by the defendant falls under the definition of a "serious offence" by virtue of it being a "serious violence offence" (s 4). It is a "serious violence offence" as defined by s 5A as it is a serious indictable offence (within s 5A(3)(a)) constituted by engaging in conduct causing grievous bodily harm to another person, with intention or recklessness as to causing that harm: s 5A(1)(a).
The defendant is a "supervised offender" within the meaning of s 5I (as required by s 5B(b)) and an application for an order has been made in accordance with s 5I (as required by s 5B(c)).
I did not understand either party to raise any issue with respect to s 5B(a), (b) or (c).
Thus, the real question for resolution is the test in s 5B(d): that is, whether I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
In determining whether or not an ESO ought to be made, regard must be had to s 9 of the Act.
Section 9(1) provides I may determine the application either by making an order or by dismissing the application. Section 9(2) provides that in determining whether or not to make the order the paramount consideration must be the safety of the community. A non-exhaustive list of matters I must consider are to be found in s 9(3). To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the material tendered by the plaintiff, and to some extent that tendered by the defendant.
[4]
Factual Background
The factual background was set out in State of New South Wales v Devaney (Preliminary) at [25]-[50]. While that summary was accepted on the preliminary hearing as reflecting the matters alleged (rather than admitted), the facts set out are based on material tendered in the hearing. A similar summary was set out in the plaintiff's submissions and no issue was taken with that summary. It is convenient therefore to repeat that which was set out in the preliminary hearing:
"25 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.
26 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.
27 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.
28 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.
29 In mid-2001, the defendant commenced a relationship with the victim of the Index Offence.
30 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.
31 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.
32 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.
33 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.
34 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.
35 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.
36 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.
37 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.
38 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.
39 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.'
40 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.
41 In mid-2017 the defendant was assessed to be stable and compliant with his medication, with no evidence of ongoing psychotic symptoms.
42 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.
43 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.
44 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.
45 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.
46 In October 2019, the SPA again refused the defendant's release to parole on the grounds of unacceptability of risk.
47 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.
48 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.
49 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.
50 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."
Since the time of the preliminary hearing the defendant has continued to live on his own in private accommodation. He has continued to engage positively with pro-social members of the community. He has been the subject of a Community Treatment Order ("CTO") under the Mental Health Act 2007 (NSW). A letter from his case manager dated 19 January 2022 indicated that he had been involved with the Community Mental Health Treatment team from a time shortly after his release from custody in November 2020. During that time, he has been compliant with treatment and his mental health has been stable. The case manager indicated that the defendant is a "highly self-sufficient and functioning person" with "good insight into his mental health condition". Consequently, he was reported to have "very little case management needs".
The current CTO expires in July 2022. The defendant's case manager reported, presumably given his progress, that subject to the views of the Community Forensic Team, there would be no application to extend the CTO and "the aim would be to manage [the defendant] as a voluntary client for a period of time before discharging him from our service into the care of his GP".
[5]
Submissions of the State on the primary issue
The gravamen of the plaintiff's submissions was that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision by way of an ESO.
The bases for that position were as follows.
First, the defendant has a conviction for a serious violence offence. It was noted that the index offence occurred against a background of other offences involving violence and weapons. While those other offences did not rise to the level of a serious violence offence under the Act, the plaintiff stressed that these offences remained informative of the risk posed by the defendant.
Secondly, the circumstances of the index offence were such that any repetition of such an offence would have grave consequences. These circumstances include his planning of the offence, which he engaged in while mentally unwell, his intention to kill and his use of a disguise to evade capture.
Thirdly, limited confidence can be drawn from the defendant's current stability and amenability to psychiatric care. The defendant made aggressive and threatening statements to facilitators in two Violent Offender Therapeutic Program ("VOTP") sessions in April and August 2018. This included a threat to "shoot the Commissioner". These threats were made despite the relative stability of his condition since mid-2017. A deterioration in his mental health, and a relapse into stimulant use, would put him at risk of committing another serious violence offence.
Fourthly, a CTO, which falls within the regime established by the Mental Health Act, is not sufficient to mitigate the defendant's risk. A CTO only addresses his mental health and does not go far enough to manage all risk factors presented by the defendant, such as his past involvement and attraction to criminal activities, distorted cognitions and entrenched antisocial beliefs, substance abstinence and interpersonal aggression.
Fifthly, the defendant suffers a severe psychotic illness which has been assessed by both Dr O'Dea and Mr Sheehan as requiring long term specialised psychiatric care. The possibility that the current CTO will not be continued following its expiration in July 2022 heightens the need for an ESO to manage the risk factors moving forward.
[6]
Submissions of the defendant on the primary issue
The defendant opposed the ESO on the basis that he did not pose an unacceptable risk of committing another serious offence if not kept under supervision: s 5B(d). He conveniently summarised his position in six points.
First, the defendant submitted that the index offence, committed in 2006, is the only serious violence offence that he has committed. This is unlike the other matters on the defendant's record, such as the armed robbery offences, which do not qualify as serious offences under the Act. It was stressed that as the defendant is now 51 years old, the risk of his commission of any offence has also diminished.
Secondly, it was submitted the index offence was committed in very specific circumstances where the defendant was acutely psychotic and taking illicit substances. The defendant submits that his risk of commission of a further serious offence is tied inextricably with the treatment of his mental health condition, and that the defendant's high degree of commitment to his treatment is sufficient to mitigate his risk of committing a further serious offence.
Thirdly, the defendant submits that the risk assessment tools such as the Violence Risk Scale ("VRS") utilised by Mr Sheehan to assess the defendant's risk of violence should not be relied on to determine risk. Instead, the defendant submits that Mr Parker's oral evidence at the preliminary hearing should be accepted - that is that there is a significant reduction in the level of risk in a person who had spent, at the time of that hearing, approximately 12 months in the community without reoffending.
Fourthly, the defendant submitted that he has been compliant with his mental health treatment from at least July 2018 and has abstained from substance use since an isolated instance of relapse in 2014. This indicates stability in his mental health condition and drug use, the central risk factors to his offending, for a period of approximately three and a half years.
Fifthly, the defendant submitted that the treatment of his mental health should be the primary factor in considering the risk he poses of committing further offences. The defendant relied on his adherence to treatment in this regard.
Sixthly, the defendant emphasised the availability of other appropriate mental health treatment options in the community, such as a CTO, that are not only sufficient to manage the risk posed by the defendant, but which are more appropriate than an ESO in dealing with such risk. In support, the defendant pointed to the evidence of Dr O'Dea that "the defendant should continue assertive, structured psychiatric treatment in the community" and that that would be "most appropriately done under a CTO", which essentially affirmed what had been said in his report.
[7]
Evidence at hearing
I turn now to the evidence given at the hearing before me. Because most of the matters raised by the experts and the defendant at the hearing are dealt with incidentally in my determination, this overview of evidence shall be concise.
[8]
Dr O'Dea
Dr O'Dea generally adhered to his recommendation in his report that the defendant should continue in "assertive, structured, supervised, co-ordinated and long term psychiatric treatment in the community". He considered that this would need to continue beyond the expiration of the CTO in July 2022. Dr O'Dea was of the opinion that this treatment could happen either through a CTO or an ESO and it would "most appropriately be done under the provisions of a CTO".
Dr O'Dea considered that the primary risk factor in the defendant committing a violent act is the defendant's psychiatric illness. He considered substance abuse to be a concern but this was largely related to the potential for such abuse to trigger the psychiatric illness. Dr O'Dea pointed out that the issues of prohibited weapons and antisocial relationships were two additional "main risks", although he accepted that these matters and the substance abuse factors appeared to be under good control.
Dr O'Dea acknowledged that the defendant appeared motivated to continue with his abstinence from drug use and to maintain his antipsychotic medication. He accepted that it is significant that he appears to have maintained this motivation for a period of approximately three and a half years. He also accepted that the defendant's age and consent to engage in the NSW Police Force Suspect Target Management Plan were protective factors. However, he noted that the defendant's outbursts during the VOTP sessions in April and August 2018 could be seen as signs of "effective disturbance" related to his psychiatric illness and indicative of the fact that he still "has issues with threatening statements and control of his behaviour".
[9]
Mr Sheehan
Mr Sheehan generally adhered to his opinion in his report that the defendant posed a risk of committing a further serious violence offence in the community. Mr Sheehan agreed with Dr O'Dea that the defendant requires long-term management and expressed that he would be concerned if there were to be no supervision following the expiration of the CTO in July. Mr Sheehan was of the view that a CTO is limited to managing the defendant's psychiatric disorder and that, without an ESO, there are some risk factors that will remain unmanaged.
Mr Sheehan agreed with Dr O'Dea that the defendant's mental health condition is a central risk factor but stressed it is not the only important risk factor, noting that his criminality and violence preceded the onset of psychosis.
Mr Sheehan maintained that the VRS tool used by him to assess the defendant's risk of "violence" was effective in assessing risk. He was of the opinion that it would not make "a great difference" that the tool compares the score of the defendant, who had spent approximately 16 months in the community at the time the tool was used, against scores that were taken when the subjects were considered for release.
Mr Sheehan considered that the defendant had good insight into his psychotic condition, although he noted that the defendant's spiritual beliefs may hinder his willingness to engage openly in his self-monitoring of his condition. Mr Sheehan acknowledged that the defendant's pro-social community supports constitute a protective factor but noted that he was living with his parents when he committed the index offence. He also agreed that the defendant appeared genuine in his desire to maintain abstinence from the use of illicit drugs and considered three and a half years to be a significant period of time for a person with a lifelong psychotic illness to be stable on medication. However, he maintained that his substance use history means he remains vulnerable to substance use.
[10]
The defendant
The defendant, consistent with what he has previously told various report writers, said that he had had a religious awakening in Egypt in 2006 and began to take religion very seriously after his return. By August 2006, however, he had recommenced his use of illicit drugs. This occurred in the context of a workplace injury which led to him being on workers' compensation. He believed that this was a material cause in the onset of his psychiatric illness.
The cross-examination of the defendant on the circumstances of the index offence revealed that it involved a degree of planning. The defendant described how he attended the victim's workplace two days prior to the offence to find out when she would be at work and obtained swipe cards to gain access to a secured area within the Star City Casino. He, however, maintained that he had no intention of killing the victim. I note that while this was not the first time he has denied an intention to kill, this was an element of the offence to which he pleaded guilty.
The defendant was also questioned about his possession of three pistols. He said he acquired them as a status symbol in the early 2000s. He suggested that he was only in possession of these pistols even after his "religious awakening" because he was concerned that it might lead to the commission of a crime if he sold them. He did not dispose of them as "[i]ts not exactly easy to throw away $15,000". The defendant also explained that he had previously participated in firearms training at a Thailand military base and in Queensland. He said he attended an army recruitment centre last year when he was trying to "[find his] feet" and also to "make [his] dad happy". He said it was not completely unrealistic as he had been approved to join the army after he had served his sentence for the armed robberies.
The defendant accepts that he has a mental illness and that medication is required to keep it under control. He notes that he has worked hard to get on top of his mental illness since 2017 and to engage with and to be compliant with the CTO team. While he acknowledges the role of psychiatry, he states that he sees a conflict between psychology and his religious views and expressed his dislike for psychologists.
[11]
Matters to be taken into account
In determining whether to make an ESO, I am required to have regard to the matters set out in s 9(3), in addition to any other matters I consider relevant. Those matters are as follows.
[12]
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 noted above reports were obtained from Dr O'Dea and Mr Sheehan. It should be noted at the outset that the defendant was co-operative with the process of obtaining reports.
As noted above, each of Dr O'Dea and Mr Sheehan were cross-examined. Each made a number of concessions with respect to propositions put by the defendant's counsel, however each adhered to the opinions expressed in their reports.
Both Dr O'Dea and Mr Sheehan expressed the view that the defendant suffers a severe psychotic illness which will require long term specialised psychiatric care. Their oral evidence has been summarised above. Given the significance of the reports and the evidence of these witnesses, I will discuss their opinions in more detail in the course of my reasoning below.
[13]
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 Parker, psychologist, on 1 June 2021. I repeat my observations at [59]-[61] of my preliminary decision.
I have also had regard to the various other reports tendered on the application.
[14]
The results of any statistical or other assessment: s 9(3)(d)
This matter has been considered in the context of the expert reports.
[15]
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 affidavit of Kelli Grahbam of 7 January 2022. Ms Grabham is the High Risk Offender Applications and Operational Governance Officer in the Extended Supervision Order Team and On-Call Manager. Her affidavit explains the operation of the ESO team and the manner in which the proposed ESO would be administered, including the utilisation of the various conditions sought. I have also 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 has commenced a relationship with a woman (in light of the perceived 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.
As noted above, the amended summons no longer seeks either electronic monitoring or a schedule of movements.
[16]
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 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 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.
The defendant has also participated in treatment provided through his Community Mental Health Team. This is discussed in other parts of these reasons.
[17]
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)
As noted above, the defendant is currently in the community subject to both an ISO and a CTO. It is not however known whether the CTO will extend beyond July this year. Beyond the expiry of the CTO the defendant will have available to him the option of voluntary engagement with the Community Mental Health Team, and beyond that management of his mental health through his General Practitioner ("GP"). There is no doubt that proper management of the defendant's mental health will reduce the likelihood of his offending.
[18]
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. He has complied with the ISO. He has also been compliant with the Community Mental Health Team. It is to be expected that he would continue to comply with conditions under an ESO. While Mr Sheehan cautioned that imposition of more stringent terms than currently in place might retard his progress, this is now moot given the orders sought in the amended summons.
[19]
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.
[20]
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 criminal history is recounted in the factual background above.
[21]
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 ("CCA") are referred to above. Allsop P noted in particular the defendant's potential dangerousness if non-compliant with his medication.
[22]
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, the letter from his case manager and affidavits of solicitor and 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.
[23]
Determination of primary issue: whether to make the order
Section 9(2) of the Act provides that:
9 Determination of application for extended supervision order
…
(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.
In determining the statutory test I have had regard to the safety of the community as the paramount consideration and make my determination having had regard to the mandatory, non-exhaustive matters listed under s 9(3) of the Act and discussed above.
The meaning of "an unacceptable risk" in s 5B(d) and the principles which are to be applied were discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P), and subsequently applied by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [23]-[24] (citations omitted):
"23 As to the meaning of the phrase 'an unacceptable risk', the case law establishes the following:
1. What the court must find to be unacceptable is the 'risk' of the offender 'committing a serious [sex] offence if he or she is not kept under supervision'.
2. 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'.
3. While the HRO Act does not specify 'the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made', this 'must be so' because '[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made'.
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; in particular, its purpose in ensuring the safety and protection of the community.
5. The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk. Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO.
24 The 'unacceptable risk' inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate."
At the outset it must be accepted, as stressed by the defendant that he has only been convicted of one offence which constitutes a serious offence under s 4 of the Act, that being the index offence. Further that act was committed some years ago, in 2008, with the corollary that the defendant is, at 51 now significantly older. A difficulty for the defendant is the very serious nature of that offence. That the offence was committed in the context of a serious mental illness reduced the defendant's culpability for the offence. This was what led to the CCA reducing the sentence imposed at first instance. The defendant's culpability, however, is not to the fore in the present circumstances where I am concerned with the risk he poses. While "dangerousness" was relevant to the determination of sentence, its impact as necessarily was limited in the manner explained in cases such as Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 and see also R v Engert (1995) 84 A Crim R 67. Allsop P who gave the majority reasons in the CCA 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 seriousness of the offence, despite its age, is a particularly significant factor in this application. 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]. As I said in my judgment on the preliminary application, in the present context, a relatively low risk of the defendant acting in a manner similar to the index offence in 2008 would be unacceptable.
It is relevant to note that Allsop P in the CCA, found there were special circumstances for the purposes of increasing the proportion of the period spent on parole beyond the statutory norm. This was based on the "clear need for extended supervision" (at [99]). The defendant's progress in custody was, however such that he was not released until November 2020 with the result that his period of supervision on parole has been considerably shorter than what was envisaged by Allsop P. I am therefore faced with a situation of assessing risk in circumstances where the defendant has had significantly less supervision in the community than had been envisaged by the sentencing court. That of course does not decide the matter. I must determine the risk based on the evidence available to me, not that which was before the CCA. Nonetheless, the period the defendant has been in the community, in the context of the crime and its causes is an important consideration.
The plaintiff stressed that the defendant's risk factors extend beyond his mental health and include drug use and criminal associates. The defendant's history does include serious offences of violence prior to the onset of the serious mental illness. However, as Allsop P noted in the passage set out above, it is not clear that those matters are unrelated to an emerging illness. In any event, the age of those matters, and the defendant's current circumstances are such that I do not regard those matters as significant of themselves. There is, however, the potential for drug use to lead to a relapse in the defendant's mental health. That history is also reflective of aspects of personality which are likely to exacerbate the danger in the event the defendant's mental health deteriorates. This is consistent with Dr O'Dea's view that, in the defendant's case, "the risk of violence is considered to be directly related to relapse of a major psychiatric illness" with effect that the other concerns are somewhat subsidiary. In this regard I agree with the defendant's submission that the primary concern is the defendant's mental health.
It is also true, as the defendant points out that he has shown greater insight into his mental health in recent years. As noted above, in his evidence he acknowledged that he has an illness and it will require lifelong treatment. It also appears the significant fluctuations in his mental health in custody occurred at a time of limited insight into his condition.
The recent history of compliance must, however, be seen against the longer history. In referring to the period of compliance as "recent" I do not mean to understate the period. It is the fact that in July 2018 the defendant was described by a psychiatrist from Justice Health as presenting with "a sustained remission". Dr O'Dea indeed accepted that the period of approximately three and a half years was significant, as was his assessment of the defendant's motivation to deal with his illness. As to this motivation, it is plain from his response to the Community Mental Health Team he is accepting of treatment. As discussed above, he does not, however, accept the role of psychologists regarding the field as, at least in some respects, inconsistent with his religious beliefs. He is entitled to that view. It is not clear, however, how that view will impact on his long-term treatment. It also makes it more difficult to assess just how robust the defendant's current stability is. Ultimately the current period of stability must be assessed in the context of a longer history. That history was summarised by Mr Sheehan as follows:
"[The defendant's] violence history has been underpinned by antisocial sentiments, insecure personality, entitlement and pro-violence beliefs, all of which have been badly aggravated by a chronic relapsing major mental illness (paranoid schizophrenia) that emerged when Mr Devaney was aged in his thirties. Persecutory delusions have overlayed pre-existing psychopathology as a feature of his acts of expressive violence, including his index offence. He has a history of low insight and medication non-compliance in custody, which undermined his institutional adjustment and required several periods of assertive psychiatric care during his index sentence. He completed an intensive residential treatment program for violence, but responded poorly to treatment and is essentially pre-contemplative, upholding the view that his spiritual beliefs make such considerations unnecessary."
The recent period of stability must, in my view also be seen in the context of the defendant's circumstances. That is, for the vast majority of that time the defendant has been in a highly structured environment. He was in custody until November 2020. At the time he was released he was a medium security prisoner, with the result that he had not experienced the greater flexibility of a minimum security environment. That in turn, is in the context of his having been continuously in custody since his arrest in 2008. On his release he was subject to very stringent conditions pursuant to his parole order including electronic monitoring. It has only been during the period from the expiry of his parole on 7 November 2021 that he has been free of that very high level of supervision. During that time he has been subject to the conditions, and associated supervision, of the ISO. He has also had the support of the Community Mental Health Team with which he clearly has a good rapport.
I accept, as was stressed by the defendant, Dr Parker's evidence was that the risk of the defendant reoffending based on actuarial tools was diminished when compared to a similar cohort, simply on the basis that he has now been in the community for over a year without offending. Care must, of course, be taken when relying on statistics or actuarial reports. While potentially useful it remains essential to look at the circumstances of the particular case. Here, to an extent, what is being considered is the risk of a regression in the defendant's mental health. While the longer his health remains stable the greater the confidence one might have, it is necessary to consider the expert opinions in the particular case. It is, against that background that the following opinion of Mr Sheehan is pertinent:
"I regard [the defendant's] current stability to be somewhat fragile and I could not express confidence in his ability to maintain this over the medium term in the absence of formal supports. His insight remains unreliable, particularly with regard to appraising his own behaviour as it relates to risk. I would have ongoing concerns about antisocial associations and increase in psychotic symptoms, which could result in rapid escalation of risk. Given the relapsing nature of Mr Devaney's schizophrenic illness over the past 14 years, it would in my view be unrealistic to anticipate that there will be no further relapse. I do not believe it is safe to assume that Mr Devaney's current amenability to psychiatric care will endure over time, particularly in the event of escalation of symptoms."
Dr O'Dea while acknowledging the defendant's progress, said, in a similar vein:
"Whilst Mr Devaney has been in long term psychiatric treatment, including more recently under the provisions of a CTO in the community, and has expressed his desire and commitment to continue community psychiatric treatment on a voluntary basis through his GP; his psychiatric condition, psychiatric treatment needs and psychiatric risk management issues are longer term still, complex and significant and require specialised longer term psychiatric treatment and supervision."
Dr O'Dea in this context regarded the defendant's illness to be of a type that is:
"…often manifested by significant, long term and fluctuating problems with cognitive impairment, including at least fluctuating problems with insight and compliance; with affective disturbance; and with behavioural disturbance; that can be associated with long term general impairments and disabilities; and resistance to treatment."
This led Dr O'Dea to say:
"As such, Mr Devaney should continue in assertive, structured, supervised, co-ordinated and long term psychiatric treatment in the community. This treatment should be organised and implemented by a suitably qualified and experienced community forensic psychiatrist and community forensic mental health team. It should involve optimising his psychiatric medications, including from both efficacy and tolerability perspectives; continuing to assist in and ensure ongoing abstinence from alcohol and illicit substance use; and continuing to provide ongoing psychoeducation and psychosocial support. Involvement by the New South Wales, Justice Health and Forensic Mental Health Network, Community Forensic Mental Health Service, and the New South Wales Mental Health Review Tribunal via continuation of the Community Treatment Order, in this long term process would be appropriate."
Dr O'Dea went on to say that "successful implementation of the above community psychiatric risk management program would most appropriately manage [the defendant's] schizophrenic illness and associated risks, a community risk management program such as that [in the proposed ESO] could manage the defendant's risk of engaging in further violent offending behaviours; and his risk of committing a further serious violent offence".
It must be acknowledged that the risk in the defendant's case is attenuated given it is an assessment of the risk that his mental health will deteriorate followed by the risk that he will then commit a serious violence offence. That is, the risk I am assessing is somewhat contingent. Having regard to his progress, I regard the risk of this occurring, that is the commission of a serious violence offence, in a probability sense, as reasonably low. However, as discussed above, given the relatively short time the defendant has had any significant degree of freedom his stability has not been tested. While he is presently making good progress the vicissitudes of life are such that he will, inevitably, be tested. Moreover, when I have regard to the defendant's history, if the risk should manifest, the consequences are likely to be dire. Subject to the below, such a risk is unacceptable.
My reservation in relation to the above relates to Dr O'Dea's opinion that the defendant's "community psychiatric risk management program", by which I understand him to refer to the current engagement with community mental health, "would most appropriately manage" the defendant's mental health "and associated risks". The difficultly is that the current CTO is due to expire in July. Indications are that it may not be renewed. From that time, engagement with community mental health will be voluntary. It is also anticipated that such voluntary engagement will be phased out with care being passed to the defendant's GP. This is a credit to the defendant's responsiveness. But, while this is very positive evidence of progress, as I noted in the preliminary decision (at [80]), I must bear in mind that the legislative regimes, and their applicable tests, are different.
The result of the above is that I must assess the risk and I must do so having regard to the prospect that the current CTO will expire in July and will not be renewed. Dr O'Dea's view of the appropriateness of that treatment must also, of course, be seen alongside his view that long term treatment is required. In short, despite the apparent efficacy of the current regime, having regard to the defendant's limited period in the community and its supervised nature I do not regard reliance on the defendant's voluntary engagement with his Community Mental Health Team as sufficient to manage the risk.
I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. No submission was made that, should I reach this state of mind, there are matters that would lead me to exercise my discretion not to make an order.
For the reasons above, I am of the view that an order should be made. I turn now to the determination of the conditions.
[24]
Determination of secondary issue
Section 11(1) of the Act provides that an extended supervision order "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". An inclusive list of directions which may be given is then set out at s 11(1)(a) to (n).
Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.
The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act.
Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44]; citations omitted):
"Important principles to be considered in relation to the imposition of conditions are:
"(i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute;
(ii) in imposing conditions, the Court needs to strike a balance between competing considerations;
(iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty;
(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act;
(v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence;
(vi) conditions must not be unjustifiably onerous or punitive, 'nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision';
(vii) conditions 'must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice';
(viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible."
The matters referred to by Hoeben CJ at CL are to be seen in the context of s 3 of the Act. Section 3, after stating the primary objective of the Act in s 3(1) to be to provide for extended supervision of certain persons "to ensure the safety and protection of the community", provides in s 3(2) that another object of the Act is to encourage persons such as the defendant to undertake rehabilitation. That object is not exclusive of the primary object in s 3(1). As has been said many times, the protection of the community is enhanced by the successful rehabilitation of offenders. In this regard, for a person in the position of the defendant, the introduction of more stringent conditions than necessary or those currently in place may be discouraging and resultingly, impede his rehabilitation. This was the view expressed by Mr Sheehan, and I interpolate, led to the plaintiff amending its summons. To adopt the expression I used in Nikua (at [90]) it is undesirable that, even if an order is warranted, the result is "all stick and no carrot".
The plaintiff essentially accepted that the defendant has shown himself to be amenable to supervision, but that the limited period he has thus far spent in the community viewed against his history and the nature of the risk were such as to warrant all the conditions sought.
I turn now to a consideration of each of the particular conditions.
[25]
Conditions 1 to 3 - monitoring and reporting
These conditions are appropriate. They are a necessary foundation for the defendant's supervision.
[26]
Conditions 4 to 7 - electronic monitoring and schedule of movements
These conditions were not sought in the amended summons.
[27]
Conditions 8 to 29 - accommodation, place and travel restrictions; employment, finance and education; drugs and alcohol; non-association; and weapons
These conditions are largely appropriate. Some will, it is hoped, facilitate the defendant's progress, or in the case of the weapons conditions directly reduce risk. Others will facilitate monitoring of the defendant's progress, integration and well-being, while not being unduly onerous.
While the defendant is desirous of traveling to Queensland and has, I understand, been prevented from doing so by condition 13, that condition is mandatory pursuant to s 11(2) of the Act.
Condition 18 would require the defendant to provide information regarding his financial affairs as required by the DSO. Given the primary concern is the defendant's mental health and the defendant illness does not manifest in a way related to finances such as might be the case for someone who suffered, for example, manic episodes, the condition does not have obvious utility. Of course, unexplained expenditure might be an indication of drug use, however, if this is suspected, there are conditions relating to drug testing available. Moreover, the real concern with drug use is the potential for it to affect the defendant's mental health. In this regard there will be conditions relating to treatment and a condition requiring the defendant to allow his treating practitioners to share information with his DSO. I do not regard condition 18 as appropriate.
Conditions 8 to 17 and conditions 19 to 29 are appropriate and will be imposed.
[28]
Conditions 30 to 40 - access to the internet and other electronic communication
The intrusion encompassed by proposed conditions 30 to 40 must be acknowledged. In the present age, much communication takes place electronically. The monitoring of, or the ability to monitor, such communications is a significant imposition. A corollary of the role played by electronic communications in contemporary society that such communications they are likely to reveal an accurate picture of a person's associations, relationships, the state of those relationships and any attitudes held by a person that are shared with others. As has been indicated, in the present case, the concern with respect to the defendant stems from violence towards a former partner. That violence manifested after a period of long rumination after the relationship ended. While the defendant has been stable for some time, concerns remain with respect to his attitudes towards women. As previously noted, the defendant has not been truly tested during that period of stability.
Access to the defendant's communications will enable significantly greater insight into the defendant's progress. Similarly access to the defendant's internet activity. Such access is likely to give an indication as to times when a greater level of support may be required. This can then be facilitated with the defendant's treating health professionals. I am of the view that the majority of these conditions should be imposed.
Condition 33 requires the defendant to notify his DSO before using any device that "has the ability to access the internet". Such a condition is fraught, given the modern reality that many devices, including devices such as televisions, can be used to access the Internet. Making a payment in a café by credit card is likely to result in a use of a device with access to the internet. Additionally, given the other conditions in place, it adds little, if anything.
For the above reasons I will not impose proposed condition 33. I do, however, impose conditions 30 to 32, and conditions 34 to 40 which I regard as appropriate.
[29]
Conditions 44 to 42 - search and seizure
The powers of search and seizure are intrusive. There is, however, a sound basis for them, particularly having regard to the defendant's past interest in firearms. While I am inclined to accept the defendant's evidence that he has no present interest, at the centre of this matter is the potential for regression. Conditions 41 and 42 are appropriate.
Access to pornography, violent and classified material
Condition 43 is not sought in the amended summons.
[30]
Personal details and appearance
These conditions are not particularly onerous. They are also protective. I will impose conditions 44 to 47.
[31]
Conditions 48 to 55 - medical intervention and treatment
These conditions go to the core of the issue in this case. While I am mindful of the potentially negative effect of denying confidentiality between a treating professional and the defendant, the centrality of these conditions to the management of risk make these conditions appropriate.
[32]
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.
[33]
The term of the order
The plaintiff sought an order for three years. Given the long term nature of his condition and the potential for it, and the defendant's insight, to fluctuate, such a term is appropriate. I would hope that over this time the defendant's progress will continue and level of intrusion will, correspondingly, decrease.
[34]
Orders
I make the following orders:
1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), the defendant be subject to an extended supervision order ("the extended supervision order") for a period of three years from the date of the order.
2. Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, must comply with the conditions set out in the schedule to this judgment.
[35]
State of NSW v Devaney - Schedule of Conditions (187967, pdf)
[36]
Amendments
04 February 2022 - No amendment
07 February 2022 - Link to Schedule added
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Decision last updated: 07 February 2022