State of New South Wales v Devaney

The statutory conditions

1. To commence with what does not appear to be in issue, I am satisfied of the statutory preconditions mandated by s 5B(a)-(c). Only the central consideration specified in paragraph (d) of s 5B is in issue today. There is no question in this case that Mr Devaney is an offender who has served a sentence of imprisonment for a serious violence offence to which I will return. There is no question that he is a "supervised offender" within the meaning of s 5I inasmuch as the ESO made by Dhanji J remains in force. It is also not in question that the requirements of s 5I more generally, bearing in mind the degree of ambiguity in those provisions, is also satisfied. As I have said, the formal requirements of s 6 are also satisfied.
2. The central condition to which I have referred is expressed by s 5B(d) in these terms: "The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if --- [...] (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."
3. I should say immediately that I am not conducting the final hearing, as is obvious. It is not necessary for me to form any opinion about any matter or to make any finding of necessary fact, or opinion, to a high degree of probability. My role is much more technical. It requires me, as I have said, in terms of s 10A(b) and s 7(4) to consider whether matters alleged (not proved) in the supporting documentation, not supporting evidence in a strict sense, would, if proved at the final hearing, justify the making of an ESO.
4. It is not my role to attempt to predict the outcome of the final hearing in any way. My role is strictly a legal one which has been compared in previous authorities to the process in a criminal proceeding of deciding whether a prima facie case has been made out. To put it another way, it is broadly similar to the process a court is involved in on an interlocutory application for an interim injunction as to whether the plaintiff has a sufficiently arguable case to make the injunction.
5. As I have said, the power conferred in the Court by s 10A is discretionary. But given the objects of the legislation set out in s 3, it would be a rare case in which a court would exercise the discretion to refuse the application after the preliminary hearing if satisfied that the matters alleged in the documentation would, if proved, including to the necessary high degree of probability applicable at a final hearing, justify the making of an ESO. The primary object of the Act is vital. It is in the following terms (s 3(1)): "The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community."
6. I also bear in mind that in discharging my legal function after this preliminary hearing that the opinions of the experts appointed under s 7(4) will at the final hearing be very salient aspects of the evidence and that that material is not yet available to me, obviously enough. Although, as this is a second application, I have had the opportunity of considering what Dhanji J made of the opinions of the experts appointed under s 7(4) for the purpose of the first application.

Serious violence offending - the index offending

1. The index offending in this case was undoubtedly a serious violence offence. There is no issue about that. On 3 June 2011 the defendant was convicted and sentenced in the District Court on his plea of guilty to a term of imprisonment for three serious offences, but the most significant of them, and the focus of this application, was an offence contrary to s 29 Crimes Act 1900 (NSW) of shooting with intent to murder. The victim of that offence was a woman with whom the defendant had been previously in a long-term relationship. Quite apart from that offending, to which the defendant pleaded guilty, the other offences, which were related offences, were in their own right serious offences under the Firearms Act 1996 (NSW). After a successful severity appeal to the Court of Criminal Appeal, the sentence passed at first instance for the index offending was reduced from 14 years to 12 years and the non-parole period from 10 years to 8 years.
2. What is clear from the decision of the Court of Criminal Appeal (see Devaney v R [2012] NSWCCA 285) is that, first, Mr Devaney had a criminal history previous to the index offending, including significant crimes of violence extending to armed robbery, and, secondly, most significantly for the purpose of the decision of the majority in the Court of Criminal Appeal, and for the purpose of these applications under the Act, was that at the time of the index offending Mr Devaney was suffering from a then yet to be diagnosed serious psychiatric condition of Schizophrenia.
3. I should interpolate that I was a member of the Court of Criminal Appeal and I dissented from the majority decision allowing the appeal. My role in the matter was disclosed by me, and in any event well known, to counsel and to Mr Devaney. No objection was raised to me determining this preliminary application.
4. In the majority judgment given by the then President, Allsop P (as the Chief Justice then was) his Honour made the following very pertinent observation (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.
5. His Honour also observed that Mr Devaney was a potentially dangerous man if he did not continue on his medication (at [84]).
6. In deciding that he was satisfied to the statutory high degree of probability that Mr Devaney posed an unacceptable risk of committing another serious offence if not kept under supervision under an ESO, Dhanji J at expressed himself in the following terms (Final Judgment at [76]): "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. 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. 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." (citations omitted)

Risk assessment report

1. I think it is important to bear that central finding made by his Honour in mind. Moreover, there was no issue taken before me - there hardly could be, of course - that his Honour's approach to this legal question was in any way erroneous. It is sufficient for me to observe for present purposes that Mr Patrick Sheehan, a consultant psychologist who was one of the s 7(4) experts, after application of the statistical and professional judgment tools usually applied by persons with his qualifications in this area of discourse, was satisfied that the risk of violent offending was in the medium range if Mr Devaney was not kept under an ESO.
2. Dr Jeremy O'Dea, a consultant psychiatrist who was the other s 7(4) expert, referred both to Mr Devaney's mental illness and substance abuse, the former of which he described as a severe chronic schizophrenic illness. He was of the view that the index offending was directly related to that illness and Mr Devaney's substance abuse at the relevant time. While by the time Dr O'Dea was asked to express those opinions in the early part of 2022, Mr Devaney had been mostly compliant with anti-psychotic medication, Dr O'Dea's evidence was to the effect that, notwithstanding that his illness had responded well to treatment over his years in custody and under supervision, that treatment itself had been complicated by significant problems with Mr Devaney's insight into his illness and with a certain hesitation or reluctance (my expression) in relation to compliance. Dr O'Dea was of the view that the history demonstrated that Mr Devaney's condition deteriorated as did his behaviour in periods when he was non-compliant with the medication. Dr O'Dea considered it reasonable to consider that the defendant's risk of engaging in further violent offending behaviour in the community in the long-term may be significantly high, particularly if he were to become non-compliant with psychiatric treatment and/or resume illicit substance abuse (my emphasis).
3. When the order was made, the risk assessment report had been provided by Dr Richard Parker who had a long association with Mr Devaney's treatment while he was in custody and under supervision in the community. Dr Parker assessed the risk of committing a serious violent offence if Mr Devaney was not kept under supervision under an ESO to be in the high range by reference to the application of those usual statistical and professional judgment tools.
4. As I have said, the current report relied upon is that of Mr Ardasinski who is himself a very experienced psychologist himself with Correctives NSW. Mr Ardasinski considered from his review of the documentation made available to him that Mr Devaney's "express level of insight into his mental health has oscillated wildly".
5. An issue that received a degree of attention from counsel for good reason was that in the period of early to mid-2024 a trial of taking Mr Devaney off his anti-psychotic medication undertaken by his community health team administering a Community Treatment Order ("CTO") to which he is subject and with the co-operation of the ESO team, had been, in my assessment, unsuccessful. Mr Devaney's symptoms after a period of reduction and withdrawal of the medication worsened. His paranoid ideation returned, and he displayed aggressive - albeit without actual violence - behaviour such that it was necessary in the opinion of the treating professionals to return him to his regime of depot anti-psychotic injections under the CTO.
6. Dr Parker was involved in that trial and, although Dr Parker had given evidence at the preliminary hearing before Dhanji J which was favourable to Mr Devaney, he became concerned about the deterioration in Mr Devaney's condition in his contact with him during the trial period. There was a significant flare-up, as I understand the record in the documentation, in his psychotic symptoms, including a re-appearance of his grandiose religiosity and to me it seemed potentially significant that Mr Devaney had taken to communicating about these matters by text message with Dr Parker in the middle of the night. This may have been significant symptomatically, given it is ordinarily a period when people are at rest. But persons afflicted by psychotic illness often experience the agitation associated with the disease worse at night.
7. Mr Ardasinski administered the familiar statistical and professional judgment tools to Mr Devaney's case and it is fair to say, as Mr Wilcox has strongly submitted on behalf of Mr Devaney, that Mr Ardasinski's opinion does seem to demonstrate a degree of improvement in Mr Devaney's condition while he is compliant with medication and some reduction in the risk that he had previously been assessed to pose.
8. Having said that, the result on the actuarial and professional judgment testing remains at a medium level and one needs to bear in mind, as I have said, Dhanji J's analysis I have referred to at [20] above. Although certain of the dynamic factors that had previously been identified seem to have diminished materially, there were still core (my expression) concerns in his presentation and, to my mind potentially when one considers the preliminary nature of my task, central to the question of risk assessment. As Mr Wilcox pointed out in his written submissions, a number of what were described as Mr Devaney's secondary factors had either resolved or were quiescent. Mr Ardasinski regarded the primary risk factor as a future possibility and not a current issue as Mr Devaney is compliant with his depot medication. Mr Wilcox relied upon this passage from paragraph 26 of the report: "The evidence suggests that the 'subsidiary' risk factors (of substance abuse, weapons possession, links to criminal associates and anti-social attitudes) are currently either absent, resolved or at the very least quiescent. The major consideration in Mr Devaney's future risk is therefore whether his 'lack of insight' and potential 'non-adherence with psychological therapies and medication' (citation omitted) in the absence of an ESO (even if a CTO continues) creates an unacceptability of risk to warrant a further order under [the Act]. As highlighted above, there were many other risk issues present when Mr Devaney shot his ex-girlfriend in 2008 - none appear currently of concern, and the critical one (of unstable mental health) is only a future possibility and not a current issue since Mr Devaney remains medication compliant (albeit begrudgingly) on his reviewed depot medication dose."
9. Mr Ardasinski went on, however, to express the opinion that "Whether these two risks - Mr Devaney's poor insight into his continuing need for antipsychotic treatment, and his tendency to intimidate and threaten people when he is feeling aggrieved - are 'necessary [or] sufficient for a determination of high risk' (citation omitted) within the context [of the Act] is ultimately a matter for the Court." And, of course, it is a matter for the Court to determine after the final hearing. It would seem to me, notwithstanding the positive aspects of Mr Ardasinski's report and in particular the reduction of some risk factors, that what Mr Ardasinski says is still capable of persuading a court after the final hearing to the high degree of probability required that the risk is unacceptable.

Assessment of risk

1. I say that for these reasons. It is quite clear from the material to which I have been taken, as is not uncommon, if I may say so, in the case of sufferers of schizophrenia, that Mr Devaney has an ongoing belief that he is not suffering from the condition or that the medication he is required to take is unnecessary. Although there was a trial period of him being taken off the medication in 2024, it was not necessarily generated by those responsible for his treatment. It is clear that it was a trial that Mr Devaney himself was keen to undertake in the belief that the treatment was unnecessary.
2. Moreover, apart from his poor insight, the evidence that he has a tendency to intimidate and threaten people when he is feeling aggrieved which comes out of the Offender Integrated Management System ("OIMS") notes to which I was taken, is of itself a significant matter informing risk. It should also be borne in mind that in his judgment Allsop P referred to the need, given the potential of Mr Devaney's disease to make him dangerous, for protection of the community to be factored into the appropriate sentence that was to be passed for the index offending.
3. When one takes these factors together with the consideration that statistically and in terms of professional judgment, Mr Devaney still produces a medium risk assessment, even if that risk is more directed to violence generally rather than to the risk of serious violence as defined in the Act, I am of the view that this body of evidence if proved at the final hearing, is legally capable of justifying a finding that Mr Devaney continues to constitute an unacceptable risk in the statutory sense even to a high degree of probability.
4. These, of course, are not the only factors. In matters of this type, it must be recognised that the criminal history itself is a significant factor. It is a static factor as it is put in relation to the statistical and professional judgment tools, but its significance as an important factor when considered in conjunction with the dynamic factors should not be underestimated.
5. Mr Wilcox also placed some reliance upon the contents of the affidavit of Mr John Banton affirmed on 4 December 2024. Mr Banton is a High Risk Offender Applications and Operational Governance Officer for Extended Supervision Order Teams within the Correctives NSW. He has been in that role since 6 February 2023. It is obvious also from his curriculum vitae, as relayed in the affidavit, that he has considerable experience in the supervision of offenders in the community.
6. The aspect of his affidavit referred to by Mr Wilcox, quite legitimately, was that notwithstanding some unsatisfactory aspects of Mr Devaney's performance under the ESO, the general view within Correctives NSW as at 11 January 2024 when the ESO completion report was finalised was that no further order should be sought. This continued to be the opinion prevailing within the ESO team, notwithstanding that they were aware of the trial of the withdrawal his medication and the resulting decline in Mr Devaney's mental health and behaviour. While those matters were also of concern, those reviewing the matter did not feel it met the threshold for a reconsideration at that time.
7. It was only much later after a further review at the end of October 2024 that a change of opinion occurred. The change of opinion was based upon Mr Devaney's continued lack of insight into his own risk factors and his inability to manage his mental health on his own. Mr Wilcox's point was that apart from what happened during the trial, there was no real change in those matters and that the change of heart was not readily explicable. Counsel, of course, recognised that the views of the ESO team or any individual member of it are not really to the point, because it is the responsibility of the Court to decide whether, once its jurisdiction was properly invoked, a further ESO should be made. However, his argument was that those considerations tended to demonstrate that, when looked at as a whole, the evidence in the case did not justify a finding under s 10A(b) or s 7(4).
8. It is my own opinion that while I can see that there is room for perhaps significant argument about whether a final order should be made, the considerations to which I have referred as well as the other s 9(3) historical matters referred to by Dhanji J remain capable of supporting a further ESO if proved at the final hearing.
9. It must be borne in mind, given the centrality of Mr Devaney's schizophrenia to his risk profile, that his continuing lack of insight and his desire to discontinue treatment are very significant factors. It may be that at a final hearing some consideration would be given to whether the continuation of an CTO under the Mental Health Act 2007 (NSW) would provide a sufficient measure of protection of the public, but to my mind that is a matter for the final hearing and not for me.
10. Speaking for myself, I am of the view that the various aspects referred to by Mr Aitken in the OIMS notes of Mr Devaney continuing to speak in more or less positive terms about his previous criminal associations with outlaw motorcycle clubs, and, in particular in my mind, his ongoing fixation in relation to the victim of the index offending, may be matters of significant weight which would add to the risk profile, as I have put it, after a final hearing.
11. Now, it is true that the frequency of the relevant references in the OIMS notes was greater at the start of the period of the ESO than at the end of it, but recent evidence indicates that Mr Devaney has pictures of persons with whom he was previously associated still hanging in his home and that in recent comments about the victim of the index offending, he has continued to make comments blaming her for his egregious conduct. I make these comments because they do demonstrate the lack of insight on his part into the nature of his disease and the risk it presents to others. At least, it is evidence capable of supporting such a conclusion in conjunction with other evidence at the final hearing.
12. Mr Wilcox also read the affidavit of Ms Laura Campbell, a law graduate employed as a legal clerk at Mr Devaney's solicitor's office. The main purpose of Ms Campbell's affidavit was to annex positive references largely from Catholic clergy and from Mr Devaney's parents about his pro-social activities while under the current ESO. While some legitimate criticism of the expression of some matters were made by Mr Aitken, I am prepared to accept that his pro-social involvement is to his credit and may be a factor to be weighed with the other factors Mr Ardasinski has identified as representing a reduction in risk. However, there is a limited extent to which I can take these matters into account at this preliminary hearing.

Decision

1. The question is, as I have said, whether the matters alleged in the documentation relied upon by the State support a particular finding at this preliminary stage and I am of the view that they do. For the reasons I have rehearsed, I would not exercise my discretion to refuse to make an ISO and I will make an ISO in due course.
2. I turn then to the conditions to which the ISO should be subject. I expressed a preliminary view for counsel's benefit that I was rather of a mind, notwithstanding some concerns and some tension, that given the regime adjudged appropriate by Dhanji J had continued in a satisfactory and indeed successful manner since his Honour pronounced his orders, that it should continue at least in the interim until the s 7(4) reports are available and a judge has had the opportunity of considering the whole of the evidence led at the final hearing. Having heard counsel in relation to the matter I am of the view that the current regime ought to continue only with such modifications as may be seen to be for Mr Devaney's benefit or to which he, through his counsel, has agreed.
3. In particular, I am not of the view given that the overall view of those responsible for administering and assessing the ESO is that there has been some modification of his risk profile favourably so, and that, notwithstanding concerning aspects, his compliance has been regarded as satisfactory, I would impose at this stage electronic monitoring or the need for scheduling. I find Dhanji J's reasons in that regard appropriate. I do appreciate that the risk management report has set out cogent reasons why a different decision may be made. But I am not persuaded that at this preliminary stage there should be any change in the regime to which Mr Devaney has been subject with which he has very largely complied and in respect of which his compliance has been regarded as satisfactory.
4. So far as those matters which seem to favour Mr Devaney are concerned, I considered that the amendment to condition 23 was effectively beneficial in as much as in the event that Mr Devaney forms a new intimate relationship he should be given the first opportunity to disclose his criminal history to the other person before that obligation can be taken up by the DSO. I am also of the view that condition 29 remains satisfactory as does condition 38 which essentially tidy up conditions that Dhanji J considered to be appropriate.
5. It does seem to me that the ubiquity of electronic communication applications of itself is a reason why there should be supervision of the use of them by Mr Devaney given the risk, and I would order those conditions as reformulated. Condition 34 relates to the deletion of data from devices. Without delving into it greatly at this preliminary stage, I can understand the practicalities of Mr Devaney's desire to be able to delete things to make more space as he goes along. However, supervision of his use of electronic communications could effectively be "negatived" if a person had the opportunity, as it were, to cover his tracks before legitimate supervision by a DSO could take place and I would permit that condition.
6. So far as condition 48 is concerned, I am told that amendments have been agreed between the parties and I will not interfere with that agreement but will make a condition in accordance with the agreement.
7. I propose to make orders in accordance with prayers 1, 2 and 5 of the summons of 4 December 2024. So far as prayer 2(c) is concerned, the conditions should be as I have indicated in these reasons. I direct the parties to bring in a form of short minute of order giving effect to my reasons and my stated intentions in relation to the form of orders.

Orders

1. I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. appointing two qualified psychiatrists or psychologists (or any combination of 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 by the Court; and 2. directing the defendant to attend those examinations. 1. An order: 1. pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 3 February 2025 (the "ISO"); and 2. pursuant to s 10C(1) of the Act, that the ISO be for a period of 28 days. 1. An order directing the parties to bring in short minutes of order giving effect to my reasons by midday on Wednesday 18 December 2024. The form of orders and conditions may be lodged electronically with my chambers both in PDF and soft copy. 2. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

Amendments 18 December 2024 - Order 2(c) was deleted on coversheet and paragraph 49. 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: 18 December 2024