State of New South Wales v Dickson

Supreme Court of NSW|2019-08-27|Before: Johnson J

Judgment

JOHNSON J: By Amended Summons filed 13 August 2019 the Plaintiff, State of New South Wales, seeks orders against the Defendant, Kenneth Neville Dickson, under the Crimes (High Risk Offenders) Act 2006 ("HRO Act").
The Amended Summons seeks interim relief in the form of an order under s.7(4) HRO Act appointing qualified psychiatrists or psychologists to conduct separate examinations of the Defendant and to furnish reports on those examinations to the Court and an interim supervision order ("ISO") for a period of 28 days from today. In addition, the Plaintiff seeks an order restricting access to the Court file.
If interim orders are granted, then there will be, at a future time, a hearing of the Plaintiff's claim for final relief, being an application for an extended supervision order ("ESO") with respect to the Defendant.

The Preliminary Hearing

At the preliminary hearing, which has taken place today, the Plaintiff is represented by Mr Fraser of counsel and the Defendant is represented by Dr Hughes of counsel.
The Plaintiff has filed and served a substantial body of documentary material including affidavits and reports, Court documents, judgments and custodial records of a type commonly seen on applications of this type. It is not necessary to particularise the documents which have been admitted into evidence (and form part of Exhibit A) beyond those to which reference will be made in this judgment.

The Defendant's Present Status

The Defendant is 34 years of age. He is currently on parole for a number of sexual and violent offences committed in 2005, for which a lengthy term of imprisonment was imposed in 2007. More will be said about these offences shortly. The Defendant was released to parole on 8 November 2016 but his parole was revoked as a result of being charged with a further offence and failing to report to Community Corrections as directed.
On 20 June 2019, the State Parole Authority directed that the Defendant be released to parole once again. He was released to parole on 27 June 2019. His current sentence will expire by effluxion of time on 12 September 2019.

The Threshold Issues

Counsel for the Defendant accepts, for the purpose of the preliminary hearing, that certain formal aspects under the HRO Act are satisfied in this case. It was conceded, for the purpose of this hearing, that the Defendant is a serious sexual and violent offender as defined in ss.5 and 5A HRO Act. In addition, it was conceded that the Defendant is a "supervised offender" for the purposes of s.5I HRO Act. It was conceded, as well, that the Defendant was in his final nine months of custody or supervision for the purpose of s.6(1) HRO Act.
I am satisfied that those concessions are properly made and the evidence supports those particular requirements under the HRO Act in this case.

The Defendant's Offences

The Defendant has been convicted of serious sexual and violent crimes. It is appropriate to outline the details of those at this point, a matter which will have some relevance as stated later in this judgment. The 2001 Offences
In 2001, the Defendant committed a number of offences for which he came to be sentenced by her Honour Judge Payne at the Parramatta District Court on 19 June 2003. A total effective sentence of imprisonment for four years and six months with a non-parole period for three years was imposed for these offences. The offences for which he was sentenced at the Parramatta District Court arose from different incidents which took place on the evening of 17 August 2001, at which time the Defendant was 16 years of age.
In the first incident, the victim, a 25-year-old male, was approached by the Defendant in a laneway. Two co-offenders were also present. The victim was prevented from leaving by one of the co-offenders. The Defendant punched the victim in the face and the co-offenders then joined in the assault, which included the victim being punched and kicked whilst on the ground. The Defendant stole the victim's beanie before leaving. The victim sustained a displaced compound fracture of the mandible, requiring surgical intervention. That incident gave rise to an offence of aggravated robbery, for which the Defendant was sentenced.
The second incident occurred a short time after the first incident. A 17 year-old male and his 17-year-old female friend were approached by the Defendant and three co-offenders. As the young couple walked past the Defendant, he hit one of the youths on the back of the head twice with an open hand. The co-offenders then joined in punching the victim, who sustained an injury to his mouth. Money was stolen from the victim by a co-offender and the Defendant stole the victim's mobile phone.
The female victim tried to move away but was grabbed by the Defendant, who walked back to where the co-offenders continued to assault the male victim. The two victims were led against their will to an area at the back of some netball courts. Whilst there, the Defendant placed his hand under the female victim's shirt and rubbed his hands on her breasts. He demanded a kiss. When the female victim declined, the Defendant threatened to kill the male victim. The female victim then complied.
The Defendant then led the female victim away and told her that he intended to have sex with her and she would be killed if she refused. The Defendant took her over to the co-offenders and told them she would have sex with them. One of the co-offenders then grabbed the female victim and began pulling her, suggesting he had permission to have sex with her. The co-offenders committed a further offence against the female victim.
During the time that the Defendant had taken the female victim away, the co-offenders continue to assault the male victim, who was repeatedly punched, pushed and kicked. His head was hit on a netball post three or four times and he was thrown around the netball Court. The assault continued after the Defendant returned.
The female victim was eventually permitted to leave. The male victim suffered abrasions, a pneumothorax and pericranial oedema. He required intubation during treatment and ongoing treatment at the brain injury unit, as well as physiotherapy and occupational therapy.
That incident gave rise to offences of aggravated robbery, two counts of detain for advantage and offences of indecent assault and maliciously inflict grievous bodily harm with intent, for which the Defendant was sentenced.
A third incident occurred a short time later on the evening of 17 August 2001. The Defendant and his co-offenders came across a 50-year old male victim. The Defendant asked him for a cigarette before the victim was struck a number of times, falling to the ground unconscious or semi-conscious. The Defendant stole the victim's watch while the co-offenders took other items. One of the co-offenders then struck the victim a number of times to the head with a tree branch.
The victim was found by police semi-conscious. He required intubation during treatment and sustained a severe traumatic brain injury and facial fractures as well as amnesia.
The third incident gave rise to an offence of robbery involving the infliction of actual bodily harm, for which the Defendant was sentenced.
It is not necessary, for the purpose of this judgment, to set out the sentences imposed for individual offences. As noted above (at [12]), the total effective sentence imposed was imprisonment for four years and six months with a non-parole period of three years. An Offence in 2004
On 7 June 2005, the Defendant was sentenced at the Penrith Local Court for an offence of assault occasioning actual bodily harm committed on 19 November 2004. The offence was committed against the Defendant's then ex-partner. After the relationship between the young persons had ended, the Defendant attended the premises of the victim's sister and took the victim outside. They argued and the Defendant slapped the victim to the side of the face. The argument continued with the Defendant tackling her to the ground twice while they were walking.
A Magistrate sitting at the Penrith Local Court on 7 June 2005 dealt with the matter by way of a two-year good behaviour bond under s.9 Crimes (Sentencing Procedure) Act 1999, with the requirement that the Defendant undertake drug and alcohol counselling. The 2005 Offences
I come to the series of offences committed in August 2005, which have given rise to the sentence which remains on foot.
The Defendant was sentenced by his Honour Judge Berman SC at the Sydney District Court on 6 September 2007 with respect to those matters: R v Dickson [2007] NSWDC 186. The offences occurred on 2 August 2005 and 13 September 2005. These offences committed by the Defendant were very serious. So much is demonstrated by the opening words of his Honour Judge Berman SC in his sentencing remarks (at [1]): "Sometimes judges come across crimes of such heinousness that they are accurately described as chilling. Some of the crimes for which this offender is to be sentenced easily fall into that category. They involve the systematic abuse and even torture of a young man by this offender and other callous individuals."
The recital of the facts of these offences bears out his Honour's description.
On 2 August 2005, the Defendant (then aged 20 years) and four co-offenders (at least some of whom were juveniles and two were female) met the 16-year-old male victim at some local shops. The victim was invited to go to a nearby unit and consume alcohol. After some alcohol was consumed, the Defendant suddenly became aggressive and punched the victim to the face. The Defendant continued to kick and punch him. One of the co-offenders joined in the assault, kicking and punching the victim whilst he was on the ground.
After a break in the assault, the Defendant told the victim that he was going to kill him. The victim asked to leave, but was prevented from leaving. One of the co-offenders then fetched a knife and fork and began to stab the victim to the body. The Defendant began to stab the victim to the head, leg and hands with a pair of scissors and spat on him. Both the Defendant and one of the co-offenders continued to threaten to kill the victim.
The Defendant then forced the victim to kiss the Defendant's exposed penis and to perform acts of indecency on two of the co-offenders, who were brother and sister. After one of the female co-offenders left, the victim was forced to take down his pants and underpants under threat of death from the Defendant. One of the male co-offenders then put cream between the cheeks of the victim's buttocks before striking him over the head with a rolling pin, and then forcing the rolling pin into the victim's anus. The co-offender then "kicked" the rolling pin further into the victim's anus. The Defendant then took over, forcing the rolling pin into the victim's anus.
After some time, another of the co-offenders said that they should let the victim go. The Defendant said that if they let the victim go he would go to police. A fight developed between the Defendant and the co-offender, during which the Defendant punched the co-offender to the face.
The victim later escaped when one of the co-offenders took him outside into the rear yard. The victim was able to escape over a fence whilst the co-offender was urinating. The victim sustained multiple injuries, wounds and lacerations.
The offences committed on 2 August 2005 for which the Defendant was sentenced include maliciously wound in company, aggravated act of indecency, detain for advantage occasioning actual bodily harm, aggravated sexual assault in company and inflicting actual bodily harm (two counts) and malicious wounding. Offences of committing an act of indecency and malicious wounding in company were taken into account on a Form 1.
The offences committed on 13 September 2005 involve the Defendant and three co-offenders coming across the victim as he was getting something from his car. A co-offender approached the victim and asked for cigarettes. He then demanded money from the victim. The victim armed himself with a baton and ran after the group. The Defendant then pulled a "for sale" sign out of the ground, broke off the pole and ran at the victim, brandishing the pole. The victim ran back to his block of units. The Defendant stole items from the victim's bag which he had dropped outside his unit and shouted to him not to call the police or he would kill him.
The events on 13 September 2005 gave rise to charges of assault with intent to rob, using an offensive weapon with intent to commit an indictable offence and larceny.
His Honour Judge Berman SC noted that the Defendant had been drinking heavily at the time of both sets of offences, in particular the 2 August 2005 offences, and that he was on parole and subject to a good behaviour bond at the time of these offences. The Defendant was considered to be equally culpable with the other co-offender involved in the aggravated sexual assault of the victim. His Honour allowed a combined one-third discount for the Defendant's pleas of guilty and assistance to authorities.
The total effective sentence comprised imprisonment for 14 years commencing on 13 September 2005 and expiring on 12 September 2019, with a non-parole period of 10 years and six months expiring on 12 March 2016. A 2018 Offence
I mentioned earlier that the Defendant was released on parole. In November 2018, the Defendant was prosecuted for failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000. On 30 January 2019, he was sentenced in the Mt Druitt Local Court to seven months' imprisonment commencing on 19 December 2018, with a non-parole period of three months which expired on 18 March 2019.
On 8 November 2016, the Defendant was required to report to a police station within a specified time and he complied. He was told that he was obliged to report annually and he attended his annual reporting in November 2017. In November 2018, police made a number of unsuccessful attempts to contact the Defendant at his home address and by telephone. He was arrested on 4 December 2018, at which time a warrant had been issued due to the revocation of his parole.

Principles to be Applied at the Preliminary Hearing

The task which the Court is undertaking at this preliminary hearing requires consideration to be given to the relevant provisions of the HRO Act. I have already indicated my satisfaction for the purpose of the HRO Act that the Defendant falls within the technical requirements for an application to be made under the statute (at [9]-[10] above). I am satisfied that the relevant defined terms of "serious offence", "serious sex offence" and "serious violence offence" are applicable to this Defendant.
The Court is to consider whether the requirements for ordering psychiatric or psychological examinations of the Defendant and an ISO have been met. Those steps require consideration to be given to ss.7(4), 9 and 10A HRO Act.
The Court is exercising this task at a preliminary hearing. The Court is not required to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. Rather, the Court undertakes a task that has been described as being akin to applying the prima facie case test applied by Magistrates as part of committal proceedings (as they were before 30 April 2018), taking the Plaintiff's case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8].
The preliminary hearing procedure allows the Court to filter out unmeritorious applications at an early stage and, if interim orders are made, to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision: State of New South Wales v Manners at [9]. The Court is considering the unacceptable risk test in the HRO Act for this purpose. I will apply the approach outlined in State of New South Wales v KAS (Preliminary) [2019] NSWSC 924 at [16]-[29].
With respect to conditions of an ISO, the Court will have regard, as well, to the statutory scheme for conditions, which imposes positive obligations on a person so that the Court should ensure that there is a proper basis for conditions as part of an ISO: State of New South Wales v KAS (Preliminary) at [30]-[31].

Factors Under s.9(3) HRO Act

It is helpful to refer to the evidence under the statutory headings contained in s.9(3) HRO Act. This provision is to be applied on an application for an ESO and the legislation makes clear that the Court should have regard to these provisions as well at a preliminary hearing when considering the making of an ISO. Section 9(3)(c) - Assessments by Psychologists
Section 9(3)(c) requires the Court to consider the results of any assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the Defendant committing a further serious offence, the willingness of the Defendant to participate in any such assessment and the level of the Defendant's participation in any such assessment.
In this regard, the evidence includes a risk assessment report dated 3 July 2019 of Samuel Ardasinski, Senior Psychologist within the Serious Offenders Assessment Unit. The recommendations expressed in Mr Ardasinski's report are supported by Cherice Cieplucha, Acting Chief Psychologist in the Risk Management Programs Section.
Mr Ardasinski (who is highly experienced in the making of assessments under this legislation) assessed the Defendant as being in the moderate-to-high risk category for committing further sexual or violent offences relative to other male sexual and violent offenders. Mr Ardasinski considered that, in light of the Defendant's offending history, it is possible that any future sexual offence would approach the threshold of a serious sex offence as defined in the HRO Act and that the risk of the "potential for a serious violence offence (even in the absence of sexual violence) is also of concern".
Mr Ardasinski noted that the Defendant's violent and sexual offending was most directly linked to his use of alcohol. His Honour Judge Berman SC had noted that the Defendant was intoxicated at the time of the commission of very grave offences of violence and sexual offending in 2005, referred to earlier in this judgment.
Mr Ardasinski noted that the Defendant appeared to have avoided a return to alcohol use but had begun to use heroin and methamphetamine and had illicitly used buprenorphine in custody. Mr Ardasinski considered that there were clear, ongoing treatment needs in relation to the Defendant's substance abuse. He also considered that the Defendant's capacity for relationship stability was an outstanding treatment need and that, given recent allegations of domestic abuse, this may be directly linked to the Defendant's risk for violence.
Mr Ardasinski considered that the Defendant responded quite well to supervision and had developed support structures and coping mechanisms, although he did in time return to maladaptive coping through drug use and negative peer associations, withdrawing from his positive supports at times when he encountered various stressors in the community.
Mr Ardasinski conducted an actuarial static risk assessment with respect to the Defendant and these returned results of a high risk for both sexual and violent offending.
Dynamic risk assessment with respect to the Defendant led Mr Ardasinski to express the opinion, by reference to the Risk of Sexual Violence Protocol, that the Defendant was in the moderate/elevated risk category for repeat sexual violence. With respect to the Violence Risk Scale ("VRS"), the Defendant was in the moderate risk range for further violence offences.
Mr Ardasinski noted a number of dynamic risk factors in relation to sexual reoffending as being relevant. These were impulsivity - problems with intimate relationships as in the capacity for relationship stability, poor stress coping and negative peer influence within the context of drinking alcohol.
On the VRS assessment, the Defendant was assessed as being in the moderate risk range with dynamic factors relevant to the risk of violent reoffending including substance abuse, stability of relationships, being released to high-risk situations from a maximum security environment, interpersonal aggression, criminal peers, emotional control, impulsivity and compliance with supervision.
Mr Ardasinski considered that the most likely scenario for further serious sexual offending would involve the Defendant engaging in non-consensual sexual acts within an intimate relationship, or shortly after the breakdown of a relationship or seeking to engage someone new in sexual activity without their full consent. He considered that alcohol or other drugs may be involved as disinhibitors. He considered that a further instance of serious violence in the context of sexual reoffence was a less likely scenario.
As to a further serious violence offence, Mr Ardasinski considered that the most likely scenario would involve the Defendant engaging in thinking such as "What's the point? Fuck it ... you get triggered and then bang". He considered that it would likely involve the Defendant perceiving that he had been disrespected or retaliating for some perceived wrong. Mr Ardasinski noted that the very serious offences of 2 August 2005 were said by the Defendant to have arisen due to perceived slights against a female acquaintance by the victim.
Mr Ardasinski expressed the opinion that the Defendant's risks are capable of being managed in the community under an ESO and that there would be little therapeutic benefit to the Defendant participating in additional high intensity programming. Mr Ardasinski did consider the alternative of a Child Protection Prohibition Order. He observed, however, that an order of this type would provide more sporadic monitoring and less capacity to direct the Defendant to maintain abstinence from drug and alcohol use, which (in the opinion of Mr Ardasinski) was imperative to his risk management.
With respect to possible risk management strategies under an ISO or ESO, Mr Ardasinski noted that referral to a community based sex offender program provided by Forensic Psychology Services ("FPS") would be appropriate and the Defendant expressed a willingness to continue with this on release. In addition, Mr Ardasinski pointed to the importance of scrutiny of the Defendant's social contacts, unannounced home visits, drug and alcohol testing and electronic monitoring, scheduling and curfews.
Mr Ardasinski's report was written before the Defendant was released to parole on 27 June 2019. The affidavit of Cherice Cieplucha dated 8 August 2019 provides a more up-to-date account. It will be recalled that Ms Cieplucha supported the recommendations made by Mr Ardasinski in his report. Ms Cieplucha has confirmed that she continues to agree with the views contained in Mr Ardasinski's risk assessment report.
Other reports which arise for consideration under this statutory factor include the report of Aimee Press, Forensic Psychologist, dated 24 August 2017 with respect to the Defendant's participation in the CUBIT Program. Ms Press noted that the Defendant entered the program motivated by a desire to obtain parole and that he also wanted to understand himself and his offending. She summarised his general participation positively, noting that although matters took time, he was able to challenge his entrenched attitudes and develop a comprehensive understanding of himself, patterns relating to his offending and other problematic patterns such as substance use, self-defeating behaviours and emotional dysregulation.
Ms Press noted that when the Defendant felt disrespected or betrayed, he can detach from the rational ability to take the other person's perspective and is more likely to be cold, and at times callous, in his interactions. He could rationalise inappropriate behaviour on the basis of real or perceived injustices. Ms Press noted improvements in the Defendant's victim empathy, perspective taking and awareness of how the influence of substances, negative peers and negative attitudes had been blocks to empathy and perspective taking in the past.
The report noted that the Defendant had identified a number of risk factors including negative associations, antisocial attitudes and disrespect for authority, entitlement and vindictiveness/righteousness, unhealthy relationships (intimacy deficits), emotional suppression and detachment sex as coping, substance abuse, poor problem solving and low self-esteem.
Ms Press considered that the risk of sexual violence would be increased when those warning signs combined with the use of sex as coping, indicated by objectification of females, associating with a number of different women, making sexualised comments and telling himself he needs to relieve some tension.
Ms Press considered that the Defendant overall was a high risk of sexual reoffending. She made a number of recommendations regarding his reintegration and risk management, which included referral to community-based maintenance, referral to community-based substance abuse treatment and other steps.
An earlier report was that of Steve Henkelman, Psychologist, dated 27 August 2007. This report was prepared for the purpose of the sentencing hearing before his Honour Judge Berman SC. Mr Henkelman concluded that the Defendant was suffering from symptoms consistent with a major depressive episode and a panic disorder without agoraphobia. Mr Henkelman considered the primary treatment issue was alcohol counselling followed by anger and stress management and counselling to assist with issues relating to anxiety and depression.
An earlier report was that of Julie Taylor and Karen Chapman, Psychologists, dated 31 May 2004 for the purpose of the Defendant's earlier sentencing hearing. The authors of that report assessed the Defendant as being in the lower range for a risk of violence. Section 9(3)(d) - Assessments as to Likelihood of Reoffending
I turn now to the factor of s.9(3)(d), being the results of any statistical or other assessments as to the likelihood of persons with characteristics similar to those of the Defendant committing a further serious offence.
Mr Ardasinski detailed a number of statistical and other assessments concerning the Defendant. The LSI-R assessment relating to general and violent reoffending was undertaken in March 2018 and reviewed in January 2019. The LSI-R is an actuarial risk assessment targeting the risk of general and violent reoffending, although it omits numerous risk factors specific to sexual violence. The Defendant was assessed as having risks or needs falling in the medium range with a score of 32.
On 22 July 2019, the Defendant was reassessed on the LSI-R and was assessed as being in the medium-high range with a score of 34.
Mr Ardasinski assessed the Defendant using the STATIC-99R actuarial risk assessment tool. The Defendant's score was nine, being well above the average risk or Level IV-b. This is the highest risk category. The recidivism rates for high risk/needs sex offenders with the same score as the Defendant are between 32.6 per cent and 52.5 per cent over five years and 99.7 per cent of sex offenders in a routine sample would score below the Defendant's score, and individuals with the same score as the Defendant are estimated to have a recidivism rate over seven times higher than that of a typical sex offender.
Mr Ardasinski assessed the Defendant using the STATIC-2002R, another actuarial risk assessment tool. The Defendant's score was nine, putting him in the highest risk category. Individuals of the same score as the Defendant or higher are estimated to have a recidivism rate 6.9 times higher than that of a typical sex offender.
Mr Ardasinski undertook an assessment using the Violence Risk Appraisal Guide assessment tool. The Defendant's score on this was equal to or higher than the score of at least 90 per cent of the construction sample. Mr Ardasinski indicated that it placed the Defendant in eight of nine "bins". Fifty-eight per cent of violent offenders with a similar score reoffended within five years and 78 per cent within 12 years.
In 2016, on completion of the CUBIT Program, Ms Press assessed the Defendant using the STABLE-2007 assessment tool. It was noted that the Defendant scored 11 out of 26, which was classified as within the high level of stable dynamic needs. Combining the STABLE-2007 results with the STATIC 99R results led to an assessment which placed the Defendant in the high overall risk level, which would require a moderate-to-high level of intervention and/or supervision.
Using the VRS assessment scale, Mr Ardasinski placed the Defendant in the moderate risk range. Section 9(3)(d1) - Risk Management Report by Corrective Services NSW
I turn to the statutory factor in s.9(3)(d1), being any report prepared by Corrective Services NSW as to the extent to which the Defendant can reasonably and practically be managed in the community.
In this respect, a risk management report dated 25 June 2019 was prepared by Ms Danielle Ottaway and co-signed by Ms Kelli Grabham. This report was written prior to the Defendant's release to parole. It reported on his progress up to that point.
The report observed that periods of instability appeared to correlate with periods of increased stress affecting the Defendant. The report outlined the Defendant's risk factors and the management strategies that would be employed under an ISO or ESO and their limitations.
The management strategies included weekly interviews with the Defendant, field visits, including scheduled and unannounced home visits, management of third-party contacts, electronic monitoring, scheduling of movements and curfews, referral to FPS for psychological services, referral to alcohol and other drug services, alcohol and drug testing, restriction of contact with children under 18 years of age, and non-association and place restrictions.
The report noted that the risk assessment plan would be reviewed every two months. In this respect, further updated information was provided in the affidavit of Ms Grabham dated 8 August 2019. Section 9(3)(e) - Treatment and Rehabilitation Programs
I turn to the statutory factor s.9(3)(e) HRO Act concerning treatment or rehabilitation programs and the Defendant's participation in such programs.
The Defendant completed the CUBIT Program in August 2016. He is said to have use the period of treatment constructively and to have developed insight. The Defendant completed the Getting SMART Program in 2009 and the Managing Emotions Program in 2013. He undertook some of the EQUIPS-Addiction Program in 2019 attending nine of the 20 sessions, however, his classification was regressed and he was transferred before he was able to complete the remaining sessions. Section 9(3)(e1) - Options that Might Reduce the Likelihood of Reoffending
I turn to s.9(3)(e1), being available options that might reduce the likelihood of reoffending.
The evidence indicates that, if released under an ISO or ESO, the Defendant would be required to engage in maintenance with FPS by way of psychological services and would also be referred to drug and alcohol counselling. Section 9(3)(e2) - Likelihood Defendant Would Comply with ISO/ESO
I turn to s.9(3)(e2), the likelihood that the Defendant will comply with an ISO or ESO.
The Defendant has in the past initially complied with supervision. However, after a period of compliance, he has either reoffended or disengaged from supervision or relapsed into drug use. Section 9(3)(f) - Compliance Under Previous Orders
I turn next to the related topic under s.9(3)(f), being the level of the Defendant's compliance with any obligations under previous orders, including parole.
Following the sentences imposed by her Honour Judge Payne, the Defendant was released to parole on 17 August 2004. He was noted to have initially responded satisfactorily to supervision and attended drug and alcohol counselling and appointments as directed.
On 7 June 2005, the Defendant was convicted of assault occasioning actual bodily harm and was placed on a s.9 bond, as outlined earlier. The Defendant subsequently failed to report and was not able to be contacted by his supervising officer. It was during this period that he committed the very serious offences before he was rearrested in September 2005.
As mentioned earlier, the Defendant was released to parole in November 2016 with respect to the sentences imposed by his Honour Judge Berman SC. His progress was considered initially to be satisfactory. However, he relapsed into illicit drug use in 2018, failed to report as directed and was not attending the SMART Recovery Program, despite stating that he had been.
On 1 November 2018, Community Corrections recommended revocation of his parole. After that, a number of attempts were made to contact the Defendant, who reported as directed on 15 November 2018 and indicated he intended to re-engage with his methadone provider and recommence treatment. He was directed to report again the following week but failed to do so.
On 4 December 2018, the Defendant was arrested and charged with assault occasioning actual bodily harm of his ex-partner, the mother of his daughter. He was alleged to have grabbed her arm during an argument. This charge was withdrawn after the complainant withdrew her support for the prosecution.
On 5 December 2018, the Defendant was charged with failure to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000, as he failed to attend his annual review in 2018. On 5 December 2018, the State Parole Authority revoked the Defendant's parole effective from 4 December 2018.
As mentioned earlier, the Defendant was once again released to parole on 27 June 2019 and he has been subject to a number of additional conditions including not using prohibited drugs. Since that time, he appears to have been generally complying with his parole obligations and has reported as required.
On 26 July 2019, the Defendant reported to his supervising officer that he used "Ice", following a number of issues relating to Family and Community Services preventing him from seeing his daughter. A drug test was undertaken, which returned a positive result for methylamphetamine. Although this constituted a breach of a condition of parole, a decision was made not to take breach action in the circumstances. Section 9(3)(g) - Compliance with Child Protection Legislation
I turn to the statutory factor in s.9(3)(g) being the level of the Defendant's compliance with obligations under child protection legislation. In this respect, the Defendant has a single conviction for failing to comply with his obligations under the Child Protection (Offenders Registration) Act 2000. Section 9(3)(h) and (h1) - The Defendant's Criminal History and Views of Sentencing Courts
I turn to the statutory factor in s.9(3)(h), the Defendant's criminal history together with the factor in s.9(3)(h1), the views of sentencing Courts.
I have outlined earlier offences in the Defendant's criminal history. The offences of particular concern are the very grave offences of violence and sexual offences committed in 2005 for which he is still serving a sentence. The earlier offences dealt with by her Honour Judge Payne were themselves serious enough. It must be borne in mind, as well, that the 2005 offences were committed whilst the Defendant was on parole and subject to a good behaviour bond.
The views of sentencing Courts include the observation by his Honour Judge Berman SC, which I mentioned earlier (at [27]). His Honour described the offences in a way which was entirely appropriate. His Honour made findings concerning the objective seriousness of those offences, which culminated in the substantial sentence imposed, which was again entirely understandable given the magnitude of the Defendant's offending. Section 9(3)(i) - Other Relevant Information
Section 9(3)(i) requires the Court to consider any other information available as to the likelihood of the Defendant committing further serious offences. In this respect, the Defendant has two institutional behaviour charges for violence established against him in 2019, one for assault on 5 March 2019 and another for fighting on 22 March 2019. Section 9(2) - Safety of Community the Paramount Consideration
In approaching the application, I bear in mind s.9(2), which states that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.

Decision on Application

Counsel for the Plaintiff submitted that, in all the circumstances, there is a clear and proper foundation for the Court making the orders sought at the preliminary hearing. Particular emphasis was placed on the report of Mr Ardasinski and his risk assessment, which pointed to a medium-to-high risk of committing both sexual and violent offences and the earlier assessment contained in the report of Ms Press after the CUBIT Program.
As noted earlier, counsel for the Defendant has not made any submission resisting the application for interim orders. That position is understandable.
I have had regard to the various statutory factors outlined so far in this judgment and the evidence which relates to them. The issue for the Court at this stage is a threshold one involving the application of the principles referred to earlier. I am well satisfied that an ISO should be made in this case, together with associated orders for psychiatric or psychological examination.
The offences for which the Defendant is still serving a sentence were very grave offences indeed.
The Defendant has been in custody for an extended period of time since the imposition of those sentences. When released on conditional liberty, his performance has been chequered. There are significant risk factors at play. The Court should keep in mind that if the Defendant happens to offend again by way of sexual or violent offending, then any prospect of repetition of what occurred (in particular in 2005) raises significant concerns for community safety. In saying that, of course, I am not attempting to predict that that is what will happen with the Defendant, who has in a number of ways shown progress in recent times.
However, it is clear that the prospect of the Defendant being in the community, without supervision, when his sentence ends in mid-September 2019 is a risky one indeed. There is a proper foundation for the making of an order by way of an ISO and associated orders for psychiatric or psychological examination.
The conditions as originally proposed by the Plaintiff with respect to any ISO were controversial in two respects. Submissions made on behalf of the Defendant proposed an alternative formula concerning those areas, which the Plaintiff accepts as being appropriate. Accordingly, there is no current controversy as between the parties as to any of the proposed conditions.
It remains, of course, a matter for the Court to determine whether these conditions are appropriate in the circumstances of the Defendant's case, in light of the evidence and having regard to relevant statutory considerations. I am satisfied that the proposed conditions are appropriate in the circumstances of the case. The conditions will operate for 28 days from today, subject to any application to extend them if that step is required, given the future course of the proceedings.

Orders

I make Orders 1, 2, 3, 4, 5 and 6 in accordance with the Short Minutes of Order, which I have signed and dated today. Those orders are as follows: 1. Pursuant to s. 7(4) of the Crimes (High Risk Offenders) Act 2006: 1. two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by a date to be fixed; and 2. the Defendant is directed to attend the examinations in order (1)(a). (2) Pursuant to s.10A Crimes (High Risk Offenders) Act 2006, the Defendant is made the subject of an interim supervision order for a period of 28 days. (3) Pursuant to s. 11 Crimes (High Risk Offenders) Act 2006, the Defendant is directed to comply with the conditions set out in the schedule for the period of the interim supervision order. (4) The matter is listed for directions before the List Judge on a date to be fixed. (5) Access to the Court's file by a non-party in respect of any document shall not be granted without prior notice to the parties of the non-party's application for access, and without the leave of a Justice of the Court. (6) Liberty to restore on three days' notice.

Schedule of Conditions - 27 August 2019 (45.6 KB, docx) 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: 29 August 2019

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cases Cited (4)

Cited By (5)