State of New South Wales v DK

Supreme Court of NSW|2018-12-05|Before: Fullerton J

Solicitors: Crown Solicitor of New South Wales (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/293380

Judgment

HER HONOUR: By Summons dated 25 September 2018, the State of NSW (the plaintiff) has applied pursuant to ss 5B, 5I and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for an order that the defendant ("DK") be subject to an extended supervision order (ESO) for a period of two years from the date of that order. An order is also sought pursuant to s 11 of the Act that DK be directed to comply with a range of proposed conditions, itemised in Schedule A annexed to the Summons, for the period of the ESO.
At the preliminary hearing convened in accordance with s 7 of the Act, the plaintiff sought an order that DK be subject to an interim supervision order (ISO) pursuant to s 10A of the Act to date from 9 January 2019 for a period of 28 days, and that he be directed to comply with the same conditions sought in respect of the ESO for the duration of the ISO.
The plaintiff also sought an order pursuant to s 7(4) of the Act for the appointment of two qualified psychiatrists and/or registered psychologists (the experts) to conduct separate examinations of DK, and to furnish reports to the Court on the results of those examinations.
At the preliminary hearing DK accepted, through his counsel, Ms Graham, that he met the statutory criteria in ss 5A and 5B of the Act to invoke the jurisdiction of the Court, and that the plaintiff's application for both the ISO and ESO was made within the period specified in ss 5B(c) and 5I of the Act. He also acknowledge that the plaintiff's application was made within nine months of his sentence expiring in compliance with s 6(1) of the Act, and that the documents identified in s 6(3) of the Act have been filed in support of the Summons.

The Statutory Framework

While the ultimate question for determination at the final hearing of the Summons is whether the Court is satisfied, to a high degree of probability, that DK poses an unacceptable risk of committing another serious offence if not kept under supervision, on the preliminary hearing it is not for the Court to assess the weight of the supporting documentation or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation (and such material as has been tendered by a defendant) and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO. Although that exercise has been described as likened to the application of a "prima facie case" test, the more accurate formulation, consistent with the test in s 5B(d), is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That obliges the plaintiff to allege certain facts which, if proved, would lead to a conclusion that the making of an ESO is justified.
It is also clear that in undertaking that evaluative task, the objects of the Act must be kept in mind. The objects of the Act contained in s 3 are as follows: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
I also note that s 9(2) of the Act, introduced by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) obliges the Court to give primacy to the safety of the community.
Finally, it is well settled that the test to be applied at a preliminary hearing for the making of an ISO is generally regarded as "not a stringent one" (See generally State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 and State of New South Wales v Sancar [2016] NSWSC 867.

The evidence

The evidence relied upon by the State as comprising the supporting documentation upon which the issue of the ISO is sought is as follows: 1. Affidavit of Tram Nguyen dated 25 September 2018; 2. Affidavit of Tram Nguyen dated 26 October 2018; 3. Affidavit of Tram Nguyen dated 30 November 2018.
DK tendered the following material: 1. Affidavit of Catriona Cotton dated 9 September 2018; 2. Affidavit of Catriona Cotton dated 4 December 2018.

The preliminary hearing in summary

In the outline of submissions, Ms Graham of counsel notified the Court that DK opposed both the making of the ESO and the ISO on the basis that the material relied upon by the plaintiff to support the making of the final orders would not satisfy the Court, to a high degree of probability, that he poses an unacceptable risk of committing another serious offence if not kept under supervision and that the summons should be dismissed for that reason. It was counsel's further submission that DK does not meet the necessary criteria in ss 7(4) and 10A of the Act for the making of an ISO or to oblige him to submit to an examination by Court appointed experts, again because the matters alleged in the supporting documentation would, if proved, not justify the making of an ESO. The plaintiff, in its filed submissions, submitted to the contrary.
At the conclusion of the preliminary hearing, although Ms Graham did not abandon the primary submission that the summons should be dismissed, her submissions were focussed on the conditions proposed by the State on an interim basis by suggesting deletion of a number of them and a redrafting of others. In her submission, a number of the proposed conditions are not appropriately directed to the unacceptable risk that DK will commit a further serious violence offence if not supervised and, in addition, that they are unjustifiably intrusive, in large part by their failure to accommodate DK's personal circumstances and, in the result, are likely to be counter-productive in addressing the primacy of the safety and protection of the community and of encouraging DK to undertake rehabilitation.
Section 11 of the Act provides that an ESO or an ISO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". That section contains a non-exhaustive list of permissible conditions. In State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [24]-[25] Johnson J considered what is encompassed by the need for the Court to be satisfied of the appropriateness of conditions. He said as follows: 24. If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an ESO and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127]. 25. Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149].
See also State of New South Wales v Fernando (2016) NSWSC 1665 at [13] and State of New South Wales v Colquhoun (2018) NSWSC 1012 at [59]-[61].
The parties were also given leave to file further submissions directed to the number and form of the conditions to which DK would be subject under an ISO, assuming the Court is satisfied that interim orders should be made. Ms Graham was invited to provide the plaintiff and the Court with an amended Schedule of Conditions, being those with which DK would be willing to comply on an interim basis. The plaintiff's further submissions propose a number of amendments to those conditions. I will return to consider the competing submissions of the parties in due course.

DK's general background

DK is now 25 years of age. He was born in April 1993. He is the only child of his parents. His mother is Aboriginal. His father is Caucasian. His parents separated prior to his birth. His mother is deceased. He has had little contact with his father until recent times. Neither of his parents were involved in his upbringing. He lived with his mother intermittently between periods of time she spent in custody. His primary carers were his maternal grandmother and great grandparents. They remain supportive of him. He is currently residing in their home pursuant to a grant of parole.
DK left school in year 9, with his last secondary school placement in a school for children with behavioural problems. He completed a carpentry skills course after leaving school, however he has amassed little in the way of a work history. It appears that he may have worked for two employers but for short periods only. DK has a history where the abuse of alcohol, cannabis and, more recently, methamphetamine is marked. It appears he started abusing alcohol at about age 13, and within a short period of years was drinking to excess on a daily basis. He also developed a pattern of smoking cannabis on a daily basis.
In a psychological report prepared for the purposes of the sentence proceedings for the index offence in 2015, the author of the report provided the following additional insights into DK's personal circumstances. As a child, DK sought a sense of belonging by associating with young people of Aboriginal heritage including his cousins. The psychologist noted that this occurred particularly in the context of DK being aware "from a young age that his skin colour was different from other Aboriginal young people he knew were 'his people'." He went on to tell the psychologist that he had asked his mother about the difference in his skin colour and that she told him that he was an outcast or a mistake, and that he did not belong. He then, apparently, adopted the behaviour of young Aboriginal men known to him, believing that if he identified with them, he would be accepted by them.
He was also exposed to and experienced significant violence at home at the hands of his mother's partner. As at 2015, he reported a longstanding struggle with anxiety and depression.
In a series of Corrective Services case notes and Juvenile Justice background reports annexed to Ms Tran's first affidavit, it is also clear that a persistent feature of DK's life as a young person, including in his late teens, was his experience of the death of multiple family members. A number of his extended family members died in 2013, and his mother died whilst he was in custody in 2016. A significant male figure in his life died mid-way through 2010, with his stepfather dying in May 2009.
It was on the basis of those additional insights into DK's background and family circumstances that, in assessing DK in 2015 in relation to the index offence, the psychologist recommended, amongst other treatment proposals, psychological counselling with a skilled Aboriginal clinician to address his childhood identity issues and participation in an Aboriginal sensitive substance treatment program to address what was at that time an entrenched history of substance abuse.

DK's criminal history including a pattern of offending behaviour revealed by that history, inclusive of the views of sentencing courts and other relevant information (see ss 9(3)(h), (h1) and (i))

DK has a criminal history commencing in 2007 when he was 14. Since then, he has been charged and convicted of a number and range of offences including stalking and intimidation, common assault, assault occasioning actual bodily harm, possession of unauthorised firearms, custody of a knife, and a number of offences of dishonesty. Many of the criminal offences which attracted conviction were prosecuted within the jurisdiction of the Children's Court and others within the jurisdiction of the Local Court and District Court.
The plaintiff draws particular attention to the fact that prior to the commission of the index offence, DK was convicted of a number of offences involving varying degrees of violent behaviour between the ages of 17 and 19, as follows:

28 May 2010 and 20 September 2010 (when DK was 17 years of age)

DK was charged with the assault of a police officer which attracted a 12 month supervised bond, and robbery in company (an incident involving DK's taking of a Blackberry phone and wallet) which attracted 12 month's supervised probation and 100 hours of community service.

12 February 2012 (when DK was 18 years of age)

DK was charged with possession of an unauthorised firearm, and possession of an unregistered firearm, contrary to ss 7A(1) and 36(1) of the Firearms Act 1996 (NSW) in connection with being in possession of a black 6mm air pistol. Neither of those offences attracted sentences of imprisonment.

8 May 2012 (when DK was 19 years of age)

DK was charged with intent to commit an indictable offence contrary to s 114(1)(a), and intentionally or recklessly destroying property contrary to s 195(1)(a) of the Crimes Act. These offences were committed in the context of DK using a metre long pole to bash the security drawer in a property belonging to another person. The offences attracted three month concurrent terms of imprisonment.

The index offence

On 12 April 2014, when DK was 21 years of age, he was charged with the index offence. On that occasion he was also charged with two additional counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. He was sentenced for one of those offences with the second offence being dealt with by way of a Form 1. At the time of the offending he was subject to an 18 month supervised bond imposed for entering a motor vehicle without the consent of the owner and a number of offences of dishonesty. He was remanded in custody on his arrest and sentenced on 4 August 2015.
In the sentencing judge's remarks on sentence the facts giving rise to the offending are set out in detail, as follows: The offender and the complainant have known each other most of their lives. From the end of September 2013 they began a relationship. They lived together and then the offender moved out and the relationship broke up on 8 March 2014. The complainant had temporary accommodation at Kensington. On the night of Wednesday 9 April the offender spent the night with the complainant in her room. The following morning he drank half a bottle of gold coloured spirit before leaving. The offender and the complainant contacted each other throughout the day with text messages. About 12.30am on 11 April the offender returned to the motel room. The complainant could tell the offender was drunk and she returned to bed He told her he had been drinking all day. They started arguing and there was an argument over who she may have been contacting on Facebook. He was asking her who it was. She refused to respond. The offender grabbed her by the neck with his left hand. He then squeezed the complainant's throat hard and she started to choke. The offender pulled the complainant towards him, punched her on the jaw and then about another three times on the face. He then let go of her neck, pushed her back on the bed. He continued to verbally abuse the complainant who was lying on the bed with blankets covering her legs up to her mid-thigh area. She was only wearing a singlet and shorts. She did not respond to his questioning and he said, "You've got about three minutes to tell me who you've been talking to". She said, "I don't have to tell you that, you're not my boyfriend." As the offender spoke he approached the tea and coffee making facility in the room and turned on the kettle. The offender had made a cup of tea. On Thursday morning the kettle was still about half full. The offender told the complainant, "Well you're going to get burnt for this". He kept calling the complainant a slut. As the water came to the boil the offender said, "I'm nearly done, I'm nearly done." The complainant was too scared to say anything. The offender pulled out a knife from his pants, walked over to the complainant and cut her on the left thigh. As soon as the water boiled and the kettle clicked off the offender picked up the kettle. He walked over to the complainant who remained lying on her back in bed. The offender stood over her and said, "Are you going to tell me now?" The complainant said, "No". The offender poured boiling water on to her bare chest. This instantly caused a burn to her upper right chest area. The complainant described it as being unbelievably painful. The skin on her chest peeled off, revealing pink and white under layers. She got up and jumped out of bed, took her clothes off, went to the bathroom and attempted to cool the burn using a cold, wet towel. She tried to have a cold shower but it was too painful. The offender was trying to get cold drinks out of the fridge to put it on her chest. The history then goes on as to what happened after that and eventually back in the room the offender threatened the complainant, "You know when the pain goes away you're going to cop it worse, I haven't finished with you yet." The offender slept for a short time. The complainant was too scared to leave. She then fell asleep. The history then proceeds on about what she did, who she met, who she told, et cetera. The complainant and Mr Stubbs had lunch. About 2 pm the offender phoned the complainant and said, "Sorry, I didn't mean to do it, what I did to you today". The complainant eventually sought treatment. On Saturday 12 April the burn remained painful and she went to the Botany Medical Centre. She told the doctor she had spilt tea over herself. She was told the burn was serious. She was referred to a hospital. Eventually she reported the matter. She told police she had not reported the matter earlier because she was afraid of what the offender may do to her. There is evidence of prior offences where the following offences were disclosed. One was on 18 February 2014 where she met the offender at Maroubra drinking alcohol and she was accused of trying to chat up his cousin and called a slut. They were sitting beside each other on a wall. The complainant was wearing black coloured long tights. The offender pulled out a black handled flick knife from the top of his underpants, with his right hand he leant forward and cut her across the top of the right thigh. The cut caused immediate pain and began to bleed. The assault occasioning actual bodily harm: The offender continued to yell at the complainant and call her a slut. He picked up a garden fork off the ground in a memorial garden. The fork was rusty with green plastic handles, three metal prongs with points at the end. As the complainant sat on the wall the offender held the fork in his right hand and brought it up to her face. He stabbed her once with the prong to the back of the neck. The complainant received a single puncture of the left side of her neck by her hairline. It caused immediate pain and began to bleed. He then forcefully stabbed the top of her outer left thigh with the garden fork and stabbed her a third time.
His Honour went on to make the following remarks: These are most serious offences. They are offences of domestic violence. The main offence is carried out in a very cruel way. First, an assault on this day, cutting with a knife and that was something he had done before, but then to boil water and tell her she is going to get burnt, deliberately pouring boiling water over her chest is extremely cruel behaviour. She suffered a very painful burn and cutting of her requires the use of a weapon. He must be sentenced in such a way that he knows that he cannot [behave] in this way but, just as importantly, that other members of the community are aware that if they offend in this way they will be sentenced to terms of imprisonment and often lengthy terms of imprisonment.

DK's release to parole at the expiration of the non-parole period for the index offence and his level of compliance with his obligations as a parolee thereafter (see s 9(3)(f) of the Act)

DK's release to parole on 9 October 2017 was subject to conditions, including a condition that he not consume illicit substances.
On 17 November 2017 and 9 December 2017 he breached parole upon testing positive for drug use. No action was taken to revoke parole. On 6 February 2018 DK was charged with having a knife in his possession, namely a large 50 cm machete contrary to s 11C(1) of the Summary Offences Act 1988 (NSW). On 18 April 2018 that matter was dealt with in the Local Court. DK was placed on a section 9 bond for 18 months and fined $220.
On 7 February 2018 DK was arrested and charged with various offences in the context of an alleged domestic violence event. The alleged offending resulted in the February 2018 revocation of parole. The matters were listed for hearing in the Local Court on 15 May 2018 but they were withdrawn with the alleged victim of the offences of physical violence (by intentional choking with recklessness), stalking, intimidation and a further account of common assault being apparently unable or unwilling to give evidence for the prosecution.
The Court was invited by Ms Graham to place no weight on the allegations of violence constituted by the February charges. She submitted that in circumstances where those offences were denied and where the charges were withdrawn, they should form no part of the Court's evaluative task. I am not prepared to take that approach. I consider that they bear relevantly on the exercise to be undertaken at the preliminary stage under s 9(3)(i), bearing as they do on the primary question of the safety of the community (see State of New South Wales v John Owen Conway [2011] NSWSC 976 and State of New South Wales v Veeran [2015] NSWSC 75).
Without descending into the detail of the facts that supported the laying of the charges in February 2018, it is significant to note that the nominated person in need of protection (a person referred to as V8) was in a relatively new relationship with DK which descended from verbal abuse to physical abuse over a period of weeks. The charged conduct occurred after both DK and V8 had been drinking. Verbal threats of various kinds were made on a sustained basis after the alleged physical assault including the following day when DK attended V8's sister's home. Ongoing communication by text and letter also involved threats of violence. This cycle of abuse was considered by police as serious, particularly in circumstances where DK was on parole after having been released from custody four months earlier.
In about May 2018 (it would seem while DK was in custody after his parole was revoked in February 2018) he was invited to participate in the preparation of a risk assessment report (RAR) in relation to what he then understood was the plaintiff's pending application for orders under the Crimes (High Risk Offenders) Act.
DK was subsequently released to parole on 22 May 2018 after the February 2018 charges were withdrawn.
That grant of parole was revoked after a breach of parole report dated 3 August 2018 cited DK's failure to comply with his parole order conditions and his disengagement with Community Corrections as the basis for the recommendation that the parole order be revoked. The reporting officer stated as follows: [DK] has failed to comply with is Parole Order conditions and has disengaged from supervision with Community Corrections. Despite his satisfactory attendance at interview appointments at the commencement of supervision, his engagement has deteriorated and his current whereabouts are unknown. [DK] has demonstrated non-compliance by failing to comply with directions issued by his supervising officer to address his outstanding criminogenic needs. As such, it is of concern that the identified risk factors remain unaddressed and given [DK's] complete disengagement with Community Corrections, it is recommended that [DK's] Parole Order be revoked.
The failure to address what the reporting officer described as DK's "outstanding criminogenic needs" appears to refer to his failure to abide by directions, inter alia, to attend and complete the EQUIPS Domestic Abuse Program and to participate in prescribed alcohol and drug rehabilitation programs.
In Ms Graham's detailed submissions she sets out a chronology of contact (appropriately footnoted to the evidence) demonstrating what she contends was DK's concerted efforts to engage with various community counselling services following his release to parole in May 2018, including those nominated by the parole authority, whilst at the same time accepting that some contact was sporadic. What she does seek to emphasise is that the various Case Note Reports are strongly suggestive of a determination on DK's part to cooperate with the level of participation expected of him, and that his behaviour, on presentation, was generally positive. It was her ultimate submission that what the parole report describes as a process of progressive disengagement is capable of being explained by DK's fear of being "breached" and re-incarcerated as a result of missing scheduled appointments, in turn precipitating entrenched avoidance behaviour. There would appear to be some force in those submissions in circumstances where (after the breach report was initiated, but before the arrest warrant issued) DK spoke with Community Corrections over the telephone on 6 August 2018, including speaking with an Aboriginal client services officer, and expressed his fear of returning to prison. He was encouraged to re-engage to avoid a parole breach. Thereafter (again after the breach report was initiated but before the warrant issued), DK reported to Community Corrections as directed and attended drug and alcohol counselling as scheduled. In Ms Graham's submission the revocation order made on 15 August 2018 and the subsequent arrest warrant were processed despite DK's demonstrated re-engagement with Community Corrections and other treatment program providers.
The warrant for his arrest (for breach of parole) was executed on 4 September 2018, but he was again released to parole on 2 October 2018. The decision to revoke his parole was rescinded because he had suitable post-release accommodation and appropriate plans for re-integration into the community under supervision, with it being acknowledged that since his release to parole in October 2017 there had been no further offences of violence (a conclusion which follows inevitably from the fact that the February 2018 charges were withdrawn).
On 4 October 2018 DK reported for supervision with what was documented as a sound level of understanding of his obligations under the grant of parole. The plans for his supervision at that time included engaging in drug and alcohol treatment and completing the EQUIPS Domestic Abuse program. He reported a willingness and desire to complete that program in order to address how to deal with what was described in the Corrective Services case note report as "high risk situations". It was reported that whilst he appeared to minimise his history of threatening violence in a domestic context, he nevertheless believed that his behaviour was not a healthy response to domestic conflict and that he needed to develop his skills to deflect the triggers to that behaviour. It was on that basis, it would seem, that Community Corrections considered that DK's management as a parolee did not call for electronic monitoring.
On 9 October 2018 DK met with his assigned social worker, Ms McCabe, at Weave Youth and Community Services, an organisation to which he self-referred in June 2018. In a report dated 25 October 2018, Ms McCabe notes that DK reconnected with the organisation for an intake discussion on 9 October 2018 with his earlier contact interrupted due to his incarceration. Despite his presentation being described as consistent with his stated motivation to change his life to ensure no further return to custody, including his stated goals to obtain secure housing and employment and obtain his driver's license, he was arrested and charged that day with contravening an ADVO as a result of what was alleged to have been contact over the telephone with V8 whilst he was in custody.
That charge was ultimately before the Central Local Court on 12 November 2018, being listed together with a final hearing of the application for an ADVO which the police had applied for on 19 October 2018 on a provisional basis as a result of further allegations of violence reported by V8 to a FACS worker on 2 September 2018 - two days before his arrest and return to custody after his parole was revoked in August 2018.
In short, the allegations in support of the application by police for the ADVO are as follows: 1. DK was with V8 at her home when an argument erupted. 2. DK threw V8 against a wall causing her head to make contact with the wall under force, after which he punched her in the nose and mouth causing bleeding. 3. DK slapped V8 across the face and threw a plate at her, threatening to kill her if she called police. 4. DK then attempted to ignite V8 by spraying a can of air freshener in her direction and placing a lighter in the vapour. 5. DK threw lit cigarettes in V8's direction.
V8 left the premises (her home) and did not return for a few days. Her complaint was corroborated with the case worker reporting having observed frank injuries to her face and head inclusive of a swollen nose and cut lip.
On 12 November 2018 DK entered a plea of guilty to one count of contravening the ADVO. On that occasion V8 was present and sought to have the AVO varied or revoked as a result of her wish to maintain her relationship with DK as her fiancé with their marriage pending. That application is listed for further mention on 12 December 2018 (the day of this judgment).

Risk assessment

Mr Samuel Ardasinski, a senior forensic psychologist, prepared a Risk Assessment Report (RAR) dated 14 June 2018 which is supported by the acting chief psychologist, Ms Cieplucha. Although the plaintiff advanced the submission that the report was prepared referable only to documentary information because DK refused to provide his consent to a formal interview, that is something of an overstatement having regard to Ms Graham's submission, as supported by other evidence, to the effect that DK wished to obtain legal advice (to which he was clearly entitled) before giving his consent. In the circumstances I do not regard the lack of consent as supporting any conclusion of a general unwillingness on his part to participate in the risk assessment foundational to these proceedings, or to the processes of his rehabilitation generally. It is appropriate to emphasise, as Ms Graham sets out, that DK met with Mr Ardasinski on successive occasions in May and June 2018 where he was described as cordial, polite, and friendly, with a willingness to engage in conversation about the HRO process, albeit unwilling to sign the consent forms without legal advice.
It is not necessary to extract, at length, from the RAR (which I have read thoroughly). Suffice to note that so far as DK's history of offending is concerned, Mr Ardasinski noted that it was not riddled with serious violence but, given his background, there is certainly the potential for violence, including serious violence. Mr Ardasinski went on to say: [DK] was raised in an environment which exposed him to violence and to drug and alcohol abuse, and he suggested, in the brief interview I had with him, that these were therefore learned behaviours. He stated that it was only after he began to come into contact with the criminal justice system that he was informed that these behaviours were wrong. There appear to be clear risk indicators which would precipitate [re-offending], such as drug/alcohol abuse, being in a relationship, and associating with antisocial peers. Whether [DK] can avoid such scenarios without assistance and/or supervision, and thereby avoid reoffending and a return to prison, is unknown at this stage.
What must, of course, now be observed is that in September 2018 further violent behaviour is reported by a person with whom DK is in an intimate relationship: the very risk which Mr Ardasinski identified in June 2018 as "unknown" but potential. Much of what Mr Ardasinski noted of DK's response to supervision historically has already been discussed. I should note, however, the fact that DK had not participated in any custody based higher intensity programs appears to be explained by the pressure on resources and his relatively smooth progress through to his release to parole in October 2017.
I accept that after serving the non-parole period on the basis of the deployment of both actuarial and other risk assessment tools, Mr Ardasinski assessed DK's risks and needs as falling within the high risk category for general and violent offending. The limitations on the use of that material for the purposes of the evaluative task in which I am engaged are well known.
What cannot be ignored, however, are the various criminogenic identifiers emerging from DK's personal and criminal history, including hostility towards partners (both his current partner, V8, and a previous partner) and, at least as a juvenile, negative attitudes to authority and general anti-social attitudes as precursors to the potential for re-offending.
Ultimately, Mr Ardasinski stated as follows: [DK's] most likely scenario for further violent offending will involve his being in an intimate relationship or encountering an ex-girlfriend with whom there is some ill will in an intoxicated state… On the balance of the evidence, the above high risk scenario could potentially result in serious violence since [DK] has entered into relationships and failed to disclose them to his supervising officers before being charged with domestic violence offences.
Mr Ardasinski concluded his assessment by stating: The overall totality of evidence suggests that [DK] falls in the high risk category of violent offending relative to other adult male violent offenders. Since [DK's] most serious violent offending involves intimate partner violence … it is quite possible that future violence could approach the threshold of a "serious violence offence" as defined in the [Act]. (emphasis added)
While the RAR might not have met the threshold for the making of interim orders at the preliminary hearing of the Summons, particularly having regard to the qualified language in which Mr Ardasinski reported his ultimate conclusions, DK's behaviour since that time, as reflected in the corroborated incident of domestic violence in September 2018 accompanied by verbal threats to V8 that DK would "kill her" if she ever contacted police, satisfies me, in applying the test for resolving matters at this preliminary stage, that the plaintiff has made out its case that DK poses an unacceptable risk of committing a serious offence if not supervised.

The conditions of the ISO

Having regard to the competing oral submissions of the parties as supplemented by their further written submissions, I am satisfied that an amended schedule of conditions will suffice, on an interim basis, to mitigate the unacceptable risk as I have evaluated it to be for present purposes. The conditions as I will impose them are designed to ensure against the risk that they are so rigorous and numerous that, in DK's particular circumstances, they might prove to be counter-productive rendering him liable to criminal sanction in the event they are breached, carrying the associated risk that he will be re-incarcerated at a time when I am satisfied he ought be encouraged to undertake rehabilitation (under supervision), both for his own personal advancement and to achieve the goals of safety and protection of the community which predominate.
Having regard to the sensitive nature of some of the material annexed to Ms Cotton's affidavit (information which it was not necessary for me to refer to or recite at this stage), I propose, nonetheless, to apply a pseudonym to the published version of this judgment in the event that there is the need to refer to that evidence in any subsequent hearing of the Summons.

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: 13 December 2018

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

At a glance

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