State of New South Wales v Doherty - [2019] NSWSC 920 - NSWSC 2019 case summary — Zoe

NSWNSWSC

State of New South Wales v Doherty

[2019] NSWSC 920

Supreme Court of NSW|2019-03-29|Before: Ierace J, Fagan J, Harrison J, Rothman J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-03-29

Before

Ierace J, Fagan J, Harrison J, Rothman J

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

Solicitors: Office of the Crown Solicitor (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/272654

[2]

Judgment

HIS HONOUR: The State of New South Wales ("the plaintiff") commenced proceedings by summons filed on 5 September 2018 against the defendant, Stuart Charles Doherty, seeking a 3 year extended supervision order ("ESO") pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). At that time, the defendant was serving a total sentence of 15 years following pleas of guilty in the District Court to charges of aggravated sexual assault, indecency and supplying a prohibited drug.
On 26 October 2018, Fagan J of this Court made an interim supervision order ("ISO"), which was renewed by Harrison J on 3 December 2018 and again by Rothman J on 28 January 2018. The hearing of this application did not take place until 1 and 29 March 2019. It was delayed by the defendant not complying with a direction made by Fagan J to attend appointments with court-appointed forensic experts, to assist them in the preparation of reports to be furnished to the court pursuant to s 7(4) of the Act.
On 31 December 2018, the defendant was arrested and charged with two breaches of the ISO and refused bail, which had the effect of suspending the ISO's operation pursuant to s 10C(1A) of the Act. The defendant pleaded guilty to the two charges. The defendant was released from custody on 31 June 2019. The ISO will now expire on 28 July 2019.

[3]

Background to the application

The defendant was born in 1965 and is aged 54. Court and forensic reports that detail or summarise the defendant's relevant background are to the following effect. The defendant was born and raised in Sydney, being the sole child of his parents, although he has older siblings from a previous relationship of his mother. His father left the family before the defendant was born, but returned for "a short period" when the defendant was aged about five. In 1990, when aged about 25, the defendant claimed that the only contact he had with his father was two phone calls in his teenage years. He was raised by his mother, with whom he had a close relationship, to the point that it was described by a Probation and Parole Service case worker in 1990 as one of co-dependence (Probation and Parole is now known as Community Corrections).
The defendant has made allegations of physical and sexual abuse by an older step-brother. The defendant began absconding from home when aged three. When aged five, he was cared for in a Burnside institution for a period of between 6 and 12 months. When aged six, the defendant was enrolled in a boarding school in Bowral for a year, possibly paid for by his grandmother, and thereafter resided alternatively with his mother and grandmother.
The defendant has claimed that he fractured his skull when he was about six months old and suffered another head injury when aged about six, losing consciousness on both occasions.
The defendant completed the School Certificate in 1980, when aged fifteen. His employment history comprises "factory work", scaffolding and concreting. By 2004, when he was aged 39, his longest period of continual employment had been eighteen months.
As to his drug and alcohol history, the defendant's first drug use was of cannabis when he was aged about 13 or 14, progressing to heroin when aged 21 or 22. After a few months, the defendant had a daily habit and continued to use heroin for ten years, ceasing regular use when he entered a methadone program. He went off methadone in approximately 2005. The defendant used Rohypnol (benzodiazepine) intermittently, at least in the 1980s. In about 2002, the defendant started using methamphetamine. By 2003, he had developed an amphetamine dependency. The defendant has also taken cocaine and LSD, but not with any frequency. Following his mother's death in 2017, he started drinking alcohol.
The defendant had told Dr Stephen Allnutt, forensic psychiatrist, in 2004, that his longest relationship had lasted two years and the longest period he had lived with anyone was 18 months. His last relationship at that time had been in 2000. The defendant had a daughter, in about 2002.

[5]

The manslaughter offence

In 1989, the defendant was charged with murder. At trial, he was found guilty of the alternative count of manslaughter. He was sentenced by Hunt J for that offence as well as for an offence of assault and robbery, committed nine days before the manslaughter.
The facts of the assault and robbery, according to Hunt J's remarks on sentence, were that the defendant and a female companion noticed the victim late at night in a shop, "slightly drunk", with a pay packet protruding from one of his pockets. They followed him home, waited until they thought he would be asleep and climbed through an open window. The victim awoke while they were taking the pay packet. The defendant punched the victim, rendering him unconscious. They put him back in his bed and left. The victim suffered partial paralysis to one side of his face, following the bruising of a facial nerve. The degree of force required to produce the injury was assessed by the treating doctor as "severe".
The factual basis of the manslaughter sentence depended largely on the defendant's explanation to police, being that he and a co-offender, at the defendant's suggestion, re-visited the same victim, nine nights later. The defendant entered through a window and then let in his co-offender. The victim again awoke as the defendant was looking for his money, and after a short struggle, an opportunity arose for the defendant and co-offender to leave. Instead, the defendant hit the victim to his head six times, being four punches and two "slaps". The co-offender then hit the victim "a few times" across the stomach with an iron bar.
The victim was still conscious and denied he had any money. The two offenders found $50 hidden in his underpants, which they took and left. The victim was found deceased two days later. The cause of death was blood loss resulting from injuries to his spleen and a kidney. Other injuries included five fractured ribs, blunt instrument blows to his back, lacerations to his face and mouth, a fractured nose and multiple bruises to the face, shoulder, chest and both hands. There was bruising to a "substantial area" of the left, middle and back of the inside of the skull. The Crown case was circumstantial, based on the unlawful and dangerous acts of the co-offender causing the victim's death by the injuries inflicted with the iron bar, the defendant being an accessory.
The defendant claimed that, at the time of the manslaughter, he was under the influence of both heroin and Rohypnol. Hunt J did not accept that explanation, primarily because it was offered late, but did accept that the offences were drug-related. Hunt J rejected an assertion by the defendant that the offences had deterred him from further drug use or drug-related criminal activity. His Honour also noted that the defendant had "an appallingly unsatisfactory lack of co-operation with the Probation and Parole Service upon each of his many previous contacts with it in the past". His Honour handed down a fixed term of 2 years for the assault and robbery and a minimum term of 4 years for the manslaughter, to be served consecutively, with an additional term of 1 year and 4 months. The defendant was eligible for release on parole on 7 January 1996.

[6]

Criminal history January 1997 to August 2003

The defendant was not released to parole until 30 January 1997. Between August 1998 and August 2003, he was convicted of the following offences: three counts of shoplifting; two counts of goods in custody; three counts of enter enclosed lands; two counts of larceny; one count of break, enter and steal; two counts of furnish false information to licensee; five driving offences; three counts of possess prohibited drug; one count of supply a commercial quantity of cannabis; one count of attempt escape lawful custody; one count of common assault; one count of assault occasioning actual bodily harm; one count of carry cutting weapon; and one count of possess/use a prohibited weapon.
In that five year period, the defendant received multiple prison sentences, the shortest being a fixed term of 1 month and the longest a sentence of 2 years with a minimum term of 18 months, which was for an offence of assault occasioning actual bodily harm, committed on 15 March 1999. The defendant and his then girlfriend were travelling on a train. His girlfriend lied to the defendant that a man (the victim) on the train had grabbed her on the crotch. The defendant put the victim in a headlock and attempted to stab him in the neck with a blood-filled syringe. The victim felt a prick but escaped. The defendant gave chase through the train, until he was subdued by passengers and guards. The defendant told police that he had been diagnosed with Hepatitis A and C. The victim was not infected.
On 15 May 2003, the defendant assaulted a girlfriend with whom he had been cohabiting for two weeks. He punched her twice to the face, the second time about five minutes after the first, while she was still on the ground from the first punch. He admitted the assaults to police, explaining "I'm not going to deny it, she wouldn't let me out, I hit her a few times". He was on bail for those matters at the time he committed the index and related offences, eventually receiving concurrent fixed-term sentences of 3 months.
The defendant's relationship with Probation and Parole continued to be problematic. He was subject to a supervised parole order that commenced on 15 September 2000 and expired on 15 March 2001. However, soon after his release, he was breached for failing to report. He was given a warning, but eventually parole was terminated as he was unresponsive to supervision.

[7]

Subsequent criminal history and the aggravated sexual assault (the index offences)

In August 2003, when aged 38, the defendant was charged with, and ultimately pleaded guilty to, three counts of aggravated sexual intercourse without consent. The defendant also pleaded guilty to two counts of indecent assault on the same indictment. A Form 1 offence of aggravated break and enter and commit serious indictable offence was taken into account on one of the aggravated sexual assault counts ("the index offences").
At the same time, the defendant pleaded guilty to a count on a separate indictment of supplying cannabis, being 2.275kg of cannabis. Two offences of goods in custody and one of possess prohibited drugs were taken into account on a Form 1 in respect of that count ("the related offences").
The defendant received an overall sentence of 17 years with a non-parole period of 12 years. He sought leave to appeal against the severity of sentence. He was granted leave, the appeal was upheld and he was re-sentenced to 15 years imprisonment with a non-parole period of 10 years.
The facts of the counts on the indictments were summarised by the Court of Criminal Appeal in Doherty v R [2006] NSWCCA 133 as follows: "9 All offences the subject of the first indictment were committed on 25 July 2003. On that date, at about 12.30 am, [the defendant] entered a private dwelling by removing a flyscreen from the bathroom window and entering through the window. The victim of the offences, a 55 year-old widow, was asleep in bed. She was alone in the premises, which were a home unit which she shared with her daughter. The victim was awakened by the movement or the noise and arose to investigate. She saw [the defendant] attempting to hide against a linen press. He rushed towards her and wrestled her to the floor. In doing so he caused her some injuries, including lacerations to her lower lip, inside her mouth, her nose and grazing to her face. The victim attempted to fight off [the defendant] but was unsuccessful. [The defendant] tied her hands behind her back with some elastic material. He forced her into her bedroom and placed her face down on the bed. He undressed and approached her. He pulled up her nightie and rolled her onto her back. He then spread her legs and rubbed his penis against the outside of her vagina and her anus. He began to kiss her while continuing to rub his penis around her vagina. He penetrated her vagina and had intercourse with her. He withdrew his penis from her vagina and positioned it against her mouth. He forced her to perform fellatio upon him. He then again had forced penile intercourse with her. 10 In all, [the defendant] was in the victim's unit for approximately fifty minutes. On the agreed facts tendered to the sentencing judge, from time to time he left the bed and rummaged through her drawers and cupboards. 11 There were sounds of the victim's daughter arriving home. [The defendant] fled the premises. He took approximately $500 in cash and a key-card in the name of the victim. 12 These events gave rise to all of the charges on the first indictment. 13 During the afternoon of 7 August 2003 police learned that [the defendant] was in a room in a motel in Windsor. They attended, and gained entry. There they located the applicant in possession of more than 2.2 kilograms of cannabis, together with more than $5,000 in Australian currency. This gave rise to the charge on the second indictment, and constituted the offences taken into account."
The break, enter and steal on the Form 1 was committed on the same premises as the sexual assaults; the defendant returned there the following week and again 16 days later, on each occasion breaking in and stealing items. By then, the victim had moved out and the premises were unoccupied.
The defendant claimed he was under the influence of methamphetamine at the time of the index and related offences. He later described how his use of amphetamines had increased his level of sexual preoccupation to a point that he had been in a continual state of sexual arousal.

[9]

Progress in prison

The defendant's behaviour in prison since his incarceration in 2003 has been positive. The Risk Assessment Report refers to him as a prisoner who is "polite to others and compliant with routines". Although he has committed over 30 disciplinary offences in custody, all but 7 pre-date his almost 14 years of incarceration for the index and related offences. He has only committed one since 2011, which was possessing prohibited goods, being 5g of tobacco.
The defendant completed the Custody-Based Intensive Treatment Program ("CUBIT") in 2013. He was described as an active group and community member, who appeared to engage well in the treatment process and demonstrated a positive change in relation to general pro-social behaviours. Whereas previously the defendant had not demonstrated empathy for the victim of his sexual assaults, consequent to this program he had improved insight. The same year, he completed the Self-Management and Recovery Training program ("Getting SMART"), which is a cognitive behavioural therapy program that targets offenders with a medium or higher risk of reoffending, by treating alcohol and/or other drug use to reduce dynamic risk factors. It also prepares and motivates offenders to participate in ongoing SMART Recovery maintenance meetings ("the SMART Recovery Program"). In 2015, he completed nine sessions of the SMART Recovery Program, as well as other drug and alcohol treatment programs.
The defendant's total sentence expired on 6 November 2018. He became eligible for parole on 6 November 2013, however, he was not released to parole until 16 March 2017, with only 1 year and 8 months left to run. A significant factual issue in this application is the poor relationship between the defendant and Department of Corrective Services ("Corrective Services") officers when he was eventually released to parole and subsequently to an ISO. This is in contrast to the very good relationship he had with prison staff over the 14 years of his sentence served in custody. The defendant submits that his behaviour with Corrective Services staff in the community was partly borne of frustration that he had served his sentence and that further constraints on his freedom were unwarranted. It is relevant from this perspective to understand why the defendant was released to parole so late in his sentence.
A report of the Serious Offenders Review Council ("SORC") on 9 July 2013, being four months before the expiration of his non-parole period, noted that his participation in CUBIT had been described by both Correctional Services staff and non-staff as "excellent". The report recommended that he participate in a works release program before release. The defendant was recorded as expressing his willingness to do so, and whatever else that was required of him.
The next report was in August 2014, being nine months after his non-parole period had expired. It included excerpts from reports from two Community Corrections officers dated August 2013, who expressed concerns that the defendant was institutionalised. One wrote: "It is positive to see that [the defendant] has progressed with regards to his attitude and behaviour and addressed his offending behaviour. Nevertheless, this Service is acutely aware that the offender has spent a significant amount of his adult life in custody and has now served ten years of his current sentence. Therefore it is the recommendation of this Service that [the defendant] is refused parole as it is imperative that [he] engage in external leave programs to assist him to reintegrate into the community prior to a positive recommendation being made."
The other report expressed a similar concern, adding that: "Prior to his release, [the defendant] also needs to engage in drug and alcohol programs such as Getting SMART as per the recommendation from the CUBIT psychologist."
The SORC Report noted that the defendant followed the recommendation, completing the SMART program in November the year before and picked up on the other officer's recommendation, stating that "he needs to participate in an external leave plan before any positive recommendation can be made". There is no explanation as to why that had not occurred by then.
The SORC report of August 2015 noted that the defendant was unable to find an appropriate sponsor for unsupervised leave in the community. Nevertheless, the Chair of SORC, the Hon R O Blanch AM QC, conscious that the defendant would have a parole hearing the following month, said: "This offender has had a C3 classification since February 2015. He has so far been unable to take any Day Leave although this may have been addressed by the time of the parole hearing in September. He has done as much unsupervised work as is available to him at Junee. He has support in the community and his non parole period expired in November 2013. Although at present there would be a question of his suitability for release to parole, that may have changed by September and we advise it would be appropriate for the parole authority to consider his release to parole at that stage."
The next SORC report was dated 15 March 2016, that is, seven months later. It noted a Corrective Services report that the defendant had found a potential sponsor in the community, the mother of his 14 year-old daughter. She resided near Muswellbrook, which would necessitate the defendant being transferred from Junee prison to one closer to that area, which he was reluctant to do. SORC interviewed the defendant, who provided an explanation, which was essentially to do with Corrective Services policies concerning the number of "Day Leaves" needed to qualify for parole and whether he could complete them at Junee before being transferred to a closer prison. As well, a significant factor had been a delay in the Department assessing the sponsor's suitability. After 14 weeks, this still had not been done, requiring the defendant to submit a fresh application. The Hon R O Blanch reported: "This prisoner has been unable to access Day Leave partly because of his reluctance to move to another prison but significantly because of the delay in assessing and approving his sponsor. Otherwise he has been compliant and has exercised his privileges in the community responsibly. There is no indication as to when a sponsor for Day Leave will be approved and his head sentence expires in November 2018. It is desirable that he be supervised for a significant period while on parole."
However, his sponsor withdrew her support. In a further report six months later (30 August 2016), the Hon R O Blanch concluded: "This offender has not been able to access leave and that situation will not improve. He remains compliant and his head sentence expires in November 2018. It is desirable that he be supervised for a significant time after his release. We advise it would be appropriate to consider his release on parole."
Four weeks later, on 29 September 2016, the defendant was disciplined for the possession of the 5g of tobacco, which set back his release by another six months.

[10]

Progress on Parole and subject to the ISO

When finally released to parole on 30 January 1997, the defendant resided with his mother, at a relatively remote location in the Lithgow area. His conditions of parole included him submitting advance schedules of his movements, electronic monitoring and abstinence from the use of non-prescribed drugs and alcohol. He complied with his parole conditions until his mother died, on 27 July 2017. The defendant had no other social or familial supports in the community. In September 2017, he was reported as living alone at the same property, but planning to move to a more central location.
The defendant's compliance deteriorated from about that time. It transpired that he had started to occasionally drink alcohol following his mother's death. Although the defendant had been subject to regular breath testing, he had produced a positive result on only two occasions. There were repeated minor infringements by him of his supervision conditions. The defendant's movements would sometimes vary from the schedule when he had not sought prior approval. Sometimes he would not be punctual, would change an appointment or would not turn up at all.
On 12 September 2017, the defendant was discovered to be in a relationship with a woman he had recently met, who I will refer to as AB, which he had not disclosed to Community Corrections officers. AB has three children.
AB was regarded by Community Corrections as being supportive of the defendant's need to comply with parole conditions at times and unsupportive at other times. Reported incidents included AB being aggressive towards Community Corrections staff, threatening to record conversations with them and obstructing access to the defendant's approved residence. There were indications that AB used alcohol and drugs, particularly methamphetamine. To his credit, the defendant expressed his own similar concerns to Community Corrections. At times he said he had ended the relationship, but it continued.
From October 2017, there was an escalation in the seriousness of the defendant's breaches. Although the requirement for the defendant to submit to scheduling was removed in November 2017, on occasions he would be uncontactable for hours by phone or he would not comply with specific directions, such as to not sell firewood from his home, not operate an advertised ironing service and not host garage sales. The defendant's behaviour was troubling in other aspects. He was involved in a public argument that required police intervention. He was "reportedly gambling at a problematic level" and selling "personal items" to fund it. There was an element of increasingly erratic and unpredictable behaviour. The same month, the defendant was observed on CCTV at a licensed premises consuming alcohol.
On 23 November 2017, the defendant was directed to not attend any licensed premises with gambling facilities. Over the next few days, he was detected at multiple licensed premises and gambling related premises in Lithgow, nearby towns and at the Star Casino in Sydney. On 26 November 2017, he was not able to be located via his electronic tag and was not contactable by phone from then until he was arrested on 30 November 2017, following the revocation of his parole.
The defendant was re-released on parole on 30 January 2018, but he continued to resist compliance. This was raised with him at a case conference on 20 March 2018. On 23 March 2018, the defendant was reported as deviating from his schedule of movements 11 times. Three days later, he left his residence when he was not scheduled to do so and did not respond to 14 attempts to contact him by phone. On 29 March 2018, the defendant's parole was again revoked. When arrested, alcohol was detected and he admitted consuming alcohol the previous day.
The defendant's view of these difficulties, according to the authors of the Risk Assessment Report, is that he had "taken a few liberties without breaking the law", that the violations had been minor, the scheduling had been "overbearing" and he had been trying to "do the right thing".
As noted earlier, Fagan J made an ISO on 26 October 2018. When the defendant's sentence expired, on 6 November 2018, his release was subject to the conditions of the ISO. A condition was that he reside at an address approved by Communications Corrections. The defendant had expressed a desire to reside with AB in Lithgow. However, this was assessed by Community Corrections to be an unsuitable residence for him. Instead, he was directed to reside at an Integrated Support Centre (an "ISC") at Campbelltown, which I understand to be a supervised residential facility operated by Community Corrections for offenders who are released on parole or are subject to an ISO or ESO.
The defendant did not cope well with this period in the community, either. He was arrested on 31 December 2018 and charged with two counts of failing to comply with his ISO conditions. Over the intervening eight weeks, he had failed on multiple occasions to attend appointments with the court-appointed forensic experts (one occasion was not his fault), twice failed to attend a medical practitioner for a mental health assessment, failed to attend appointments with Housing NSW to register for accommodation and with Forensic Psychology Services for assessment. On 15 November 2018, the defendant boarded a train to Lithgow and did not respond to phone calls from Community Corrections, only abandoning the trip when he received a text from the ESO team.
The defendant did not contact AB when released, although she attempted to contact him. He asked staff to not provide information to her about him. At one point, the defendant told staff that he had a new girlfriend.
The defendant was reported as being anxious at times, to the extent that, when cooking, he needed reassurance he was "doing the right thing". At one point, he was in such low spirits that staff were asked to "keep an eye on him". He was observed to be withdrawn and having limited interaction with other residents. He reported feeling overwhelmed, and explained that he failed to attend Forensic Psychology Services for assessment because he had only been in the Sydney CBD once in the previous 20 years.

[11]

The relevant legislative provisions

There are certain preliminary statutory requirements for an application for an ESO. I am satisfied these are made out, and it is unnecessary to consider them in detail. Essentially, the defendant is an "offender" in that he is over the age of 18 and has served the relevant type of sentence: ss 4 and 4A of the Act. At the time of the application, as required, the defendant was serving a sentence of imprisonment for a serious offence under supervision in the community: s 5B(a), the serious offence being a serious sex offence: ss 4, 4(a) and 5(1). He was a supervised offender within the meaning of s 5I and the application was made in accordance with s 5I in that, at time the application was made, he was under supervision while serving a sentence of imprisonment for a serious offence or an offence of a sexual nature (as both terms are defined in s 4): s 5B(b) and subs (c).
The timing of the application is in accordance with s 6(1) of the Act, in that it was made within the last 9 months of the offender's current custody or supervision. The application was supported by certain documentation ("the supporting documentation") that addresses the matters set out at s 9(3), and which includes a psychiatric, psychological or medical report that assesses the likelihood of the offender committing a serious offence: s 6(3).
The key provision is as follows. Section 5B(d) provides: "5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: … (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."
Implicit in the word "may" is a discretion to not make an order, although the statutory provisions for an ESO to be made are satisfied.
Section 5D of the Act provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of the person committing such an offence.
In determining whether to make an ESO, the safety of the community must be the paramount consideration: s 9(2). This is consistent with the stated primary object of the Act, which is "to ensure the safety and protection of the community": s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).
The term "another serious offence" in s 5B(d) may include a serous sex offence and/or a serious violence offence pursuant to the definition in s 4. In this case, both are pressed as a risk in the plaintiff's application. The statutory definitions of both terms are broad. The definition of a "serious sex offence" pursuant to s 5(1) includes all offences in Div 10 of Pt 3 of the Crimes Act 1900 (NSW).
The definition of a "serious violence offence" in s 5A of the Act encompasses a range of criminal behaviour that would or could result in death or grievous bodily harm, from an act or omission committed with an intent to kill to, say, an unlawful punch causing death where it is delivered with only the contemplation of actual bodily harm possibly resulting: State of New South Wales v Lynn [2013] NSWSC 1147 at [16].

[16]

Dr Jeremy O'Dea

Dr O'Dea wrote two reports, the first dated 20 January 2019. The defendant did not attend three appointments with him, so it was written without the benefit of a personal assessment. Having reviewed the material, Dr O'Dea stated that he agreed with a diagnosis made by Dr Allnutt in 2004 of a Substance Abuse Disorder. He thought it possible that the defendant has, as well, a personality disorder, with significant antisocial and psychopathic traits.
As to future risk management, Dr O'Dea recommended total abstinence from alcohol and drugs, assisted by drug and alcohol counselling, and therapy focussing on his sexuality, in light of the index offences and the defendant's possible history of being the victim of child sexual abuse. He also recommended that consideration be given to the defendant being obliged to take anti-libidinal medication. He was reluctant to predict the degree of risk of recidivism posed by the defendant, without the opportunity to personally assess him.
Dr O'Dea's second report, dated 28 February 2019, followed a 90 minute interview of the defendant on 19 January 2019. He described the defendant as displaying limited engagement and co-operation with the interview process and having low frustration tolerance, leading to limited rapport. He confirmed a diagnosis of a personality disorder with significant antisocial and psychopathic traits. He repeated his earlier recommendations as to treatment in the community.
As to the defendant's level of risk of committing violent and/or sexual offences in the community, Dr O'Dea said the following: "[The risk] may be significantly high, particularly if he were to resume illicit substance use in the community in the long term … More specifically, it may be argued, at least on the above history, that there would be a high degree of probability that [the defendant] would pose a significant risk of committing a further 'serious sex offence' … or 'serious violence offence' … in the community in the long term, if these above outlined treatment interventions were not successfully implemented in the context of community supervision and monitoring."
Dr O'Dea considered that the conditions imposed under the ISO and the program recommended in the Risk Management Report were adequate.
In evidence, Dr O'Dea expressed scepticism that completion of programs such as CUBIT reduced recidivism rates. The defendant's failure, as Dr O'Dea saw it, to explain in conference with him what he had learned from his participation in CUBIT and how he would better manage his overall sexuality was also detrimental to his prospects of avoiding recidivism, although even if the defendant had done so, that would not necessarily persuade him that the risk of the defendant reoffending was reduced.
Dr O'Dea said that the defendant admitted to him that his alcohol consumption that commenced following his mother's death progressed to being a daily occurrence of drinking spirits. In Dr O'Dea's opinion, it could have "snowball[ed] out of control".
Dr O'Dea was cross-examined as to whether, to the extent that his opinion of the risk of recidivism was based on the defendant's lack of compliance with parole conditions and the ISO, it was modified by a scenario of Community Corrections and the ISO staff having provided an inadequate standard of care and having misunderstood alleged incidents of breaches of directives. Dr O'Dea responded that his overall view would not change.

[17]

Dr Emma Collins

Dr Emma Collins is a clinical and forensic psychologist. She was retained by the plaintiff to prepare two reports in this matter, the first dated 21 December 2018 and the second 26 February 2018.
Dr Collins' first report was also written without the benefit of personally assessing the defendant, as he had not attended four pre-arranged appointments. The first occasion was apparently because of events beyond his control, the second because he reportedly did not wish to attend and the other two were unexplained. Consequently, her opinions expressed in her first report, which she described as a file review, were exclusively based on her review of the supporting documentation pertaining to the defendant, primarily court and Corrective Services documents generated over the course of the defendant's adolescent and adult life.
Dr Collins' second report was a reconsideration of her first report in light of a one-hour interview of the defendant, by audio-visual link with him in prison, conducted on 22 February 2019. The defendant asked her to postpone the interview. Dr Collins explained that she could not re-schedule it, and the interview proceeded. She described the defendant's participation, in the most part, as superficial, in that he provided minimal information. She said that he came across as mildly irritable and with restricted affect.
The defendant told Dr Collins that he wanted to be released unconditionally and intended to reside with his "girlfriend". (Assuming the defendant was referring to AB, I note that Community Corrections established in March 2019 that she had moved from her former address to a location 45 kilometres north of Lithgow, which is outside the effective range for electronic monitoring. The address has not been assessed as to its suitability otherwise.)
The defendant told Dr Collins that he has an inheritance of $100,000 from his mother's estate, which is presently being held for him by a lawyer.
Dr Collins noted some past assessments of the degree of risk of reoffending posed by the defendant. A Static-99R assessment conducted in 2013 and a Static-2002R assessment conducted in 2018 both placed him in the above-average risk level, meaning that according to those assessments, his sexual recidivism rate is 1.9 times the rate of offenders in the middle of risk distribution. Dr Collins concurred with those results.
The Risk for Sexual Violence Protocol (RSVP) had been applied previously. Dr Collins described this in the following terms: "… a structured clinical judgment tool that assesses both static and dynamic factors related to risk across the areas of sexual offending, psychosocial adjustment, future plans and any other relevant domains."
It placed the defendant's risk of sexual reoffending in the moderate range which, together with the Static-99R and Static-2002R results, yielded an overall rating of the above average range which, Dr Collins noted, is not the most high-risk cohort of offenders. Dr Collins said: "[The defendant] does not fall into the highest risk level on the Static-99R. Whilst it is a matter for the Court to determine, it is my professional view that above average risk does not represent the most high-risk cohort of offenders. Nonetheless, it is evident based on his history that [the defendant] poses a risk of further sexual violence. This risk is heightened if he lapses back into drug use. It is my view that in such a scenario, he could offend opportunistically, possibly against a partner or a stranger, and that he may engage in physical violence as part of that act. He has one isolated sexual conviction, which does not suggest that there is a clear risk of multiple future sexual offences, although that is difficult to say given what influence potential drug use could have upon his conduct. Lastly, there is no clear evidence with regards to imminence. To this end, whilst there is some risk that [the defendant] could commit a similar serious sex offence, there are no clear indicators of acute risk."
Dr Collins applied a further test, the Historical Clinical Risk Management-20, Version 3 ("HCR-20 V3"), which is "a structured professional judgement tool that is used to assess risk of interpersonal violence across males and females aged 18 and over". She chose to base the clinical scale over the previous six months, so as to capture some of his time in the community, as well as in custody. She concluded: "[The defendant's] future risk management planning was rated over the next six months, in the context of proposed release into the community. Factors that apply in [the defendant's] case are: • He is likely to be non-compliant with future supervision based on his past behaviour. • [The defendant] does not have specific future plans with regards to his release. Instead, his plans are generally vague (live with partner, be happy, get work). I also hold concerns that he may have a significant sum of money at his disposal, with no clear plans on how to manage those funds. • Whilst he has stable living prospects with his partner, that environment may expose [the defendant] to antisocial and drug abusing influences. He maintains that his partner's accommodation is stable and supportive."
Dr Collins assessed "protective" factors in the defendant's life, by applying a tool known as the Structured Assessment of Protective Factors for Violence Risk ("SAPROF"). She described it as: "… a 17-item clinician rated instrument designed to assess the areas of internal, external and motivating factors. It is use to assess the presence of protective factors over a following period of up to 12 months."
It indicated a low level of protective factors. The defendant's scores indicated the following: "• On the internal scale, he partially scored on most of the items. He demonstrates some capacity for empathy, secure maternal attachment in childhood, some evidence of self-control, and some ability for coping. He does not present with significant intellectual deficits. • On the motivational scale, [the defendant] did not score on most of the items. He showed some life goals, albeit basic. He has the capacity for some source of income given the inheritance he reports he has been left, although I note that [the defendant] reported a significant state debt. • On the external scale, [the defendant] partially scored on some of the items. He reports that his current intimate relationship is supportive, He has some level of professional care (in terms of supervision and potential treatment). He has some level of oversight in terms of his future living circumstances (if he lives with his partner or if he returns to COSP)."
Dr Collins considered that the low level of protective factors did not affect her assessment that the defendant has a moderate-high risk for violent recidivism.
Dr Collins concluded that: "I have thus found it hard to come to any clear conclusions regarding whether [the defendant] poses an unacceptable risk of committing another serious offence. There is clearly risk present, but the convergence across tools generally places him in the above average/moderate-high ranges for sexual and violent risk respectively. … It is noted that there is a strong likelihood of further ESO breaches given that [the defendant] will probably continue to struggle with and resist the scheduling elements of his conditions, amongst other things. This does not appear to result from him engaging in unscheduled activities, but rather engaging in minimal activities. To this end, it is possible that he will cycle between custody and the community with regards to his non-compliance. Should a period of extended supervision be imposed on [the defendant], it is my view that this be relatively short in duration, possibly 12 to 18 months if appropriate. My reasoning for this is to give [the defendant] an opportunity and the motivation to demonstrate any change with regards to his behaviour - the longer the ESO, the higher the likelihood of breaches reoccurring. Any period of supervision should monitor what types of behaviour [the defendant] is engaging in and whether it represents technical breaches versus criminal offence (that any person could be convicted of). It is hoped that [the defendant] would use that period of extended supervision to demonstrate other changes, such as no lapses in substance use, and an increase in prosocial pursuits, like employment for example."
Dr Collins was asked if the defendant's level of risk could be managed under an ESO, and, in particular, her views on "the use and relevance of electronic monitoring and schedules". In her response, she said: "The use of scheduling and electronic monitoring is likely to be where [the defendant] demonstrates limited compliance. Given that issue, there is some argument that electronic monitoring and scheduling may be setting him up to fail. Nonetheless, if there are concerns that [the defendant] poses an unacceptable risk, then close monitoring of his movements is appropriate."
In evidence, in view of Dr O'Dea's diagnosis, Dr Collins was asked whether she had considered a diagnosis of antisocial personality disorder. She replied she had, but did not make that diagnosis. She explained that there are seven criteria for such a diagnosis and she found that only three were made out. She qualified her diagnosis of substance use disorder, noting it is "in remission".

[26]

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

The defendant's criminal history portrays a wide range of seriousness and types of criminal offending, from the relatively minor (including property, dishonesty, driving offences and common assaults) to the very serious (manslaughter and aggravated sexual assault).
Insofar as the defendant's criminal record and supporting documentation casts light on any underlying recurring motive, there is a common thread through virtually all his offending over the twenty years between 1983 and 2003, namely, his drug use. This has fuelled his offending both to secure the means of purchasing drugs and directly impacted on his behaviour and judgment.
There are relevant common features of the manslaughter and aggravated sexual assault offences. In both, the victim was initially not known to the defendant. Both occurred in the context of the defendant entering the victim's home at night and the victim awakening. On both occasions, instead of immediately leaving the dwelling, the defendant remained and committed the subsequent serious offence. The motive for entering the manslaughter victim's home was theft. The motive for entering the victim's residence in the aggravated sexual assault offence appears to have been, at least in part, theft; it is not clear if when he entered the premises, he also intended to tie up the householder and/or carry out a sexual assault.
Both the manslaughter and index offences involved the defendant returning to the scene of the crime to perpetrate further offences. The manslaughter was committed a week after the first attack, the defendant returning to the victim's home to steal from him again and, as previously, when the victim awoke he fought him rather than leave. It appears from the material that twice after the aggravated sexual assault, the defendant again broke into the victim's home and stole property, although charges for these incidents were not pursued.
With the possible exception of the index offences, the defendant's violent offending appears to lack the planning that is apparent in his property offences, being instead the product of impulsive decisions. The assaults on his girlfriend, the assault on the train and the manslaughter could all be characterised in this way.
In the sentence proceedings for both the manslaughter and index and related offences, material was tendered on behalf of the defendant to the effect that he had gained insight into the impact of his drug use on his criminal behaviour. On each occasion, the sentencing judge rejected the proposition that it necessarily marked a turning point in the defendant's life.

[28]

The defendant's case

In his written submissions, the defendant submits that there is little risk of him committing a further serious offence, because he has "rehabilitated himself", and thus the degree of risk is acceptable. An ESO would, at best, not decrease the level of risk and, at worst, elevate it. If an order is made, it should not exceed 12 months. Its conditions should be moderated from those sought.
The defendant's evidence of his rehabilitation included his successful completion of CUBIT, in particular, the positive evaluation of his performance by the CUBIT forensic psychologist. The defendant's rehabilitation was also evidenced by him not having committed a serious offence or consumed drugs since 2003, although he has had three periods of living in the community.
The defendant's case was that any failings in the defendant's behaviour or non-compliance with conditions of parole or the ISO were due to the poor quality of supervision provided by Community Services, to the point that it bore responsibility for such failings.
The defendant submitted that the nature of his past management in the community whilst on parole or subject to an ISO was so deficient that, even if I am satisfied that there is an unacceptable risk within the meaning of s 5B(d) of the Act, I would exercise my discretion to not make an ESO.
To that end, the defendant cross-examined Janelle Farroway, who in 2018 was an employee of Corrective Services, about case note entries concerning the defendant's behaviour. In 2018, Ms Farroway had responsibility for managing and overseeing major aspects of high risk offender applications and was the operational guidance officer for the ESO team. In an affidavit affirmed that month, she outlined what conditions of an ESO were proposed for the defendant and how she anticipated he would respond to them.
The defendant pointed to some specific issues that were not contested. His ankle bracelet electronic monitoring device had been fitted upside-down, so that it caused him pain. Corrective Services staff had inadvertently prevented him from attending a court-ordered appointment.
The defendant submitted that whilst under supervision pursuant to the ISO, he had made complaints to Corrective Services staff that warranted investigation, but they had not been investigated. An example, taken from case notes, was that the defendant had claimed in September 2017 that a supervising Community Corrections officer had "pleaded" with him to not seek independent legal advice about his supervision. Ms Farroway said that she did not know whether an inquiry had in fact been made into this claim by the defendant, but in any event, when one read the entirety of the relevant case note, it was apparent that it was a hostile encounter in which the defendant made a number of disgruntled comments and in that context, that particular comment did not warrant investigation.
Another incident highlighted by the defendant was a report in March 2018, that the defendant had loitered outside a school and behaved inappropriately. The defendant cross-examined Ms Farroway to the effect that insufficient inquiries had been made as to whether the defendant had a legitimate explanation for being there and behaving as he did.

[29]

Consideration

The defendant's original overall sentence for the index and related offences of 17 years included a non-parole period of 12 years, reflecting a finding by the sentencing court that there were special circumstances warranting a longer period of parole than would otherwise be the case: s 44(2) of the Crimes (Sentencing Procedure) Act, 1999 (NSW). The ratio was further varied by the Court of Criminal Appeal, from 71 per cent to 67 per cent.
It is ironic that the Department took the view that the defendant's institutionalisation warranted him being detained beyond the expiration of his non-parole period, in order to complete programs that, at least on their face, could have been completed prior to then. His late release to parole deprived both the defendant and the community of the benefit of up to five years of supervised parole. An earlier release to parole may have obviated the need for this application to qualify the defendant's post-sentence liberty.
It is understandable that the delay in the defendant's release to parole and his subsequent release on an ISO, in spite of his largely successful compliance with the demands of incarceration and participation in rehabilitative programs, left him with a justifiable sense of frustration. His evidence of compliance and positive attitude to rehabilitation includes his successful completion of CUBIT and other programs, the complimentary assessments over an extended period by prison staff, his prison disciplinary record, his late release to parole, his abstinence from drugs and the fact that he has not committed any criminal offence since the index and related offences, either within or outside the prison system.
I am satisfied that the defendant's frustration was a contributing factor to the breakdown in his relationship with Community Corrections and ISO staff that in turn contributed to his breaches of parole and ISO conditions.
However, the defendant's frustration is not the only factor in play. It is telling that he was able to comply with conditions without complaint, and to the satisfaction of Corrective Services staff, until he lost his mother. Once that happened, his lack of family or other suitable emotional support in the community, coupled with his level of anxiety at the unfamiliarity of life on the outside, appears to have combined with his frustration to slowly bring him undone, in terms of strict compliance with conditions.
The issue before the Court is the level of risk of serious recidivism, reflected in the statutory terminology, as defined, of "another serious offence", posed by the defendant at present and in the future, if released unconditionally. The plaintiff and defendant can both point to significant aspects of the supporting material and other evidence to base their competing submissions as to whether there is a risk or the defendant committing another serious offence and, if so, whether that risk is unacceptable.
For the plaintiff, both forensic experts, as well as Ms Murphy and Ms Kirkwood, are of the view that the likelihood of further serious re-offending is contingent upon whether the defendant remains drug-free. If he does not, the likelihood of him committing another serious violence offence in particular, is significantly exacerbated. I accept their opinions. It is consistent with the pattern of his past offending and the characteristics of his most serious offences, being the manslaughter and the index and related offences, as I have already observed.
The defendant, on the other hand, can place significant weight on the evidence of rehabilitation, to found his submission that he is either rehabilitated or at least has made considerable progress, so that any remaining risk of him committing a serious offence is acceptable, without the need for an ESO.
The issue between the parties devolves to the question of the likelihood of the defendant reverting to the use of drugs, which in turn focusses attention on his performance over the last two years residing back in the community. It would be naïve to discount the defendant's drug-free history in prison; it is well-known that drugs, including methamphetamine, are procurable in the NSW prison system. As well, there is no suggestion that he used illegal drugs on any of the three periods he has resided in the community since 2017.
While that is important evidence in favour of the defendant, his ability to remain drug-free in the community over an extended period without supervision is another question. When released on parole following his manslaughter sentence, he did not re-offend for 20 months, but then went on to commit multiple offences in quick succession, culminating in the index and related offences. It is a reasonable inference, in my opinion, that the trigger was a resumption of his use of illegal drugs.
The fact that the defendant's behaviour was so positive within prison whist serving his 2003 sentence and then so difficult in the community in terms of compliance and management, is a relevant consideration. The death of his mother effectively marked the beginning of the end of a period of extended compliance; he started drinking alcohol and within two months was associating with AB, who it appears was not a person likely to be a positive influence, in terms of a drug-free lifestyle. Although the defendant resisted that temptation at that time, his compliance more generally was concerning.
Dr Collins' conclusion to her second report, which I partly recounted at [79] above, is pertinent. She was uncertain as to whether the level of risk posed by the defendant, being in the above average/moderate-high ranges for sexual and violent risk respectively, constituted an unacceptable risk, although of course that is ultimately a matter for the Court.
The defendant's resistance to management, both historically and since 2017, together with his drinking of alcohol and other breaches, does not inspire confidence that he has the self-discipline, personal resources or community support necessary for him to resist taking prohibited drugs in the medium term in particular, with the resultant risks that would pose to the community at large, in terms of the risk of him committing a serious offence.

[30]

Conclusion

I conclude that, to a high degree of probability, the defendant poses an unacceptable risk of committing another serious offence if he is not subject to on-going supervision. Central to my finding is the fact that, although the forensic experts do not place the risk of him committing a serious offence in the highest category, there is uniform agreement between them that if he resumes taking illegal drugs, the scenario of him committing another serious offence is enlivened. I am of the opinion that the consequences of him reverting to taking prohibited drugs and committing a serious offence are so potentially devastating that the risk becomes unacceptable: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [142].
As noted earlier, the defendant has submitted that there have been deficiencies in the quality of supervision provided by Community Corrections and the ISO staff, and that they were so egregious that I should exercise my discretion to not make an ESO.
I am not satisfied that there was any significant degree of inappropriate supervision by either section of Corrective Services staff. I do not think the defendant would have been an easy person to supervise, in light of his frustration at the degree of control implicit in the conditions imposed, once the ameliorating influence of life with his mother was lost and his behaviour started to unravel.
Whatever shortcomings existed during his past periods of conditional release, they were not so egregious as to justify me exercising my discretion to not impose an ESO for that reason.
The defendant needs a degree of supervision for the benefit of the community in terms of establishing an acceptable level of risk of committing another serious offence as well as for his own rehabilitative needs which indirectly contribute to a reduction of the risk, in accordance with the secondary purpose of the act. Dr Collins calculated that, as of December 2018, the defendant had spent 7 years and 3 months of the last 31 years in the community. The longest period was 2 years and 3 months, following his release on parole from his sentence for the manslaughter offence. Accordingly, I decline to exercise my discretion to not impose an ESO.

[32]

The conditions of the order

During the course of the proceedings for an ESO, the plaintiff amended the proposed conditions (Schedule A to the summons) so as to accept some deletions and modifications made by Fagan J when making the ISO. However, the plaintiff maintained its position from the preliminary hearing in respect of other, more significant, deletions that his Honour had made to the schedule of conditions.
In his written submissions, the defendant contended that if the Court determines that an ESO is appropriate, the only conditions imposed should be that the defendant:

Attend on his DSO when required upon reasonable notice;
Reside at a location approved by the DSO;
Attend mental health treatment as directed; and
Submit to drug and alcohol testing as required.

However, in oral submissions, the defendant changed his position, seeking instead that there be only one condition, namely, that he "sees psychologists as directed".
That proposed condition is insufficient to reduce to an acceptable level the risk of the defendant committing another serious offence. That single proposed condition would not oblige the defendant to maintain contact with ESO staff or otherwise allow for them to monitor him in the community, so that if he did resort to drug use, it would come to their attention. The defendant's earlier proposed conditions have the same deficiency.
In his periods of relative freedom since 2017, the defendant failed to maintain contact with Community Corrections including via telephone, to comply with scheduled movements or to keep his electronic monitoring device charged. Awareness of the defendant's whereabouts was, and will be, key to the capacity of Corrective Services to monitor his potential reversion to drug-taking.
On the other hand, the plaintiff's proposed conditions are unnecessarily restrictive of the defendant in light of the primary risk factor, of the defendant reverting to the use of prohibited drugs. In view of the opinions of Dr O'Dea, Dr Collins, Ms Murphy and Ms Kirkwood concerning the centrality of drug use to the defendant's risk of committing another serious offence, which I accept, I intend to modify the conditions sought by the plaintiff, so as to confine their reach to the factor that is the basis of the unacceptable risk.
Although I have not found those supervising the defendant's ISO to be at fault in any significant way in the breakdown of their relationship with him, the fact that this relationship has been, and is likely to continue to be, fractious, is relevant to my consideration of specific conditions. I have assessed each of the proposed conditions in terms of whether, if they are needed, they can be modified to reduce their potential to be counter-productive in the way Dr Collins suggests.
I note there are significant parallels between the defendant's situation and that of the defendant in State of New South Wales v Grooms (Final) [2019] NSWSC 353. That judgment was handed down after the last date of hearing in this matter. Counsel for both parties have signalled that they are content for me to have regard to it, without further submissions. In that case, the Court modified the proposed conditions for an ESO so as to provide an incentive to comply, for a defendant who, partly due to his personality, was prone to breaches. At the same time, the conditions provided the degree of control that the particular case required. I have applied a similar approach to the proposed conditions in this case.

[41]

Conditions 25 to 29 (non-association)

I will include condition 25 (new condition 18), which empowers the DSO to direct the defendant to not associate with certain people and also the modified version of condition 26 imposed by Fagan J, which excludes the defendant associating with persons he knows to be consuming, or under the influence of, illegal drugs (new condition 19). I will include proposed condition 27 (new condition 20), that the defendant not use the services of sex workers without prior approval. This is because sex workers, and places that employ sex workers, are sometimes a source of illegal drugs, as well.
In relation to proposed condition 28, which governs intimate relationships, I note the defendant's prior conviction for assaulting a woman who he was living with and the index offences, in terms of his history of assaulting women generally. The expert opinions that I accept are to the effect that the trigger for all his serious offending, including offences of those types, is drug use. I will accede to the part that requires the defendant to advise his DSO of any intimate relationship he may enter into, given his history with AB and the exposure that relationship gave the defendant to drug use, as well as the ability of the DSO to direct him to not continue in the relationship (new condition 21). This will enable the DSO to assess the suitability of the relationship, in respect of the risk of the defendant using illegal drugs, and disapprove cohabitation if appropriate. New condition 18 provides the DSO with the authority to direct non-association altogether, if that is appropriate. The balance of the proposed condition is not relevant to that purpose and is rejected.
I decline proposed condition 29, which is to the effect that the defendant is required to obtain prior approval to joining any club, organisation or social networking service. It is irrelevant to his primary risk factor of drug misuse. If the defendant joins a casual social network, any resulting intimate relationship will be subject to new condition 21.

State of New South Wales v Doherty

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)

Cited By (2)