State of New South Wales v Doherty

The defendant's background

1. The defendant was born in 1965 and is aged 57. Court and forensic reports that detail or summarise his relevant background are to the following effect. The defendant was born and raised in Sydney. He was his parents' sole child, and 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. 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 (now known as Community Corrections NSW) case worker, in 1990, as one of co-dependence. 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.
2. The defendant has alleged that, when he was a child, he was physically and sexually abused by a close family relative. 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 six and 12 months. When aged six, he 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.
3. 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.
4. The defendant completed the School Certificate in 1980, when aged 15. His employment history comprises "factory work", scaffolding and concreting. By 2004, when he was aged 39, his longest period of continual employment had been 18 months.
5. As to his drug and alcohol history, the defendant's first instance of drug use was the consumption of cannabis when he was aged about 13 or 14. He progressed to heroin when aged 21 or 22. After a few months, the defendant had a daily habit and continued to use heroin for 10 years, ceasing regular use when he entered a methadone program. He ceased using methadone in approximately 2005, when he would have been aged about 40. The defendant used Rohypnol, a benzodiazepine, intermittently, at least in the 1980s. In about 2002, he started using methylamphetamine. 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.
6. In 2004, the defendant told Dr Stephen Allnutt, forensic psychiatrist, 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 has a daughter, born in about 2002.

The defendant's criminal history

1. The defendant's criminal history commenced in 1983, when he was aged 16 and received recognizances for two stealing charges. Further charges followed in quick succession over the next five years for a range of dishonesty matters, that are consistent with the profile of a person with a serious drug addiction. By the time of his sentence in 1990 for a manslaughter offence, the defendant's record for non-violent offences included 14 counts of stealing or break enter and steal, two counts of receiving, 13 counts of deception, one count of obtaining a financial benefit, one count of false pretences and two counts of goods in custody. His first conviction for an offence involving violence was in 1986, being counts of assault police and resist arrest.

The manslaughter offence

1. 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 and for an offence of assault and robbery, committed nine days before the manslaughter.
2. 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. The defendant and his companion put the victim 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".
3. 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.
4. 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 victim's 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.
5. 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 imposed an aggregate sentence of 7 years and 4 months. This was made up of a term of 2 years imprisonment for the assault and robbery and a non-parole period of 4 years imprisonment for the manslaughter, with a balance of term of 1 year and 4 months. The sentences for the two offences were to be served consecutively. The defendant was eligible for release on parole on 7 January 1996.

Criminal history from January 1997 to August 2003

1. 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 from lawful custody; one count of common assault; one count of assault occasioning actual bodily harm; one count of carry a cutting weapon; and one count of possess or use a prohibited weapon.
2. 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 non-parole period of 18 months, which was for an offence of assault occasioning actual bodily harm, committed on 15 March 1999. That offence occurred when the defendant and a woman who was his girlfriend at the time were travelling on a train. His girlfriend lied to the defendant, saying that a man on the train, who was the victim, had grabbed her on her 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.
3. 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 as a result of 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 sentences of 3 months imprisonment.
4. The defendant's relationship with the Probation and Parole Service 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.

The defendant's subsequent criminal history including the index offences

1. 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. An offence of aggravated break and enter and commit serious indictable offence was taken into account on a Form 1 in respect of one of the counts of aggravated sexual assault ("the index offences").
2. 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").
3. 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 to appeal, the appeal was upheld and he was re-sentenced to 15 years imprisonment with a non-parole period of 10 years.
4. 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."
5. The break, enter and steal offence taken into account on the Form 1 was committed on the same premises as the sexual assaults. After the sexual assaults had occurred, the defendant returned to the premises 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.
6. The defendant claimed he was under the influence of methylamphetamine 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.

The defendant's progress since the index and related offences

Progress in prison

1. The defendant's behaviour in prison following his incarceration in 2003 was positive. The Risk Assessment Report that was tendered at the 2019 hearing referred to him as a prisoner who is "polite to others and compliant with routines". Although, by that time, he had committed over 30 disciplinary offences in custody, all but seven pre-dated his almost 14 years of incarceration for the index and related offences. He had committed one disciplinary offence since 2011, which was possessing prohibited goods, being 5g of tobacco. I note that on 10 December 2020, he failed a "prescribed drug test" in custody.
2. 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, the defendant completed nine sessions of the SMART Recovery Program, as well as other drug and alcohol treatment programs.
3. The defendant's total sentence expired on 6 November 2018. He was not released to parole until 16 March 2017, with only 1 year and 8 months left to run on his total sentence.

Progress on parole and subject to the ISO

1. When released to parole, 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 was planning to move to a more central location.
2. The defendant's compliance deteriorated from about that time. It transpired that he had started to occasionally drink alcohol following his mother's death. The defendant had been subject to regular breath testing and produced a positive result on two occasions. There were repeated minor infringements by him of his supervision conditions. The defendant's movements would sometimes vary from the schedule, without prior approval. Sometimes he would not be punctual, would change an appointment or would not turn up at all.
3. 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 had three children.
4. 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 methylamphetamine. To his credit, the defendant expressed his own similar concerns to Community Corrections. At times he said he had ended the relationship, but in fact it continued.
5. From October 2017, there was an escalation in the seriousness of the defendant's breaches of parole. Although the requirement for the defendant to submit to scheduling was removed in November 2017, on occasions he would be uncontactable by phone for hours or he would not comply with specific directions, such as directions 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.
6. On 23 November 2017, the defendant was directed to not attend any licensed premises with gambling facilities. Over the following 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.
7. The defendant was re-released on parole on 30 January 2018, but he continued to resist compliance with his conditions of parole. 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 in his system and he admitted to having consumed alcohol the previous day.
8. The defendant's view of these difficulties, according to the authors of the Risk Assessment Report tendered at the 2019 hearing, 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".
9. As noted earlier, in 2018 the defendant breached the ISO that had been imposed by Fagan J and subsequently extended. The circumstances of those breaches, and the issues the defendant encountered living in the community at that time, were canvassed in the 2019 judgment at [45]-[48].

The defendant's progress since 2019

1. On 15 August 2019, the defendant was charged, bail refused, with breaching his ESO by repeatedly failing to attend an appointment with a psychologist. He pleaded guilty and received a 6 month fixed term of imprisonment that expired on 14 February 2020.
2. On 6 August 2020, the defendant was charged, bail refused, with a further breach of the ESO after a drug test identified morphine and methylamphetamine in his system. He pleaded guilty and on 3 November 2020, he received a sentence of 16 months imprisonment with a non-parole period of 12 months. The non-parole period expired on 5 August 2021, such that he was released on that date. He appealed the sentence to the District Court. In the course of dismissing the appeal, Hanley SC DCJ said: "Upon his release he was prescribed benzodiazepines and developed a dependency for them particularly in conjunction with alcohol. Again that indicates an underlying propensity towards an addictive personality and he told the officer he had been using heroin for approximately two or three weeks prior to his arrest. That is a period of time in which he was aware he was in breach of the order and in particular engaging in behaviour that was primarily the [cause] of him being placed on the order and a primary factor in the concerns the Court had about him committing further offences. The fact he tested for heroin, methylamphetamine, morphine not prescribed from his sample provided 30 July 2020 is extremely concerning."
3. On 15 October 2021, the defendant was charged, bail refused, with two counts of breaching the ESO and with one count of an offence contrary to s 10 of the Public Health Act 2010 (NSW) of failing to self-isolate when directed to do so. The breach of the ESO in question was that he failed to comply with a condition requiring him to not leave his place of residence. On 14 December 2021, N Adams J granted bail to the defendant pending the hearing, which is set down for 21 October 2022. A condition of bail was that he reside at the Nunyara Community Offender Support Program Centre ("the Nunyara COSP").
4. At the time of his release, the defendant was suffering from Septic arthritis. By 15 November 2021, he had a swollen foot and was unable to walk. He was admitted to Westmead Hospital, where he remained for three weeks. In her judgment granting bail, N Adams J noted evidence to the effect that the defendant still required hospital care. Her Honour observed: "Without making any finding as to whether his care in custody is adequate, there certainly is sufficient evidence before me to be satisfied that if he was to be released he would go straight to Westmead Hospital for further treatment in relation to his condition."
5. According to Offender Integrated Management System ("OIMS") notes that have been tendered by the plaintiff, immediately prior to his release Corrective Services NSW staff were concerned that the defendant's behaviour was deteriorating. Nevertheless, they were of the view that he would be sufficiently stable to be taken to the Nunyara COSP and present at Prince of Wales Hospital ("the POWH") the following morning. An intravenous drip was removed and he was transported to the Nunyara COSP on the evening of 14 December. He was directed to have no contact with AB.
6. That evening, following a deterioration in his condition, the defendant was transferred by ambulance from the Nunyara COSP to the POWH. He was discharged on 21 December 2021. Corrective Services NSW alleged that, over the following week, the defendant made multiple unapproved changes to his schedule of movements, sometimes ignoring directions to return to the Nunyara COSP. His behaviour deteriorated over that week, culminating in threats and an episode of deliberate self-harm on 28 December 2021. He told staff that one of the residents had been "staring him down". He said that "if it carries on, I'll smash him round the head with an iron bar. I won't kill him, just crush his head". The same day, he was observed to be yelling obscenities and to throw a chair, ignoring staff requests to cease. He cut his elbow, refused medical assistance and walked out of the Nunyara COSP. He was taken into police custody that day and his placement at the Nunyara COSP was terminated.
7. A detention application was heard in the Local Court on 29 December 2021. The Magistrate found the defendant had breached a bail condition but granted bail, subject to, inter alia, a condition that he not be released until his proposed accommodation is approved by his DSO. The defendant was unable to meet the condition and bail was revoked on 4 January 2022. On 27 April 2022, following a bail review, bail was refused.

Relevant provisions of the Act

1. The Act relevantly provides as follows: "Part 1A Supervision and detention of high risk offenders … 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."
2. The defendant does not dispute that the statutory preconditions of s 5B(a), (b) and (c) are established. In relation to s 5B(b), s 5I provides: "5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision) - (a) while serving a sentence of imprisonment - (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole."
3. The defendant does not contest that he comes within the definition of "supervised offender" pursuant to s 5I(2)(a)(iii), since at the time the summons was filed, he was serving the sentence imposed on 3 November 2020 for breaches of s 12 of the Act. In relation to s 5B(c), I note that in State of New South Wales v Kaiser [2022] NSWCA 86, Simpson AJA (Bell CJ and Beech-Jones JA agreeing) determined that the reference in s 5B(c) to s 5I was a "drafting or cross-referencing error" and was intended to mean s 6. The defendant's concession in respect of s 5B(c) is made cognisant that it refers to s 6, which is as follows. "6 Requirements with respect to application (1) An application for an extended supervision order against an offender may not be made until the last 9 months of the offender's current custody or supervision. (2) (Repealed) (3) An application must be supported by documentation - (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a serious offence. (4) An application may indicate the kinds of conditions (in addition to the condition referred to in section 11 (2)) that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made."
4. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied.
5. The primary consideration in determining whether an ESO should be made is stated in s 5B(d) of the Act. The meaning of "a high degree of probability that the offender poses an unacceptable risk" is qualified by s 5D of the Act: "5D Determination of risk For the purposes of this Part, the Supreme 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."
6. Pursuant to s 5B, the power to make an ESO is discretionary; the Court "may" make an order for an ESO if the four prerequisites are satisfied. The discretionary nature of the power is also underscored by the terms of s 9(1) of the Act, reproduced below.
7. The defendant accepts that the evidence would establish to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. Again, it remains for the Court to determine if it is so satisfied.
8. The Act stipulates objects and a paramount consideration to be taken into account when determining an application: "3 Objects of Act (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. … 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order - (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. (4) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily)."

Sections 9(3)(b), (c) and (d1) of the Act: forensic reports and evidence

1. Reports have been prepared pursuant to s 7(4) of the Act which are relevant to all matters identified in s 9(3) except for ss 9(3)(h) and (h1).

Dr Kerri Eagle's report

1. Dr Eagle assessed the defendant on 12 May 2022. Following a two hour face to face assessment of the defendant and a comprehensive review of the material, Dr Eagle diagnosed the defendant as having a severe substance use disorder and an antisocial personality disorder, making the following observations: "112. [The defendant] reported experiencing perceptual disturbances (such as auditory and visual hallucinations) in the context of illicit substance use. He has reported hallucinations during times of heightened emotional distress and when experiencing physical pain or on various analgesic agents. He has also denied experiencing perceptual disturbances, after reporting them, making his account of his symptoms unreliable. [The defendant] has been described as reporting persecutory ideas and beliefs, but these appear to be primarily in the context of his interaction with authority figures and supervision. It is most likely that [the defendant] has experienced transient symptoms of psychosis during periods of substance intoxication and/or medication induced delirium. There is no information to suggest he has an enduring psychotic illness, or a substance induced psychotic disorder that is not transient. … 113. [The defendant] does display a number of severe psychological vulnerabilities, likely arising from his adverse childhood experience and exposure to traumatic events, including emotional instability or dysregulation, poor impulse control, low self esteem, poor coping skills and limited frustration tolerance, a distorted (persecutory) view of the world and others as hostile, hyper-vigilance, relationship difficulties and interpersonal deficits. These psychological vulnerabilities have manifested in various maladaptive behaviours and personality traits including substance abuse (as a coping mechanism), antisocial behaviours (ie. offending, aggression, dishonesty, irresponsibility), hostile interpersonal interactions and unstable relationships. 114. [The defendant] has a severe substance use disorder. He has engaged in the abuse of alcohol, amphetamines, opioids and prescribed medications such as benzodiazepines. He has abused substances in the community and in custody. He has demonstrated the capacity to reduce or control his substance abuse during periods of time, potentially correlating with increased stability and/or incarceration. He has relapsed into substance abuse following release into the community. This has been associated with significant stressors (such as the death of his mother) indicating a correlation with poor alternative coping skills. [The defendant] has demonstrated limited engagement in substance rehabilitation psychological interventions, although has benefited from opioid substitution treatment (Buvidal - buprenorphine injections). His substance abuse has been associated with serious offending behaviours including the Index Sexual Offences. [The defendant] will likely need to develop alternative coping methods to manage stress and emotional dysregulation to avoid relapsing into substance abuse. 115. [The defendant] has an antisocial personality disorder. He has displayed pervasive and enduring maladaptive behaviours and traits involving the disregard for and violation of the rights of others, from adolescence. He has engaged in repeated offending behaviours. He has displayed deceitfulness and dishonesty, including being convicted for several dishonesty offences. He has demonstrated poor impulse control, irritability and aggressiveness. He has shown a reckless disregard for the safety of others and has demonstrated repeated irresponsibility in relation to various obligations. He has been reported to have engaged in problematic behaviours during childhood in the context of adversity including running away from home, refusing to attend school, stealing and early substance use. It is noted that his recorded criminal history does not commence until he was 17 years old and there are no educational or other objective records regarding his childhood behaviour, although anecdotal information suggests a history of misbehaviour and conduct difficulties from earlier in his adolescence. For rehabilitation purposes, [the defendant's] personality traits are best considered in light of his adverse childhood experience and exposure to trauma." (emphasis in original)
2. Dr Eagle reported the results of some risk assessment instruments that she administered. The Static 99R, which was developed to assist in the evaluation of the risk of sexual recidivism among adult male sexual offenders, returned a score that placed the defendant in the "above average" category of offenders. Dr Eagle applied the Stable 2007 (revised 2014), which she described as a structured professional judgment tool for the assessment of sexual offenders by using empirically based risk factors to assist with the formulation of risk scenarios and to identify treatment or supervision targets in the development of a risk management plan. Overall, it placed the defendant in the "high risk" category. When combined with his Static 99R score, the defendant fell within the overall risk category of "above average". Dr Eagle noted: "Offenders within the above average risk level would be expected to have roughly twice the rate of recidivism compared to the average individual convicted of a sexually motivated offence."
3. In order to assess the defendant's propensity to commit a non-sexual violent offence, Dr Eagle administered the HCR 20 (version 3), which she described as a structured professional judgment risk assessment tool designed to assist in the risk assessment and risk management of forensic and offender adult populations. It assesses the risk of interpersonal violence which is defined as "actual, attempted, or threatened infliction of bodily harm on another person".
4. Referring to the index offence, Dr Eagle said: "131. The sexual assault occurred on a background of a criminal history that included a range of offending behaviours, suggesting [the defendant] is a versatile criminal offender. His violent and general offending behaviour arises out of entrenched and enduring antisocial attitudes present since adolescence. His antisocial attitudes and behaviours have arisen in the context of an adverse childhood experience that involved disruption to his education, primary care providers, and exposure to significant and repeated trauma including physical and sexual abuse. He has ongoing psychological vulnerabilities that give rise to maladaptive coping mechanisms, including substance use, relationship problems, poor frustration tolerance, problem solving, cognitive distortions (persecutory world view) and impulsivity. 132. A scenario that would result in an increased risk of sexual and/or violent reoffending would include a relapse into substance abuse resulting in a chaotic lifestyle, emotional instability and offending behaviours. [The defendant] is at an increased risk of impulsive behaviours towards others including serious sexual and violent offending. Factors that increase [the defendant's] risk of a relapse into substance abuse and offending include emotional distress in the context of stress and poor coping; perceived grievances and hardship; association with criminal peers and an unstable lifestyle. Employment, stable accommodation, routine, and engagement with professional supports are likely to reduce his risk of relapse into substance abuse and reoffending."

Dr Susan Pulman

1. Dr Pulman assessed the defendant face to face for a period of about 2.5 hours. Regrettably, she was unable to conduct a comprehensive neuropsychological assessment, due to three out of four scheduled appointments being cancelled by the prison and subsequent time limitations.
2. Dr Pulman commented upon the defendant's history of having suffered head injuries when aged six: "He reportedly sustained a fractured skull as an infant and was admitted to hospital for an unknown period. Although there are no records available regarding the exact nature and extent of this injury, it is common for infants and children who sustain a fractured skull to also sustain some form of brain injury. [The defendant] sustained a fractured skull prior to the age of two years, a period in which the brain is significantly vulnerable (Anderson, 2009) due to a period of increased dendritisation and synaptogenesis and when many cognitive skills begin to develop."
3. Dr Pulman identified a need for psychotherapy in order to reduce the defendant's risk factors, particularly tackling the damage done by the child sexual abuse suffered by the defendant: "There is no indication that [the defendant] has participated in any form of intense and ongoing psychotherapy in a one on one structure which is essential in order for him to learn alternate strategies of coping. He reported that he had not disclosed the nature and extent of his history of child sexual abuse during his period of incarceration as he did not feel he could trust any persons associated with either a custodial environment or community corrections services. Feelings of paranoia and distrust are common given his history. He disclosed a fear and hatred towards men, certainly stemming from more than ten years of sexual abuse and reported not being able to have a cell mate due to his fears of further victimization and inability to control his reaction. These risk factors can be addressed and ameliorated to some extent with comprehensive trauma therapy. This involves a three phase approach, the first phase of which involves establishing a sense of safety and trust. [The defendant] reported feeling benefit from having sought and attended psychological sessions with a private psychologist following the death of his mother. He reported that this was a safe environment in which he could discuss his feelings of loss and grief surrounding his mother's death. He reported that he had not disclosed to his psychologist his history of sexual, physical and emotional abuse. [The defendant] is likely to struggle to comply with directions to attend therapy with mental health services for which he had no involvement in choosing, notwithstanding he will need substantial assistance and encouragement to instigate and attend such therapy."
4. Dr Pulman administered the Risk for Sexual Violence Protocol ("the RSVP"), which is an assessment of five domains of dynamic risk factors for sexual reoffending: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Dr Pulman considered the defendant's level of risk of future sexual violence to be "above average".
5. Dr Pulman noted that the defendant: "… continues to interpret the conditions of the ESO as an ongoing punitive mechanism and maintains that he has 'served his time' and therefore any infringement on his liberty in the community is a form of 'custody' and punishment."

Dr Jeremy O'Dea and Dr Emma Collins

1. The material tendered by the plaintiff included the reports that were prepared in 2019 by forensic psychiatrist Dr Jeremy O'Dea and forensic psychologist Dr Emma Collins. I note that the defendant declined to attend his first appointment with Dr O'Dea but did attend a second one. Dr O'Dea confirmed a diagnosis of a personality disorder with significant antisocial and psychopathic traits. Dr Collins presciently said: "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.
2. As to the use of electronic monitoring and schedules, Dr Collins 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."
3. As to the length of an ESO, Dr Collins said: "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."

Section 9(3)(d1): any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community

Updated risk assessment report

1. An updated risk assessment report dated 21 September 2021 was prepared by Rochelle Pateman, who is a senior psychologist with Personality and Behavioural Disorder Services of the Department of the Serious Offenders Assessment Unit of Corrective Services NSW. Ms Pateman assessed the defendant as having an above average risk of sexual offending. Her conclusions and recommendations were as follows: "CONCLUSIONS AND RECOMMENDATIONS 79. [The defendant] is a 56-year old Australian man whose risk of sexual offending is estimated to be in the Above Average risk category relative to other men who have offended sexually. 80. In the event that the [the defendant] is considered suitable for a Continuing Detention Order (CDO), the main guarantee would be the protection of the wider community from further potential harm - his incapacitation in CSNSW custody would be a means of ensuring that the risk [the defendant] poses of committing further sexual offences or violent offences could not eventuate. In terms of programming, [the defendant] could engage in intervention to address his untreated substance abuse issues. 81. In the event that he is considered suitable for a further ESO, [the defendant] would be subject to intensive supervision, strict monitoring and case management by CSNSW, which may or may not include the following risk management strategies: a. If residing in Sydney in the future, [the defendant] could be re-referred to the community-based SOP program, provided by Forensic Psychology Services, Surry Hills. [The defendant's] previous engagement with this service has been fraught with non-attendance and passive-noncompliance. Alternatively, [the defendant] could be re-referred to CSNSW Psychological Services, or a suitable community based private psychologist, to assist his reintegration into the community through Risk Management sessions. If [the defendant] were to engage with a private psychologist it would be important to ensure clear referral targets around his presenting risk factors; b. His social contacts would be scrutinised, with the aim of increasing pro-social influences, and any relationships or associations could be monitored to ensure that [the defendant] is not using illicit drugs or associating with people who are; c. He may be subject to unannounced home visits and breath-analysis/urinalysis/drug-swab testing, and weapons prohibitions; d. He may be obliged to wear electronic monitoring equipment and to provide a schedule of his daily activities. This may assist in his impulsive decision-making, which would be relevant to his risk, considering his itinerant lifestyle. 82. [The defendant] would benefit from an assessment by an experienced forensic neuropsychologist to assess the extent and impact of any acquired brain injury. 83. The goal of any ongoing case management would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when [the defendant] is not under any form of legal restraint. At the time of writing this report, [the defendant] has currently been in the community for 43 days. 84. While [the defendant's] current situation in the community is relatively new, his approach to supervision has been lacklustre and he has generally struggled to life a prosocial existence. Some elements of his supervision under an ESO have assisted him to move in more prosocial direction, however, and with more time and support, it is considered that he can live a law-abiding life. However, he has yet to demonstrate the capacity to manage himself without resorting to substance use for any length of time in the community, and considering this is his primary risk factor for repeat violence and sexual offending, I consider it would be necessary for him to continue to be monitored and supervised for a further period."

Updated risk management report

1. A brief updated risk management report was prepared by Mick Glover, Community Corrections Officer, which explained the purpose of the proposed conditions for an ESO.

Section 9(3)(e): any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs

Section 9(3)(e1): options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time

1. I note the defendant's history of apparent reluctance to engage with therapists. I take particular note of Dr Eagle's recommendation that the defendant be required to engage in one-on-one psychotherapy and Dr Pulman's recommendation that he engage in one-on-one trauma therapy.

Section 9(3)(h): the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history

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

1. My observations when making an ESO in 2019, at [91] to [96] of that judgment, remain appropriate: "[91] 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). [92] 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. [93] 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. [94] 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. [95] 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. [96] 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."

The defendant's case

1. At the outset of the hearing, although he had very capable legal representatives, the defendant sought to address the Court, which I permitted. Essentially, he expressed frustration at having been returned to custody for what he regarded as relatively trivial matters and pessimism as to whether that pattern will change in the future. I asked the defendant what his attitude was to the recommendations made by Drs Eagle and Pulman that he engage in one-on-one counselling. He expressed a willingness to do so, especially if it could be with a particular named psychologist that he had previously been seeing.
2. Otherwise, the only issue in dispute between the defendant and the plaintiff concerned some of the proposed conditions.

Consideration

1. In my consideration of the application, I am cognisant of the terms of ss 5B(d) and 5D of the Act.
2. I am satisfied to a high degree of probability that the defendant continues to pose an unacceptable risk of committing another serious offence if not kept under supervision. There is no evidentiary basis to exercise the discretion to not make an order for an ESO and the defendant has not suggested that I do so. That being so, I move to consider the appropriate length of the ESO.
3. The defendant has made minimal progress in demonstrating an ability to reside in the community and comply with the conditions of an ESO. Mindful of Dr Collins' observations at [68] above, I conclude that the defendant has demonstrated that he does not presently have the personal resources to bring about the necessary behavioural changes in order to progress beyond supervision to an independent life in the community, free of all constraints. Clearly, there is an urgent need for him to have the benefit of one-on-one intensive therapy of the type recommended by Drs Eagle and Pulman. Despite the defendant's stated willingness to comply with such directions, I agree with Dr Pulman's observation that he is likely to struggle with directions to attend such therapy.
4. I will impose an ESO of two years, rather than the period of three years that is sought by the plaintiff. Even with the defendant attending therapy, it is likely that there will still be missteps and fractured progress as he acquires the necessary psychological skills to enable a significant reduction in his level of risk. Reasonable exercises of discretion by the DSO will be appropriate, to maintain the offender in the community without compromising the safety of the community.

Conditions of the ESO

1. Following negotiations between the parties, only three of the proposed conditions of an ESO were in contention, for which I commend them.

Compliance with the rules or by-laws or both of approved accommodation (condition 9)

1. The defendant expressed concern that if compliance with the rules or by-laws or both of approved accommodation is made a condition of the ESO, even a minor breach of house rules would, if he is charged and convicted of it, have the status of a criminal offence. He submitted that the proposed condition overlapped with another general condition, to the effect that the defendant is obliged to obey the reasonable directions of the DSO, and compliance with house rules would clearly be such a direction.
2. The plaintiff submitted that the condition ensures compliance by the defendant and that the decision whether to act on a breach would involve an element of discretion.
3. I note that the OIMS notes leading up to the breach that led to the defendant's current charges suggest that Corrective Services NSW did exercise a degree of discretion in response to alleged minor acts of defiance of directions by the defendant before acting upon more serious alleged behaviour that breached the reasonable rules of the COSP where he was residing. An alternative approach would be to rely upon condition 3, which is unchallenged and requires that the defendant must comply with any direction given by his DSO. I appreciate that the defendant is experiencing considerable difficulty in complying with directions, which bespeaks a need for clarity. For that reason, I think it appropriate to make the condition in the terms sought by the plaintiff rather than rely on that alternative approach.

Approval for the defendant to stay overnight elsewhere (condition 11) and for visitors to enter and remain at his approved address, including remaining overnight (condition 12)

1. The defendant submitted that it was unreasonable for him to be required to obtain prior approval from a DSO before spending the night away from his approved address. Further, he expressed concern about being obliged to let a DSO know "promptly" if a visitor enters and remains at his address, and to obtain prior approval from a DSO before permitting any visitor to stay the night.
2. The defendant noted that these are additional conditions to those that he presently is subject to and submitted that they are not justified. He also noted that there is an unchallenged condition that forbids him from associating with persons who are consuming or under the influence of illegal drugs (condition 22). The plaintiff responded that proposed conditions 11 and 12 are proportionate and necessary, in view of the defendant's drug use being a recognised trigger of past criminal offending and the need therefore to screen persons that he is with in private.
3. I consider it necessary for the defendant to obtain prior approval before a visitor stays overnight. I am of the view that such an obligation, in spite of condition 22, provides an inadequate degree of protection to the community against the risk of him committing a serious offence. In coming to that conclusion, I have taken into account the breaches by the defendant of conditions of parole and the ESO by consuming alcohol and drugs since 2017, together with his resistance to being directed to not associate with former partners.

A recommendation

1. Following on from my observations at [71] and [73] above and the recommendations of Drs Eagle and Pulman and Ms Pateman, I strongly recommend that the defendant be required to engage in one-on-one counselling with a psychologist or psychiatrist who is provided with copies of their reports. It would be preferable for the defendant to attend sessions with the psychologist who he informed the Court he had previously engaged with. The evidence establishes that the defendant requires additional skills to enhance his prospects of residing in the community in a manner that ensures, so far as is possible, the community's safety.
2. The defendant's lack of progress thus far indicates a need for a different approach to that previously applied. The forensic experts have identified a gap in the services provided, being a need for one-on-one therapy over an extended period. I understand that Corrective Services NSW has a preference for engaging a particular forensic psychological agency and established offender programs. The defendant has demonstrated over some years a reluctance to engage with psychiatric and psychological services. Doubtless his claim of being sexually abused over an extended period in his early childhood partly explains his reluctance to engage in group therapy. It appears that he has built a level of rapport with a particular psychologist. In the interests of the safety of the community and in the face of a risk of the defendant being subject to multiple ESOs over many years, in my view, the forensic experts' unanimous recommendation should be acted upon.

Orders

1. I make the following orders: 1. Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the existing extended supervision order made 19 July 2019 is revoked; 2. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant be subject to an extended supervision order ("the extended supervision order") for a period of two years from the date of this order; 3. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule of Conditions attached to this judgment; 4. Access to the Court's file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

Doherty Conditions of Supervision (109631, pdf)

Amendments 29 August 2022 - Typographical errors corrected in Schedule of Conditions DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2022