State of New South Wales v Doherty

Supreme Court of NSW|2021-12-14|Before: Adams J, Ierace J

Judgment

By summons filed on 21 October 2021 the State of New South Wales ("the State") seeks an Extended Supervision Order ("ESO") against the defendant, Stuart Doherty, under the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHRO Act"). An Interim Supervision Order ("ISO") and orders appointing relevant experts were also sought, pursuant to ss 7(4) and 10A of the CHRO Act.
A preliminary hearing was conducted before me on 14 December 2021. The defendant opposed the making of interim orders on the basis that the unacceptable risk test had not been satisfied. As at the date of hearing, the defendant was subject to an ESO imposed by Ierace J on 19 July 2019 (see State of New South Wales v Doherty (Final) [2019] NSWSC 920), although that order had been suspended due to other lawful custody.
On 15 October 2021, the defendant was arrested, and bail refused for breaches of his ESO. But for that arrest his ESO would have expired on 26 January 2022. By reason of s 10(1A)(b) and (2) of the CHRO Act, the ESO was suspended whilst he was in custody bail refused on his fresh charges. I released him on strict bail conditions on 14 December 2021. It was common ground at the conclusion of the preliminary hearing that the 60 days the defendant served on remand were to be added to the duration of his ESO. Accordingly, his ESO expires on 27 March 2022.
The preliminary hearing was conducted before me on 14 December 2021. Ms McEwen of counsel appeared for the State and Dr A Hughes appeared for the defendant. The application comprised the summons filed on 21 October 2021, the affidavits of James Palmer affirmed on 20 October 2021 and 17 November 2021 with annexures and written submissions from both parties. Some short evidence was called from Kelly Grabham, who is the High Risk Offender Applications and Operational Governance Officer with the ESO Team.

Factual background

Before turning to the relevant legislation, I propose to set out some of the factual background to the application.
The following summary is derived from the matters set out in the judgment of Ierace J mentioned above, the Risk Assessment Report ("RAR") of Ms Rochelle Pateman, Senior Psychologist, dated 21 September 2021 and the Risk Management Report ("RMR") of Mr Mick Glover, Community Corrections Officer, dated 11 October 2021.
The defendant was born in 1965 and is currently 56 years old. He was the only child of his parents and was raised by his mother after his father left when he was a child. Mr Doherty reported having been sexually assaulted by his 12-year-old half-brother when he was four years old. He began absconding at the age of three and spent periods living between his mother's and grandmother's homes. He left school in primary school and has had some periods of casual employment as an adult, the longest period of employment being 18 months. His mother, with whom he had a close relationship, died in July 2017.
The defendant commenced using cannabis at the age of 13 or 14 and was a regular user until the age of about 29. He began taking heroin at the age of 21 or 22 and continued for around 10 years. He began a methadone program at the age of 32. The defendant reported using amphetamines regularly in the months before the index offence and believed this contributed to his commission of the offences.
The defendant has not previously been diagnosed with a psychiatric illness, although he disclosed a history of perceptual disturbances, including auditory hallucinations, and paranoia. He has a history of head injuries including sustaining a fractured skull as an infant and a serious head injury at the age of six. The author of the RAR, Ms Pateman, believed it was likely that the defendant met the criteria for Antisocial Personality Disorder ("ASPD") due to his pervasive pattern of disregard for and violation of the rights of others, since the age of 15.

Criminal history

The defendant has a lengthy criminal history commencing in 1983 when he was 17 years old. Between 1983 and 1990 the defendant was convicted of various property and prohibited drug offences. In 1990, the defendant was convicted of manslaughter and robbery with striking. The facts of the manslaughter offence can be summarised as follows.
On 31 August 1989, the defendant and his companion followed the victim home after observing him in a shop with a pay packet in his pocket. While the victim slept, they climbed through an open window and attempted to steal the pay packet from the victim's trousers. The victim woke up while the defendant was in the premises and the defendant punched him, rendering him unconscious. Nine days later, the defendant and his co-offender returned to the same premises. While they were looking for money the victim awoke again, and the defendant punched him in the head six times. The co-offender then hit the victim across the stomach with an iron bar. The victim was found deceased two days later. The cause of death was determined to be blood loss from injuries to the victim's spleen and kidney. The victim had several other substantial injuries including to his head. The defendant claimed that he was under the influence of heroin and Rohypnol. Hunt J found that the offences were drug-related and 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". The defendant was sentenced to a minimum term of 4 years imprisonment with an additional term of 1 year and 4 months for manslaughter and a fixed term of 2 years imprisonment for robbery.
The defendant was released to parole on 30 January 1997. In the five-year period from August 1998 to August 2003 the defendant was convicted of three counts of shoplifting, two counts of larceny, four counts of goods in custody, three counts of enter enclosed lands, 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 and one count of attempt escape lawful custody. He was also convicted on four counts 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.
Of the offences of violence, the assault occasioning actual bodily harm offence occurred in March 1999 when the defendant and his then girlfriend were on a train. The defendant's girlfriend told him that a man (the victim) 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 from the needle but managed to escape. The defendant pursued him along the train until being subdued by passengers and police. The defendant told police he had been diagnosed with Hepatitis A and C.
In May 2003, the defendant was charged with two counts of common assault after he punched his then girlfriend twice in the face, on the second occasion while she was lying on the ground. He told police, "she wouldn't let me out, I hit her a few times". The defendant was on bail for those offences at the time he committed the index offence.

Index offence

The defendant pleaded guilty to the index offence, committed on 25 July 2003. On that date, shortly after midnight, the defendant removed the flyscreen and entered the home of the victim, a 55-year-old woman with whom he had no prior relationship. The victim awoke while he was in the premises and went to look for the source of the noise. The defendant then grabbed the victim and wrestled her to the floor, striking her several times to the face. He then tied the victim's hands behind her back, forced her into the bedroom and undressed her. The defendant had penile-vaginal and penile-oral intercourse with the victim. He fled the premises upon hearing the victim's daughter return home. The defendant took approximately $500 cash and a credit card from the premises.
When the defendant was arrested on 7 August 2003, he was found in possession of 2.2kg of cannabis, $5,000 cash and 2g of amphetamines.
The defendant pleaded guilty to one count of aggravated break and enter and commit a serious indictable offence (the serious indictable offence being aggravated sexual assault); two counts of indecent assault; and three counts of aggravated sexual assault, with a Form 1 offence of break, enter and steal taken into account. The defendant also pleaded guilty on a separate indictment to supplying a prohibited drug (cannabis), with two offences of goods in custody and one of possess prohibited drug considered on a Form 1. Following a successful appeal, the defendant was sentenced to 15 years imprisonment with a non-parole period of 10 years: see Doherty v R [2006] NSWCCA 133.

Parole and ISO/ESO

The defendant became eligible for parole on 6 November 2013 but was not released on parole until 16 March 2017. He was initially compliant with his parole conditions, but his behaviour deteriorated following the death of his mother in July 2017. In November 2017, after the parole condition that he provide a schedule of his movements was removed, he was reportedly uncontactable for hours and was found to be gambling and drinking at licensed premises as well as behaving erratically in public, requiring police intervention. Parole conditions were imposed that he not attend any licensed premises with gambling facilities. He breached this condition and was returned to custody on 27 November 2017. He was again released to parole on 30 January 2018 but was found to be resistant to supervision. His parole was again revoked on 28 March 2018 after 57 days in the community. The defendant served the remainder of his sentence in custody.
The State made application for an ESO and on 6 November 2018 the defendant was released on an ISO pending a final hearing. He was directed to reside at the Integrated Support Centre (ISC) at Campbelltown. Whilst on that ISO the defendant failed to attend multiple appointments, including with court-appointed experts as well as with medical, housing and psychology services. On 31 December 2018, the defendant was charged with two counts of failing to comply with his ISO, for which he was sentenced to 8 months imprisonment with a non-parole period of 6 months. He returned to custody on 1 January 2019 after 56 days in the community.
On 30 June 2019, the defendant was released into the community, initially subject to an ISO, and subsequently an ESO (from 19 July 2019). His response to supervision was described as poor and he was ejected from the ISC due to a deterioration in his behaviour including alleged inappropriate touching of a female staff member. He failed to attend two appointments with Forensic Psychology Services ("FPS") and was subsequently charged with failure to comply with the conditions of his ESO. He was arrested on 15 August 2019 after 46 days in the community and sentenced to 6 months imprisonment.
On 14 February 2020, the defendant was released on an ESO and his response to supervision appeared to have improved. His Department Supervising Officer ("DSO") reported that he was initially compliant with electronic monitoring and scheduling, but his behaviour deteriorated rapidly following the removal of electronic monitoring on 14 May 2020. He was referred to drug and alcohol counselling, but his counsellor reported that he was not motivated to engage, and sessions were brief. His DSO reported that he obtained two prescriptions for benzodiazepines to which he developed a dependence, in conjunction with alcohol. The defendant admitted to heroin use and drug tests indicated the presence of methamphetamines, morphine and codeine. The defendant also engaged in gambling during this period and later told a Justice Health nurse that he had been consuming two shots of tequila each day to cope with the grief following his mother's death.
On 6 August 2020, the defendant was charged with failing to comply with his ESO for morphine and methylamphetamine use. He was sentenced to 16 months imprisonment with a non-parole period of 12 months. On 10 December 2020, while in custody for that breach, the defendant failed a prescribed drug test after testing positive for unprescribed buprenorphine. On 22 February 2021, the defendant stated that he was withdrawing from buprenorphine and had not used in three days. On 11 March 2021, the defendant admitted to ongoing intravenous substance use and sharing needles. On 12 March 2021, the defendant told a Justice Health nurse that his drug of choice was heroin and he had been using intravenous buprenorphine daily while in custody. He also reported consuming illicit methadone about four months prior, as well as Avanza (an anti-depressant) and Fincol (disinfectant). The defendant said he had his own "fit" (syringe for injecting) which he gave to a Corrections officer. On 23 March 2021, the defendant was placed on opioid substitution treatment and commenced weekly suboxone depot injections.
On 5 August 2021, the defendant was released on an ESO and relocated to Wyong to live with his partner. On 21 August 2021, Community Corrections staff reported that he appeared to be under the influence of drugs, which he denied. On 24 August 2021, the defendant reported for a drug test, which was negative. He told his Community Corrections Officer (CCO) that he was taking suboxone and had not had any illegal drugs. On 10 September 2021, the defendant told Community Corrections he did not want to engage in alcohol and drug counselling because he preferred to address mental health issues with his private psychiatrist. On 13 September 2021, he reported that he had been arguing with his partner and on 22 September 2021, he reported that things had "settled down" and he was willing to engage in drug and alcohol counselling. On 24 September 2021, the defendant notified Community Corrections that he had tested positive to COVID-19. It became apparent that he had not isolated following his test, but he indicated that he would comply with self-isolation requirements.
On 15 October 2021, the defendant was arrested and charged with two counts of failing to comply with his ESO and one count of failure to comply with a self-isolation direction contrary to s 10 of the Public Health Act 2010 (NSW). He was remanded in custody until his release on 14 December 2021, when I granted the defendant bail in relation to those matters.
The defendant's obligations under the current ESO, initially imposed for a period of 12 months, were suspended on each occasion he was in custody, pursuant to s 10(2) of the CHRO Act.

Legislative scheme

The primary object of the CHRO Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders so as to ensure the safety and protection of the community. Another object of the CHRO Act is to encourage such offenders "to undertake rehabilitation".
The test for the making of an ESO is contained in s 5B of the CHRO Act, which provides that: 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.
A "serious offence" is defined in s 4 of the CHRO Act as either a "serious sex offence" or "a serious violence offence". A "serious sex offence" is defined in s 5(1) of the CHRO Act.
Section 5I(1) of the CHRO Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in subs (2)(a)(ii) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature.
Section 10A of the CHRO Act provides that this Court may make an order for an ISO if it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (emphasis added)
Thus, the statutory requirements for making an ESO are that the offender: is a serious sexual offender as required by ss 5 and 5B of the CHRO Act; is a supervised offender (within the meaning of s 5I of the CHRO Act); that he was and still is in custody or supervision at the time the application was made; and that the application was commenced within time as required by s 6 of the CHRO Act. In addition, the Court must be 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: s 5B(d). The statutory requirement for making an ISO is that it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
The Court's power to make an ISO or an ESO is discretionary. Section 9(1) of the CHRO Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. Section 9(2) and (3) of the CHRO Act provides mandatory considerations to which the Court must have regard in determining whether to make an ESO. I shall consider the supporting documentation relevant to these factors below.
Section 7(3)-(5) of the CHRO Act provides for a preliminary hearing of an ESO application and is in these terms: (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) registered psychologists, or (iii) qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.

Section 9(3) factors

In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the factors set out in s 9(3). Those factors are as follows.

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: s 9(3)(b)

As this is a preliminary hearing these reports have not yet been obtained.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner: s 9(3)(c)

In addition to the RAR dated 21 September 2021, two reports of Dr Emma Collins, clinical and forensic psychologist, dated 21 December 2018 and 26 February 2019 and two reports of Dr Jeremy O'Dea, consultant forensic psychiatrist, dated 10 January 2019 and 28 February 2019 were annexed to the affidavit of James Palmer. The RAR of Kristy Murphy, senior psychologist, dated 3 July 2018 was also before the Court.
Dr Collins opined that the defendant was not in the "most high-risk cohort of offenders" but it was nonetheless "evident based on his history that [the defendant] poses a risk of further sexual violence… heightened if he lapses back into drug use". This risk was assessed overall as being "above average". Dr Collins noted that the defendant could offend opportunistically against a partner or a stranger and may engage in physical violence as part of that act. She concluded that while there was "some risk" of the defendant committing a serious sexual offence, "there are no clear indicators of acute risk". Dr Collins also considered that the defendant was at a moderate to high risk of violent recidivism. She concluded that the defendant's risk would "maximally increase should he return to drug use (and specifically amphetamine/methamphetamine use)".
Dr O'Dea did not diagnose the defendant as suffering from a major psychiatric illness but believed that the defendant's history of significant substance abuse pointed to a substance use disorder. It was noted that it his offending was generally related to his history of substance abuse and the associated lifestyle and financial difficulties. Dr O'Dea further opined that the defendant would satisfy the diagnostic criteria for a personality disorder with antisocial and psychopathic traits. Dr O'Dea stated that while personality disorders are usually "enduring conditions" with "limited amenability to treatment", they "are often considered modifiable, particularly with external supportive controls such as those described [in the ESO conditions]". Dr O'Dea opined that it was reasonable to assume the defendant would have to remain totally abstinent from alcohol and drugs in the community in order to minimise his risk of engaging in further violent or sexual offending. It was noted that while the defendant did not have a recorded history of alcohol abuse, he had reported problems with alcohol in 2017 and 2018 and such behaviour could create difficulties in controlling other behaviours in relation to drugs and gambling. In light of this, Dr O'Dea recommended that the defendant remain abstinent from alcohol use in the long term. In relation to risk, Dr O'Dea stated that it was reasonable to consider that the defendant's risk of engaging in further violent or sexual offending in the long term "may be significantly high", particularly if he consumed illicit drugs. In his opinion, there may be a high probability of the defendant committing a serious offence (as defined in the CHRO Act) if the defendant did not receive successful treatment, supervision and monitoring in the community. Dr O'Dea believed such interventions would be required for a period of at least five years, with monitoring and adjustment every six months.

The results of any statistical or other assessment: s 9(4)(d)

The results of the following statistical assessments were set out in the 2021 RAR.
The defendant's risk of sexual re-offending was assessed on the STATIC-99R as being "above average", meaning higher than 74.3% of male sexual offenders in the sample. The rate of sexual recidivism for male sexual offenders ranged from 10 to 20 per cent over five years depending on the risk factors of the sample group.
In the 2018 RAR the defendant was assessed using the STABLE-2007 assessment, which takes into account dynamic risk factors to assess the risk of sexual offending. The defendant was assessed as having a "moderate" density of criminogenic needs relative to other male sexual offenders. His areas of concern were relationship stability, impulsivity and cooperation with supervision. This assessment was again conducted in 2021 and the defendant was assessed as having a "high" density of criminogenic needs. In addition to the risk factors as assessed in 2018, the defendant had increased risk in negative emotionality and hostility towards women.
The STABLE-2007 and STATIC-99R scores were combined to generate a composite assessment of risk/needs on which the defendant was assessed as "above average" or category IVa.
The RAR concluded that the defendant's overall risk was "above average" for sexual offending relative to other male sexual offenders. Ms Pateman opined that due to the severity of his previous sexual offending, it was possible that future sexual violence could approach the threshold of a "serious sexual offence" as defined in the CHRO Act. The defendant's most likely "risk scenario" was forced sexual intercourse against a stranger female, likely to occur in the commission of a non-sexual offence. In the alternative, it was noted that if the defendant engaged in physical violence towards a domestic partner or ex-partner, there may be a risk of sexual violence. In both scenarios the defendant's likely motivation was assessed as sexual gratification.

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

The RMR of Mick Glover set out the conditions which, in the opinion of Community Corrections, were sufficient to manage the defendant's risk in the community. The proposed conditions are similar to that which the defendant has been subject to under his existing ESO (under which he has not committed any "serious" offences, as defined by the CHRO Act).

Proposed conditions

The RMR of Mr Mick Glover set out the proposed conditions, in addition to the compulsory conditions under the CHRO Act. Those conditions include a schedule of movements and a curfew, with electronic monitoring to ensure the defendant's compliance with his schedule of movements. An accommodation condition was proposed, noting that the defendant has previously demonstrated a disregard for such conditions and has a history of committing serious offences late at night. Conditions in relation to education, employment and finance were proposed in order to limit any problematic gambling behaviour or illegal drug use, further noting that the defendant had previously advertised in-house hairdressing services in breach of Public Health Orders. Conditions in relation to alcohol and other drugs were proposed, noting that substance abuse was considered a primary risk factor for the defendant. Association conditions were proposed to promote pro-social contacts, which was considered an essential part of the defendant's re-integration and establishment of a law-abiding lifestyle. A search and seizure condition was proposed in order to assist in compliance, especially with alcohol and drug conditions as well as the proposed weapons condition. Further conditions in relation to internet access, electronic communications and pornographic, violent or classified material were proposed, noting that these conditions would manage the risk associated with an increase in sexual preoccupation (as reported prior to the index offence) and the establishment of any online relationships. Restrictions on changing his personal details and appearance were proposed to aid enforcement. Medical treatment conditions were proposed in order to address the defendant's long-term use of illicit substances.

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: s 9(e)

The RAR noted that the defendant commenced the Custody-Based Intensive Treatment Program ("CUBIT") (now known as the High-Intensity Sex Offender Program ("HISOP")) on 30 May 2012 and completed the course on 24 April 2013. The 2018 RAR found that the defendant had identified several areas that contributed to the commission of the index offence including anti-social influences, intimacy deficits and difficulties with general and sexual self-regulation. The defendant was also able to identify some indicators of poor self-management including ceasing engagement in social activities such as exercise, appearing withdrawn and in a low mood and being disorganised and stressed.
The defendant also participated in the CONNECT program, a general therapeutic program at Goulburn Correctional Centre, attending nine out of ten sessions. There was no indication in the program notes as to his level of engagement and insight during the program. The defendant was also offered the opportunity to participate in the EQUIPS-Addiction program but withdrew his consent shortly before the program commenced. He later reported that he did not participate because he had recently completed the CONNECT program and he was employed in custody at the time.

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: s 9(e1)

The proposed conditions as set out in the RMR are directed to reducing the likelihood of the offender re-offending by addressing his criminogenic needs as outlined in the RAR. As set out above, the defendant was found to have a high density of criminogenic needs relative to other male sexual offenders. His primary risk factors were relationship stability, impulsivity and cooperation with supervision. The 2018 RAR noted that drug use was an active risk factor and remained "the most significant risk factor for [the defendant]". The OIMS notes from 2020 also indicated that the defendant had been "very resistant to counselling" in relation to drugs and alcohol. Ms Pateman also identified a lack of interpersonal intimacy skills, problems with planning and self-awareness, boredom and poor coping with life stressors as risk factors for the defendant. The conditions of the ISO are directed to increasing the defendant's stability in the community by, inter alia, ensuring he remains abstinent from drugs and encouraging the development of pro-social contacts and a law-abiding lifestyle.
The RAR observed that the defendant's approach to supervision had been "lacklustre" and he had generally struggled to live a pro-social existence. The author opined that some elements of his ESO had "assisted him to move in a more prosocial direction" and that "with more time and support, it is considered that he can live a law-abiding life". The report found however that the defendant had not yet demonstrated the "capacity to manage himself without resorting to substance use for any length of time in the community" and, considering this was his primary risk factor, "it would be necessary for him to continue to be monitored and supervised for a further period".

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(e2)

The above reports described the defendant's previous difficulties in complying with the conditions of his ESO. His primary difficulties appear to arise from non-compliance with drug and alcohol conditions, gambling and difficulty attending appointments. At the hearing of this application the defendant informed the Court that he would comply fully with the conditions of his ESO or any ISO that the Court imposed.

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: s 9(f)

The defendant's history of non-compliance with the conditions of his parole and his ISO/ESO are summarised above at [18]-[25].

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: s 9(h)

The defendant's criminal history is summarised above at [10]-[17]. It includes a number of serious offences, including manslaughter, prior to the index offence.

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

The sentencing judge noted the defendant's background as summarised above and that the defendant took "little responsibility for the offending" and "little empathy was shown for the victim". Delaney DCJ observed that the defendant had a history of violence and assaults, although no previous history of sexual assault. The sentencing judge found that "little weight [was] to be accorded to a suggestion that he had real insight into his criminal behaviour".
The Court of Criminal Appeal observed that the defendant had a "disturbed" background as summarised above. His subjective circumstances were noted to include a history of drug use and a "very extensive criminal record". The Court noted that the defendant reported a history of auditory hallucinations but that he had not been diagnosed with any current psychosis.

The defendant's submissions

It was submitted that the following factors weighed against a finding of unacceptable risk. First, that the index offence occurred in 2003 and there was no suggestion of similar offending since that time, including when subject to the previous ISOs and ESO. In particular, counsel for the defendant noted that although the defendant had a "high degree of [criminogenic] needs", he did not have a pattern of sexual offending and it was not suggested that he had any ongoing deviant sexual interest. Secondly, counsel for the defendant noted that he had completed the CUBIT program in 2013 and demonstrated insight into his sexual offending. It was submitted that the LSI-R indicated only a medium-high risk of general offending. Also, the most recent RAR placed the defendant in an "above average" risk category for sexual offending and concluded that "it is possible that future sexual violence could approach the threshold of a 'serious sexual offence' as defined [in the CHRO Act]" (emphasis added).
In relation to the defendant's drug use in July 2020 it was submitted that this had to be weighed against his long period of sobriety prior to this breach. As to his most recent breaches (relating to self-isolation requirements under the Public Health Act), it was submitted that these charges had no bearing on the risk of committing a serious offence. As to his non-compliance generally, it was submitted that this factor was of limited utility in determining his risk of re-offending as the author of the RAR concluded that "consistent, minor non-compliance with requirements was likely to be a standard behaviour pattern for [the defendant]".

The State's submissions

The State submitted that the absence of any behaviour indicating a deviant sexual interest was irrelevant as no such risk factors were present prior to the index offence. It was submitted that his primary risk factor was illicit drug use, which remained a risk factor in light of recent breaches including in 2020 and 2021. Counsel for the State noted that the defendant had not consistently engaged in drug and alcohol counselling, in part due to his stated desire not to do so, compounded by disruptions caused by COVID-19. It was further submitted that the defendant's overall level of criminogenic need had only increased since Ierace J imposed the ESO in July 2019, as set out in the RAR.

Consideration

At this preliminary stage, the Court is required to have regard to the supporting documentation and assume it would be proved at a final hearing. It has been held that the task of the Court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983.
I turn to the terms of s 5B of the CHRO Act. Given the nature of the index offence summarised above, I am satisfied that the defendant 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: s 5B(a). As for s 5B(b), I am satisfied that the defendant is a "supervised offender" within the meaning of s 5I of the CHRO Act, in that he is currently on an ESO. I am also satisfied that the defendant satisfies the requirements of s 5B(c) of the CHRO Act, and that the application was made within the relevant time frame. The defendant accepted that the requirements of s 5B (a), (b) and (c) of the CHRO Act were met in this matter.
The only real dispute in this preliminary application is whether I am satisfied to a "high degree of probability" that the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision: s 5B(d). It has been held that such a standard of proof is higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
As for what is meant by the phrase "unacceptable risk", in Lynn v State of New South Wales [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [58] that the phrase is to be given its everyday meaning within its context in and having regard to the objects of the CHRO Act. The evaluation is "… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]). In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J observed at [7] that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate".
What the court needs to be satisfied of is not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an "unacceptable risk" of doing so: State of New South Wales v Sharpe [2017] NSWSC 469 at [52]. The facts and circumstances must provide a "firm foundation, rather than a merely reasonable basis, for the conclusion that the risk posed by the offender is unacceptable absent supervision. Reasonable satisfaction is of itself insufficient": State of New South Wales v Holschier (No 3) [2019] NSWSC 341 at [56]-[57].
I have had regard to the supporting documentation in the context of the relevant statutory factors and I am satisfied that, if proved, that material would enable the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another "serious offence" if not kept under supervision under the order. In arriving at that conclusion, I have had regard to the paramount consideration of the safety of the community as required by s 9(2) and to the s 9(3) factors summarised above. I have also had regard to the relevant statistical tools. The defendant's risk of sexual re-offending is above average.
It is of some concern that the defendant's criminogenic needs have remained, in the language of the author of the most recent RAR, "largely unchanged" since the initial application for an ESO was first sought. The defendant's 12-month ESO has been extended on a number of occasions due to the frequent incarceration of the defendant for breaches of the order. This has led to the regrettable result that the defendant has not been able to demonstrate whether he can establish a protective network within the community which, in turn, could assist to reduce his risk.
The defendant's risk factors remain substance abuse and his tendency to act impulsively. As to the former, the 2018 RAR noted that his extensive substance misuse is significantly linked to problems in his life, his problematic relationships with others and his offending behaviour. If he began abusing illicit substances again, it seems inevitable that he would commit crimes to fund his habit which carries the risk of escalating offending to that of a violent sexual nature. In this context his relapses are of significant concern.
During the preliminary hearing the defendant interrupted to clarify matters at various times. Those comments as well as numerous accounts in the material before me suggest that he has little insight into how his agitated and defensive style does not lend itself to functioning in a non-custodial context. As the RAR author noted, his "entrenched anti-authority and criminal thinking have made it difficult for Mr Doherty to make substantive changes over the course of his ESO". It was also observed that "[i]t appears he has felt the need to assert himself and his way of doing things, even when these have been objectively maladaptive". Besides the protective factors afforded by the ESO, the defendant has limited social supports.
It is to be accepted that the index offences occurred some time ago. But, as the State submitted, the defendant was incarcerated for most of this period. The fact remains that the defendant has not had sufficient opportunity to establish that he can avoid committing serious offences in the community. Although his numerous breaches of the supervision orders have been of a non-violent and non-sexual nature, they have been consistent. This means that the defendant has not been able to demonstrate that he is able to live a stable, crime-free existence.
On the positive side, the RAR author opined that Mr Doherty could live a law-abiding life in the future with more time and support. It is also favourable that he was able to complete the HISOP course in custody. In fact, his time in custody provides more cause for optimism than his time in the community.
I have no doubt that the defendant poses a significant risk of committing further offences, including sexual offences. The question is whether that risk extends to serious sexual offences as required by the CHRO Act. Given the low test for the purpose of making these preliminary orders I am so satisfied. For these reasons, I propose to order an ISO for 28 days and make orders regarding the court-appointed experts.
Section 11 of the CHRO Act provides that an ESO or ISO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate" and provides the scope of possible conditions. The discretion to impose such conditions is broad: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65. This court has noted the need for such conditions to meet the object and purpose of the CHRO Act: State of NSW v McQuilton (Final) [2019] NSWSC 265.
There was no issue raised as to the proposed conditions. It was accepted on behalf of the defendant that if an ISO were granted it should be on the same conditions as the ESO he is currently serving.

ORDERS

In consideration of the above I make the following orders: 1. Pursuant to ss 10A and 10C of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an interim supervision order for a period of 28 days commencing on the expiry of the defendant's current extended supervision order. 2. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. I appoint two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed. 2. I direct the defendant to attend those examinations. 1. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct the defendant to comply with the conditions set out in the Schedule to these orders for the period of the supervision order referred to in Order 1 above. 2. Access to the court file in respect to any document in this proceeding shall not be granted to a non-party without the leave of a judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar, so as to allow them an opportunity to be heard in relation to the application for access.

Schedule of Conditions of Supervision - Stuart Doherty (86108, pdf) 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: 09 February 2022

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