State of New South Wales v Donovan

Supreme Court of NSW|2015-08-19|Before: McCallum J, Brennan JJ, Gleeson CJ

Judgment

HER HONOUR: This case raises difficult questions as to the risk of future violence posed by an offender who is shortly due to be released from prison and the appropriate measures to address that risk.
After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is "the most fundamental and important of all common law rights". It is one which "cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes": Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ.
Some offenders reoffend (some, predictably so). In Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at [12], Gleeson CJ observed that the way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is "an almost intractable problem". At common law, the response is governed by the principle of proportionality, which prohibits preventive detention. The principle holds that, while it is permissible for a sentencing judge, in fixing an appropriate sentence, to have regard to the protection of society, a sentence cannot be increased beyond what is proportionate to the crime in order merely to extend the period of protection for that purpose alone: Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 472. The case of Mr Veen provides an exquisite illustration of the problem.

Background

The following summary is drawn from the State's written submissions, which were not disputed in any factual respect.

The index offence

The index offence was committed against Ms Anita Skinner, Mr Donovan's former partner. They were not in a relationship at the time. Mr Donovan and Ms Skinner were in a group drinking at his mother's house when Mr Donovan and Ms Skinner came to be alone together in the kitchen. The agreed facts on sentence described the offence in the following terms: "The Complainant opened the door and walked out onto the veranda, however the Accused grabbed the Complainant's pony tail and pulled her back into the kitchen. This caused pain to the Complainant's head and caused her to take about three steps backwards into the kitchen. The Accused shut and locked the door. The Accused said, "Ill bash you if you don't go back. The accused pushed the Complainant with two hands to her chest down into a sitting position on a chair in the dining room. The Complainant pleaded. "Don't hit me". The Accused said, "Nah, I'm not gonna hit ya." The Accused then immediately kicked the Complainant to the chin with his right foot approximately four times. The Complainant thinks she heard something crack in her jaw and felt immediate intense pain in her jaw. The Complainant put her hands up to protect her face and put her head down. The Accused was wearing white joggers whilst he kicked her. While the Complainant was looking down, the Accused grabbed her by the hair at the back of her head and used her pony tail to face her head up to him and he said, "you better look at me or I'm gonna kill you," and punched the Complainant to the left eye with his right fist. The Complainant said, "Stop it, I'm sore in the jaw." The Accused said, "I'll make you ever worser" and punched the Complainant to the left eye area with a closed fist about five or six times. The Accused continued to punch her to the head and at some stage caused a deep laceration to her forehead, above her left eye. The Accused yelled, "I'm gonna kill ya", grabbed a point of long stainless steel hairdressing scissors from the kitchen table and held them in his fist with the point facing down and rushed at the Complainant, bring her arm down in a hammer motion, stabbing the Complainant to the chest. The Accused stabbed at the Complainant twice, however only one of the motions penetrated the Complainant's clothing, and caused a minor puncture wound to the Complainant's chest, just above her right breast."
The sentencing judge remarked that Mr Donovan "was later to say he could not remember what he did because he was affected by drink."
As already noted, Mr Donovan was sentenced to a term of imprisonment for 3 years and 9 months expiring on 25 July 2015.
The index offence falls within the definition of a "serious violence offence" in s 5A of the Act. As noted in the preliminary judgment at [9], that is the first offence falling within that definition committed by Mr Donovan.

Personal and criminal history

Mr Donovan was born in Kempsey and as a child lived in Grafton. He is the youngest of two children. As a child, Mr Donovan resided with his mother, father and brother in Department of Community Services housing. His family was loving and supportive. His father was a drug and alcohol counsellor within the local Aboriginal community. He died in 2013. His mother has previously offered her place of residence to Mr Donovan on his releases from custody and gave evidence on sentencing of the index offence that she would like to have Mr Donovan live with her. Mr Donovan has two adult children with whom he has had little involvement. He has expressed interest in returning to live with his elderly mother in Grafton when released from custody.
Mr Donovan left school halfway through year 10. His schooling had been subject to several periods of suspension, including when he was sent to a boys' home in 1983. After leaving school, he was not able to obtain fulltime permanent employment and evidently has a long history of unemployment.
Mr Donovan came to the attention of the criminal justice system at the age of 14. He was first convicted for acts of violence in 1987 when he was aged 17. On that occasion, he was convicted of two counts of aggravated assault of a sexual nature and two counts of assault. He was first incarcerated in 1988.
Since turning 18, Mr Donovan has been convicted of 11 violent offences in New South Wales and in Queensland, ranging from common assault to recklessly causing grievous bodily harm (the index offence). Some of the offences involved the use of weapons. He has also been convicted of rape in Queensland. Mr Donovan has a history of domestic violence offences.
Mr Donovan also has a history of failing to comply with conditions of supervision. Due to repeated breaches of good behaviour bonds, he was re-sentenced for a number of offences between 1988 and 2010. He has failed to comply with conditions of bail and parole largely by failing to report and to abstain from alcohol.
Mr Donovan has a significant history of alcohol and drug use. He has been using alcohol since age 12 and cannabis since age 13. His usage escalated and he began using heroin and cocaine at the age of 20. Several previous residential rehabilitation programs have been unsuccessful. Substance abuse (both alcohol and illicit drugs) is linked to much of his violent offending. However, Mr Donovan told Dr Roberts, one of the court-appointed psychologists, that he had been involved in 15 to 20 physical altercations where he had been unaffected by alcohol although he claims not to have initiated any of them. Mr Donovan also acknowledged to Dr Roberts a propensity to aggression even when unaffected by alcohol. Mr Donovan has spent periods of remand at Namatjira Haven and Bennelong Haven, undertaking counselling and an alcohol rehabilitation program during 1987 and 1988 but he did not successfully complete these programs. While in custody, he has undertaken treatment for alcohol and drug issues but did not successfully complete all programs. Mr Donovan has continued to use drugs in custody (even during treatment programs) and it was submitted by the State that he did not develop any real insight into his need to better regulate his emotions and avoid problematic alcohol and drug use in the future.
While on remand, Mr Donovan committed further offences while intoxicated and continued to drink and use cannabis. As a condition of a suspended sentence he received in 2009, Mr Donovan was directed to partake in a residential rehabilitation program. He refused to do. During 2013 and 2014, he commenced the Intensive Drug and Alcohol Treatment Program in John Morony Correctional Centre but was discharged in August 2014 for his ongoing drug use.
Mr Donovan has incurred several institutional misconduct charges whilst imprisoned. He has been sanctioned for assault and intimidation in custody. There is also evidence of two episodes of sexual misconduct in Queensland while in custody.

Legislative framework

The objects of the Act are protective. Section 3 of the Act states: (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.
Those objects are not dichotomous. Plainly, the rehabilitation of high risk offenders is conducive to the safety and protection of the community. It must nonetheless be accepted that, to the extent of any tension between those objects in an individual case (for example in a case where mental incapacity precludes any real prospect of rehabilitation or "offence-specific treatment": see the case of Scott considered below), the object of ensuring the safety and protection of the community is given primacy.
As noted by Gleeson CJ in Fardon at [20], the existence of such legislation "makes it difficult to maintain a strict division between punitive and preventive detention". The blurring of that division sits uneasily with the common law principles to which I have referred.
The Act prescribes the circumstances in which the State may apply for a continuing detention order and an extended supervision order: ss 5J, 13C. The requirements of those provisions are met in the present case as Mr Donovan is both a "supervised violent offender" and a "detained violent offender" within the meaning of those provisions and the application was not made more than 6 months before the end of Mr Donovan's sentence.
The Act also prescribes the documentation that must be provided in support of either application: ss 6, 14. Those requirements were also met in the present case.
The Act prescribes pre-trial procedures which must occur before the final hearing. In accordance with those requirements, a preliminary hearing into the application was conducted by Schmidt J. Her Honour was satisfied in terms of the Act and made an order under s 15(4) appointing two qualified psychiatrists to conduct separate psychiatric examinations of Mr Donovan. As already noted, her Honour also made an interim detention order.

Requirement for finding that the applicant is a high risk violent offender

The power to make either an extended supervision order or a continuing detention order under the Act is predicated upon a finding that the offender is a high risk violent offender within the meaning of s 5E(2). In accordance with that section, Mr Donovan is a "high risk violent offender" if he is a violent offender and the Court is satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
The term "violent offender" is defined in s 4; Mr Donovan falls within that definition.
The term "serious violence offence" is defined in s 5A as follows: (1) For the purposes of this Act, a "serious violence offence"is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).
It was accepted by Mr Johnston, who appeared for Mr Donovan, that the Court is likely to be satisfied to a high degree of probability that Mr Donovan poses an unacceptable risk of committing an offence of that kind if he is not kept under supervision. For the reasons explained below, I am satisfied in those terms. It remains necessary, however, to undertake a careful evaluative assessment of that risk (as to its kind and degree); the circumstances in which it might eventuate and the kind and measure of supervision by which it might be mitigated.

Further requirement for continuing detention orders - "adequate supervision"

The Act provides a form of hierarchy (consistent with the recognition that a continuing detention order entails significant erosion of the right to personal liberty) requiring the Court first to consider whether the risk posed by a high risk offender can be addressed by an extended supervision order. It is only upon finding that such an order will not provide "adequate supervision" that the power to make a continuing detention order is enlivened. Section 5G(1) provides: 5G Continuing detention orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk violent offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.
A question not answered by the express terms of the section is, supervision adequate to achieve what end? As noted in the State's written submissions, that question has been considered but not authoritatively determined.
There is some guidance as to what "adequate supervision" does not mean. In Winters v Attorney General for the State of New South Wales [2008] NSWCA 33; 182 A Crim R 107, the primary judge had expressed the view that it meant "supervision which reduces the risk below either a high degree of likelihood of reoffending or making it 'less probable than not'" (recorded in the appeal judgment at [42]). It was not necessary for the Court of Appeal to determine that issue, but Giles JA (with whom Mason P relevantly agreed at [2]) disapproved that formulation. His Honour noted that in Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605, the Court had held that "likely" did not mean "more likely than not" (a proposition now reflected in the statute): see also Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 at [89] to [90] per Giles and Ipp JJA. Justice Giles considered, accordingly, that the primary judge's view could not stand. His Honour said at [45] "the standard of making the risk of re-offending less probable than not would have been unduly favourable to the [defendant]".
In written submissions, the State noted the provisions of s 33 of the Interpretation Act 1987 (NSW), which provides: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
It was submitted by reference to that rule of construction that the word "adequate" must be construed by reference to the primary object of the Act stated in s 3(1), to "ensure the safety and protection of the community". It was submitted that safety is ensured where the risk is eliminated or at least substantially reduced. On that basis, it was submitted that adequate supervision must mean supervision "adequate to eliminate or at least substantially reduce the unacceptable risk that the offender will re-offend". To that formulation there must, in my view, at least be added the qualification "by committing a serious violence offence".
In her careful and thorough oral submissions Ms Sharp (who, with Ms Avery-Williams, appeared for the State) expanded that proposition with the submission that supervision would only be "adequate" within the meaning of the section where it eliminated the unacceptable risk to such a level that the offender can be in the community "without causing harm" (at T86.5; T88.49 to T89.4). Again, in my view, that proposition must at least be qualified by reference to the definition of a high risk violent offender; the "high risk" with which the Act is concerned is not the risk of commission of any offence at all but the risk of commission of a serious violence offence.
In support of her submission, Ms Sharp relied upon the decision of Adamson J in State of New South Wales v Scott [2014] NSWSC 276 at [50]. The case of Mr Scott represented a particular challenge. Justice Adamson was satisfied that he was a high risk sex offender: at [72]. He had a long-standing diagnosis of chronic schizophrenia and substance abuse and a history of non-compliance with medication. He had an intellectual disability due to organic brain damage from sniffing petrol and using cannabis and alcohol from an early age. He was potentially eligible for intensive residential support upon his release but refused to make the appropriate application. That impasse was resolved by the appointment of the Public Guardian as his guardian for a limited period with the express function of making decisions on his behalf as to accommodation, advocacy and legal services.
Justice Adamson said, at [50]: "Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an "unacceptable risk". Where supervision imposed by an ESO would be inadequate to manage what would otherwise be an unacceptable risk, a CDO ought be made: s 5D. Supervision can only be regarded as "adequate" if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk."
It may be noted that her Honour spoke in terms of countering, managing and reducing what would otherwise be an unacceptable risk. I do not understand her Honour to have suggested that "adequate supervision" must be such as to eliminate all risk.
Justice Adamson concluded that offence-specific treatment would be futile in that case (due to the defendant's mental illness and poor intellect) and accordingly that a continuing detention order for the purpose of undertaking such treatment in custody would be futile; the only purpose of a continuing detention order would be to ensure the safety of the defendant and the community pending the availability of accommodation with the intensive support proposed by the State Disability Service. Her Honour concluded that a continuing detention order should be made only for a limited period while suitable accommodation was found. In reaching that conclusion, her Honour said, at [76]: "It is a substantial step to order Mr Scott's continued incarceration beyond the expiry of his term of imprisonment. A CDO ought not be made lightly. Ms Callan, who appeared on behalf of the Crown, accepted that the further deprivation of liberty entailed by a CDO was an important relevant consideration against making such an order although it is not referred to in s 17(4) of the Act. The purpose of a gaol is to incarcerate those serving sentences for criminal offences, not as substitute accommodation for those entitled, but for a CDO, to be at liberty. This consideration is particularly strong in the present case where there is no reason to suppose that suitable CJP accommodation would not have been available when Mr Scott's sentence expired, had it been applied for in a timely way."
Ms Sharp also cited the decision of Wilson J in State of New South Wales v Armstrong [2015] NSWSC 1123. That was the preliminary hearing in a case involving a high risk sex offender. The final hearing has not yet been held. Wilson J summarised the evidence as follows at [74]: "The overwhelming weight of the evidence is that the defendant continues in experiencing a strong sexual attraction to children, and he lacks both the cognitive capacity and the capacity to regulate his conduct or accept its regulation by others, that would prevent him from acting upon his sexual deviancy. Of particular relevance is the refusal of the defendant to undertake an appropriate rehabilitative programme whilst in custody, and the many and blatant breaches of his obligations when previously supervised in the community in both this State and in Queensland. Whilst it is impossible to quantify the risk posed of the commission of further sexual offences by the defendant, even if that risk is a low one it must be unacceptable, having regard to the terrible consequences of such criminal conduct. Having said that, in my view the evidence relevant to the defendant establishes that the risk is a high one."
In the passage relied upon by Ms Sharp, Wilson J said at [70]: "Whilst the Act provides for the rehabilitation of high risk offenders, the primary object of the legislation is to protect the community. That is, the interests of the individual in having his freedom and liberty are subordinated to the interests of the community to be protected from high risk offenders. Where there is a contest between the rights of the individual and the rights of the community, it is the latter which must triumph."
As already noted I accept, as reflected in those remarks, that the Act gives primacy to the object of protection. But the question remains whether requiring the elimination or even the "substantial reduction" of the relevant risk as the benchmark for "adequate protection" is the approach provided for in the Act.
On behalf of the defendant, Mr Johnston submitted, first, that what must be ameliorated is the unacceptable risk of committing a "serious violence offence" and not merely any offence. In my view, that is plainly correct.
Mr Johnston further submitted that the elimination of any such risk is an unachievable goal. He submitted that, on the proper construction of the Act, the test is whether the supervision provided by an extended supervision order will be adequate substantially to reduce the unacceptable risk that the offender will commit a serious violence offence.
Since the important common law right to personal liberty is at stake, it is necessary in resolving those competing contentions to have regard to the principle of legality. The conclusion contended for by the State (that adequate supervision must mean supervision "adequate to eliminate or at least substantially reduce the unacceptable risk that the offender will re-offend") could only be reached if the Act says so by clear words or necessary intendment. The origins and content of the principle of legality were considered recently by the High Court in Lee v New South Wales Crime Commission [2013] HCA 39 in the judgment of Keifel J at [171]-[173] and in the joint judgment of Gageler and Keane JJ at [307]-[312]. That was a split decision; Keifel J was in the minority but it was the application of the principle rather than its content that was in issue: at [29] per French CJ. Justice Keifel said at [172]-[173]: In Coco v The Queen, it was explained that the insistence on express authorisation of an abrogation of a fundamental right, freedom or immunity must be understood as a requirement for a manifestation or indication that the legislature not only directed its attention to the question of abrogation, but has also determined to abrogate the right, freedom or immunity. General words will rarely be sufficient to show a clear manifestation of such an intention because they will often be ambiguous on the aspect of interference with fundamental rights. The same requirement must apply to any interference with fundamental principles or departure from the general system of law to which Potter v Minahan drew attention. The applicable rule of construction recognises that legislation may be taken necessarily to intend that a fundamental right, freedom or immunity be abrogated. As was pointed out in X7, it is not sufficient for such a conclusion that an implication be available or somehow thought to be desirable. The emphasis must be on the condition that the intendment is "necessary", which suggests that it is compelled by a reading of the statute. Assumptions cannot be made. It will not suffice that a statute's language and purpose might permit of such a construction, given what was said in Coco v The Queen.
It is necessary in that context also to consider the remarks of Gageler and Keane JJ at [313]: The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
It may be accepted that in the Crimes (High Risk Offenders) Act Parliament has clearly identified (in s 3(1)) the legislative object of ensuring the safety and protection of the community. However, as noted by Mr Johnston, if that object is understood to mean that the safety and protection of the community must be warranted or made certain by the Court's orders, it is not literally attainable. It would not be literally attainable even if every violent offender were kept in prison for life - there would still be offences of violence committed in prisons.
As already noted, the Act does not state in express words that the position is as contended for by the State. Further, I do not think that is the position provided for by necessary intendment. Had it been the intention of Parliament to say that a continuing detention order must be made unless the supervision provided by an extended supervision order will eliminate or substantially reduce the unacceptable risk of committing a serious violence offence, that could have been said in clear words. The words of the Act are of less clarity. Section 5G says only that the Court may make a continuing detention order if the offender is a high risk offender and the Court is satisfied that adequate supervision will not be provided by an extended supervision order. In my view, the Act deliberately leaves to the Court the evaluative judgment as to the degree of supervision that will be adequate in any particular case, having regard to the objects of the Act and the discretion as to whether to make a continuing detention order in any event. I do not think it is necessary or even appropriate to articulate a test in any finer terms than those stated in s 5G. To do so risks placing a gloss on the words of the statute.
Another formulation of the correct approach contended for by the Crown was that the phrase "adequate supervision" means supervision that is adequate to reduce the unacceptable risk to one that is acceptable. That analysis finds some support in the remarks of Adamson J (set out above) and is an unexceptionable statement, as far as it goes. However, it is an approach that may provide false comfort. If that were the task, it would still be necessary for the Court to undertake the evaluative judgment as to what is an acceptable risk in any particular case having regard to the objects of the Act. For those reasons, upon analysis, in my view the search for finer precision of the task posed by the statute should be resisted. Whether an extended supervision order will provide adequate supervision is an evaluative judgement to be undertaken by the Court according to the circumstances of the individual case and having regard to the objects stated in s 3 of the Act, giving primacy to the object stated in s 3(1).

Evaluation of the risk posed by Mr Donovan

As already noted, Mr Donovan conceded that the Court is likely to find that he is a high risk violent offender. The evidence establishes that the concession was appropriate.
At the preliminary hearing, Schmidt J considered the matters alleged in the supporting documentation, as required under s 18A of the Act. Her Honour was satisfied that those matters would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order, for the reasons stated at [17] to [28] of her Honour's judgment.
With one qualification, I would respectfully adopt her Honour's analysis to support the conclusion that Mr Donovan is a high risk violent offender within the meaning of the Act. While it is not necessary to repeat that analysis, it is convenient to repeat her Honour's discussion of the report of Mr Samuel Ardasinski, a forensic psychologist employed by Corrective Services. Mr Ardasinski's particular expertise is risk assessment (which is relevant to the mandatory considerations identified in s 17(4)(c) and (d) of the Act). Justice Schmidt summarised his opinion at [22]-[24] of the preliminary judgment, as follows: 22 Mr Ardasinski is a forensic psychologist, who conducted four lengthy interviews with Mr Donovan. His report explains the various risk assessments he has undertaken, the static and dynamic variables which they seek to measure and the actuarial risk assessment tools which were used, such as the Violence Risk Scale, which measures the risk of future violent offending and the Static-99 scale, which measures the risk of future sexual offences. Mr Donovan was assessed as falling within the high risk range of being convicted of further violent offences and the high risk category of sexually reoffending. 23 Mr Ardasinski also identified dynamic risk factors relating to Mr Donovan. They included his poor work ethic, drug use and absence of any post release goals of seeking employment; his history of drug and alcohol abuse, even while in custody; their strong link with violence; and his failure at the IDATP residential drug program [explained below]. He considered that they evidenced a lack of motivation to change on Mr Donovan's part. His history of repeated domestic violence and victim blaming, his continuing violent behaviour, even in custody, as well as poor supervision compliance, in Mr Ardasinski's opinion, suggested that Mr Donovan would struggle with abstinence and supervision, if released. 24 Mr Ardasinski also identified other relevant factors to include Mr Donovan's poor insight and motivation to change his offending behaviour; his inability to have his classification in custody reduced; his repeated offending in custody, when admitted to less secure containment; as well as his lack of community support, anti-social personal aggression, poor emotional control and weapon use.
The qualification I would make in adopting that summary relates to the issue of motivation, which is considered below.
At the preliminary hearing, Mr Ardasinski's risk assessment report was put before the Court as an exhibit to the affidavit of Azan Bulbulia affirmed 21 May 2015. At the final hearing, the State called direct evidence from Mr Ardasinski and he was made available for cross examination. He did not resile in any significant respect from the views expressed in his report.
As the following discussion of the evidence reveals, Mr Ardasinski's assessment of the risk posed by Mr Donovan was not qualified in any significant respect by the evidence at the final hearing and was indeed fortified by that evidence. In the circumstances, I am satisfied to a high degree of probability that Mr Donovan poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
An evaluation of the kind and degree of risk posed must be informed by a consideration of the risk factors set out in detail at paras 71 and 72 of Mr Ardasinski's report. Those factors must also inform the assessment as to whether an extended supervision order will provide adequate supervision.

The Violent Offenders' Treatment Programme

Mr Ardasinski's report (tab 2 in the exhibit to his affidavit) describes a treatment programme available within the prison known as the Violent Offenders' Treatment Programme (VOTP). The primary object of the State's application for a continuing detention order is to enable Mr Donovan to undertake that programme. The report notes (at para 50) that Mr Donovan has not received that intensive treatment in custody, citing three reasons. One is that, until July 2010, offenders with a primary history of domestic violence were deemed unsuitable for the programme and there was limited evidence of its efficacy in the case of such offenders.
The second reason (not fully explained in the report) is that decisions regarding an offender's suitability for the VOTP fall to the senior psychologist once a referral is made. Finally, it was explained that Mr Donovan was identified in "mid-2014" as presenting a potentially high risk of future violence. Mr Donovan was first referred for the VOTP on 3 September 2014 but that referral was not "actioned" before Mr Ardasinski's assessment commencing in early 2015. There was no explanation as to why the request for a referral was not actioned at that earlier time. Mr Ardasinski completed a further referral in January 2015 but only "as a formality" - by that time, Mr Donovan no longer had adequate time in custody to complete the VOTP programme.
Without derogating from the careful explanation set out by Mr Ardasinski, the simple point appears to be that Mr Donovan was not identified as a candidate for the programme in a timely way. Now that he has been identified as a person whose needs would best be met by the VOTP programme (in the view of Corrective Services), it is sought to keep him in detention beyond the term of his sentence so that he can undergo treatment that could have been made available to him during that period.

Whether an extended supervision order will provide adequate supervision

Section 17(4) of the Act provides a mandatory but non-exhaustive list of matters to which the Court must have regard in determining whether or not to make a continuing detention order or extended supervision order.
The first mandatory consideration is the safety of the community. The section otherwise lists a series of specific matters relevant to that broad consideration The State's evidence addressed each of those matters to the extent relevant to the present case.
The State called evidence from Ms Danielle Matsuo, a registered psychologist employed by Corrective Services. Her evidence was directed to a number of the mandatory considerations listed in s 17(4). Ms Matsuo is currently responsible for the development, co-ordination and management of State-wide treatment programmes for all offenders including high risk sexual and violent offenders in the correctional system. Ms Matsuo first became aware of Mr Donovan in July of last year when he was identified as a high risk violent offender who was approaching the expiry of his sentence. She has never personally met Mr Donovan. She co-signed the risk assessment report prepared by Mr Ardasinski based on a review of the contents of that report.
Ms Matsuo gave evidence as to the Violent Offenders' Treatment Programme (VOTP). The VOTP is a prison-based residential therapy programme for men with a history of committing violent offences. The programme is designed to be of approximately 12 months duration but can take up to 14 months depending on the experience of an individual participant. The reason it is sought to detain Mr Donovan for a period of two years is to provide "motivational counselling" prior to the commencement of the programme and to allow a period after the completion of the programme for him to demonstrate that he can remain drug-free in a custodial setting.
Following Mr Ardasinski's assessment, Mr Donovan was found eligible for the VOTP in April of this year. He was offered a place on 5 May 2015 and, as recorded by Ms Matsuo, on that day declined the offer for treatment. The reason cited was that he was due for release in July 2015 and the programme was "too close to release".
Ms Matsuo expressed the opinion, based on her review of the material identified in her affidavit and her (extensive) experience in treating violent offenders, that Mr Donovan has a propensity for violence. That opinion was shared by a number of witnesses and may be accepted. Ms Matsuo said: "He exhibits an extensive history of general criminality and violence, a significant relationship between alcohol use and his violence particularly in domestic contexts and limited insight into what triggers his violent behaviour."
Ms Matsuo expressed the opinion that participation in the VOTP would give Mr Donovan "the most comprehensive chance of reducing his risk of violence re-offending".
Ms Matsuo noted that Mr Donovan's use of alcohol and cannabis in particular is "highly correlated with his criminal violence, making substance abuse a risk factor for Mr Donovan". She noted that he had been discharged from a drug rehabilitation programme, the IDATP, on 8 August 2014 for ongoing drug use (explained below).
Ms Matsuo addressed the prospect of treating Mr Donovan in the community. She stated that, if he were made the subject of an extended supervision order and remained in the Sydney metropolitan area, he would receive regular individual risk management intervention from senior psychologists employed by Corrective Services with the VOTP Maintenance and Outreach team. If he were relocated outside the Sydney metropolitan area this contact would be possible only on a monthly basis and at times by video link rather than in person.
Ms Matsuo explained that the VOTP Maintenance and Outreach programme differs from the custody-based model. The outreach programme provides ongoing management of risk factors, reinforcing knowledge and skills learned in previous treatment whereas the custody-based programme provides treatment or intensive therapy aimed to reduce risk over the long term.
Ms Matsuo conceded that Mr Donovan would be assisted by the VOTP Maintenance and Outreach programme to understand his risk factors and to devise and implement strategies to manage or avoid high risk situations. However, she stated stated that Corrective Services does not have the resources available to provide intensive violent offender treatment in the community for an individual offender. It was not explained (nor was it Ms Matsuo's role to explain) why the allocation of resources is arranged in that way. As noted on behalf of the State, Deane J in his dissenting judgment in Veen (No 2) observed (at 495) that the protection of the community "obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence". The suggestion in the State's citing that passage appears to have been that the legislation providing for continuing detention orders gives effect to those remarks. In that context, it should be observed that his Honour considered such a statutory system could "avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts" (my emphasis).
Ms Matsuo expressed the opinion that intervention from the VOTP Maintenance and Outreach Team would assist Mr Donovan's integration into the community and in moderating his immediate risk of reoffending but "would not meet the intensity or frequency of a custody-based treatment programme such as the VOTP, or be able to focus as thoroughly on his entrenched offending behaviours, core beliefs or cognitive schemas relating to his offending behaviour".
Ms Matsuo stated that the literature she has read suggests that a high intensity therapeutic treatment programme is the most effective way to reduce risk for offenders over the long term. If that is so, it is surprising that the resources for such treatment are available only for the custody-based model.
The State also relied upon evidence from a registered nurse, Mr Ivan Calder. Mr Calder is the director of the intensive drug and alcohol treatment programme offered by Corrective Services (IDAPT). He was involved, in consultation with Ms Matsuo, in developing an integrated approach to Mr Donovan's treatment. He assessed Mr Donovan to have treatment needs in both alcohol and drug addiction and violent propensity. Mr Donovan commenced participation in that programme on 4 November 2013 but was discharged on 8 August 2014 due to ongoing drug use, deceptive behaviour and lack of motivation (a consideration to which I must have regard in accordance with s 17(4)(e) of the Act). Based on Mr Calder's experience of the programme and his assessment of Mr Donovan, Mr Calder expressed the opinion that the IDATP would not be "sufficient to address Mr Donovan's needs".
Ms Matsuo and Mr Calder have together prepared a treatment plan for Mr Donovan in the event that he is made subject to a continuing detention order. If that order were made, a position would be made available for Mr Donovan to undertake the VOTP but "with modules incorporating a stronger addiction component developed for offenders with a significant substance misuse area of need". Mr Calder stated that the treatment of both violent propensity and addiction would be interwoven into one complete treatment option to be offered to Mr Donovan.
Mr Calder expressed the opinion that, unless a residential rehabilitation facility could be located which had a substantial violent offending component, residential rehabilitation under the supervision of an extended supervision order would be "insufficient to treat Mr Donovan's needs".
The State also relied upon evidence from Mr Paul Yeomans in respect of the facilities of the external and electronic monitoring group within the Department of Justice. The primary objective of that group is to monitor offenders subject to orders requiring electronic monitoring. Mr Yeomans' evidence was uncontroversial and he was not required for cross-examination.
The State also relied upon evidence from Ms Ellen McCarroll, the manager of the extended supervision orders team. Her evidence was directed to the extent to which Mr Donovan can reasonably and practicably be managed in the community (a mandatory consideration under s 17(4)(d1) of the Act). Ms McCarroll stated that, if the Court makes an extended supervision order, Ms Pauline Jeffress is likely to be his supervising officer. Ms Jeffress prepared a risk management plan for Mr Donovan which was in evidence at tab 260 of the exhibit to Mr Bulbulia's affidavit affirmed 21 May 2015 (a mandatory consideration under s 17(4)(d1)). That report provides a careful and detailed analysis of Mr Donovan's circumstances and sets out a proposed plan for his management in the community, including identifying the limitations of that plan.
Ms McCarroll's evidence was based primarily the report prepared by Ms Jeffress. Ms McCarroll had reviewed the proposed risk management plan and agreed with it. She also agreed with the limitations identified by Ms Jeffress and expressed further concerns about the efficacy of the plan in reducing Mr Donovan's risk of violent reoffending.
Ms McCarroll noted that, although the proposed conditions are stringent, Mr Donovan has been provided many opportunities to comply with conditions of parole supervision in the past and has been unsuccessful on most occasions.
As to electronic monitoring, Ms McCarroll accepted that this would assist in determining whether Mr Donovan was in breach of conditions of his supervision by attending a location which was not in his approved schedule. However, she stated "based on my experience in supervising offenders, in my view electronic monitoring in this case has a limited ability to assist with Mr Donovan's risk to the community". She listed those limitations, notably including the obvious proposition that Mr Donovan could readily access drugs and alcohol through family, friends and the community without being detected through electronic monitoring.
A principal factor in Ms McCarroll's concerns as to the likely efficacy of an extended supervision order was her opinion that "Mr Donovan does not currently have the level of motivation or commitment required to adhere to a schedule of movements".
Ms McCarroll confirmed that, if Mr Donovan were made subject to an extended supervision order, a bed would be made available for him at the Community Offender Support Programme (COSP) for up to three months. She expressed scepticism as to whether, after that period, he would be accepted into any drug and alcohol residential rehabilitation facility. She listed the results of her inquiries in that respect. However, as noted by Mr Johnston on behalf of Mr Donovan, Mr Donovan needs to be at liberty in the community in order to apply for any such position and is accordingly in something of a "catch 22" position.

Evidence of the two psychiatrists

In response to the orders of Schmidt J made at the preliminary hearing, two qualified psychiatrists examined Mr Donovan and provided reports to the Court. They were the report of Dr Samson Roberts dated 6 July 2015 and the report of Dr Jeremy O'Dea dated 22 July 2015. The Act requires the Court to have regard to those reports (see s 17(4)(b)).
Dr Roberts examined Mr Donovan for slightly over an hour. He also had the opportunity to review extensive documentation listed in his report.
Dr Roberts recited Mr Donovan's developmental history, his history of substance abuse and his psychiatric history. Much of that information has already been addressed. Dr Roberts offered a dire assessment of Mr Donovan's prospects of remaining abstinent from alcohol upon his release but noted that Mr Donovan has never been prescribed medication to facilitate abstinence. He recorded that Mr Donovan acknowledged that he would not "last too long" in the community if he resumed drinking alcohol. He said: [Mr Donovan] spoke of the problematic influence of associating with heavy drinkers and raised the prospect of rationing his alcohol consumption if he were to drink at home only. He then went on to acknowledged that this may be practical in the short term but inevitably a girl would coerce him into town or down to the riverbank and he would, in all probability, find himself back in a problematic situation. Notwithstanding his apparent insight, it has previously been documented that Mr Donovan's claims to support management of his substance use in the community are very limited and his motivation to address this risk factor has been called into doubt.
Dr Roberts was cross-examined as to whether those remarks indicated that Mr Donovan was not taking responsibility for his actions. Dr Roberts responded (T58): That is a way of looking at it, yes. In an ideal world he would refuse the propositions and stay at home and not drink and remain safe, but he's acknowledging his frailty in this regard and his vulnerability and whether it's a demonstration of his decision to abrogate responsibility or his vulnerability to have been taken over by his natural urges. It nevertheless leaves him vulnerable to getting into trouble.
At the time of his assessment, Dr Roberts expressed the view (without having any psychometric assessments available to him) that Mr Donovan's presentation at interview indicated cognitive impairment. He had not then seen Mr Ardasinski's psychometric assessments. Upon being told of those assessments, he accepted that Mr Donovan may not meet the criteria for a diagnosis of cognitive impairment. In my view, it was nonetheless clear that the doctor did identify a degree of poor functioning, which would hardly be surprising given Mr Donovan's history of alcohol abuse.
Dr Roberts concluded that individualised therapy programmes could not reliably be expected to yield a useful outcome for Mr Donovan and that pharmacological treatment and behavioural management approaches "would form the mainstay of treatment". He concluded his report with the following opinion: Having regard for the totality of the available information regarding Mr Donovan's history, the prospect of him maintaining abstinence from substances, in particular alcohol, in the community would seem negligible. The prospect of him successfully completing a drug and alcohol treatment programme in the community would seem equally poor. The value of compelling his participation in drug and alcohol programmes in custody, if he were to be subject to a continuing detention order, would be limited and, from a psychiatric perspective, would not be expected to alter his risk of relapse when ultimately released to the community.
Dr Roberts indicated that that opinion was only in part based on his initial view as to Mr Donovan's suffering a cognitive impairment.
Dr Roberts impressed as a careful and intelligent expert. I accept his opinion on that issue. His evidence establishes a substantial prospect that a continuing detention order would not have the rehabilitative effect hoped for by Corrective Services and might ultimately prove to have served no purpose other than temporary prevention.
Dr Roberts' report answered a series of specific questions posed. He considered that, in the absence of intoxication, Mr Donovan's risk of engaging in a further serious violence offence is low to moderate. He said: Use of alcohol would place him at almost certain risk of a further serious violence offence in response to perceived antagonism or overt confrontation.
Dr Roberts reiterated his suggestion that the daily administration of Antabuse (a drug which operates by creating an allergy to alcohol) would represent an approach that would have the greatest potential of supporting enduring abstinence.
Dr Roberts was specifically asked, if he thought Mr Donovan posed a risk of committing a serious violence offence that could not be managed in the community, to express a view as to the appropriate duration of a continuing detention order. He said: If it is considered that the recommendations documented above cannot reasonably be implemented in the community, the prospect of Mr Donovan avoiding a future serious violence offence is poor. I am of the opinion that a further period of incarceration will not mitigate Mr Donovan's risk when he is released in the future.
Dr O'Dea was equally emphatic as to the clear correlation between Mr Donovan's alcohol abuse and the risk of his committing a serious violence offence; he was also equally pessimistic as to Mr Donovan's prospects of remaining abstinent. However, like Dr Roberts, Dr O'Dea considered the best prospect of rehabilitation for Mr Donovan to be a residential rehabilitation programme in the community (para 84 of his report). Dr O'Dea had considerable concerns as to Mr Donovan's ability to remain abstinent in the longer term and considered that, if he did not, he would be "difficult to manage adequately and appropriately with this risk in the community in the longer term" (T73). Even so, he remained firm in the view that treatment in the community (rather than the custody-based VOTP programme) was the most appropriate next step (T78). In particular, based on his review of the empirical research, he was not persuaded as to the likely efficacy of the VOTP.

Consideration

It is clear enough that, if Mr Donovan were to return to his former drinking habits and lifestyle, he would probably pose an unacceptable risk of committing a serious violence offence. However, while there is plainly considerable ground for concern as to his real prospects of remaining abstinent, there is no suggestion that he is likely to reoffend suddenly and catastrophically within days of his release. As persuasively argued by Mr Johnston, if Mr Donovan slides back towards old ways, the supervision provided by the proposed extended supervision order will afford ample opportunity and occasion for appropriate reaction and intervention. Although there is ample evidence that Mr Donovan has failed to comply with conditions of supervision in the past, he has not previously been afforded the opportunity for such a high measure of structured support and supervision. The State's submissions appeared to equate the risk of any lapse in rehabilitation with a risk of serious violence. In my view, the nature of the risk posed by this offender warrants a more sanguine approach.
The two independent experts appointed by the Court were jointly of the view that the custody-based treatment proposed by Corrective Services is unlikely to provide any better result than community-based rehabilitation. The empirical research relied upon by Ms Matsuo does not provide a basis for any different conclusion. The evidence of the psychiatrists has persuaded me that community-based rehabilitation is the preferable option for Mr Donovan.
The critical question is whether, in face of the risk of a lapse in that rehabilitation, the proposed extended supervision order will provide adequate supervision.
I am persuaded that it will. I return in that context to the question of motivation. It is recognised by Corrective Services that Mr Donovan is poorly motivated to undertake the VOTP in circumstances where that treatment was offered to him for the first time at a point when he could not complete it without consenting to stay in gaol beyond the term of his punitive sentence. That is hardly surprising. Unsurprisingly, Mr Donovan gets depressed in gaol. Mr Ardasinski's opinion as to Mr Donovan's poor motivation focussed on his motivation to complete the VOTP in custody (para 39 of his affidavit). The solution proposed by Corrective Services is to keep Mr Donovan in gaol even longer than the time required to undertake the VOTP so as to give him "motivational counselling". I have no doubt as to the sincerity of that proposal but I do not think it is realistic.
As submitted by Mr Johnston, it does not follow from the fact that he is poorly motivated in custody that he is opposed to engaging with rehabilitation in the community - in fact he has said the opposite (para 39 of Mr Ardasinski's affidavit).
Ms Sharp submitted that the Court could not accept that Mr Donovan is motivated to rehabilitate himself, since he did not give evidence. That submission must be assessed in the context that the State bears the onus on this application but, more importantly, it is doubtful whether such evidence would have assisted the Court to evaluate the likely future course of any rehabilitation. Inevitably, had he given evidence, Mr Donovan would have claimed to be highly motivated to do anything that will see him get out of gaol. Inevitably, in light of his past record of non-compliance, that claim would have been discredited in cross-examination. So much may be assumed. I think the Act contemplates that the Court will be better assisted on such issues by the several experts whose evidence forms part of the mandatory considerations under s 17(4), particularly the independent court-appointed experts.
I accept that well-qualified experts employed by Corrective Services have given careful consideration to the intractable problem posed by Mr Donovan's addiction and its correlation with his propensity for violence. What I think is missing from their proposal is that it wholly overlooks the demoralising impact on Mr Donovan of being in custody. That is the issue which I venture to think has been more astutely assessed by the two independent experts.
It may well be that community-based rehabilitation will not be successful for Mr Donovan. This case offers no perfect or neat solution. But if rehabilitation fails, I am satisfied that there will be adequate supervision to detect the lapse in a timely way and react appropriately.
It is important in that context to consider the support offered to Mr Donovan by a non-government organisation, Tribal Dreaming, which offers a service to Aboriginal men who are released from gaol. Tribal Dreaming has assessed Mr Donovan to be eligible for its services. Its case workers are familiar with extended supervision orders and work in cooperation with Corrective Services. Its resources may be limited. I accept, as emphasised by Ms Sharp, that it will not be possible for any case officer to "shadow" Mr Donovan but Tribal Dreaming plainly offers an important complement to the limited community-based intensive treatment made possible by the constrained resources of Corrective Services.
I do not think it is necessary for Mr Donovan to be "shadowed" in order for there to be adequate supervision. As already noted, that is a view which equates the risk of his having a lapse in rehabilitation with the risk of serious offending, as if any lapse would inevitably produce a catastrophic result.
I am not satisfied that adequate supervision will not be provided by an extended supervision order. It follows that I must refuse to make a continuing detention order.
It will be necessary to hear the parties as to the precise terms of the extended supervision order to be made.
ADDENDUM: Since publishing these reasons I have realised that I omitted, owing to the pressures of time and case load under which the judgment was prepared, to include reference to an important consideration in fact taken into account by me in reaching my conclusion as to the State's application for a continuing detention order. I do not know whether there is authority to amend reasons at this stage, when the proceedings before me are concluded. On one view, the correction of an omission may be seen as being in the nature of the correction of a slip but, if that is wrong, I accept this addendum must be disregarded. Owing to the importance of the issue raised by the Crown's application (Mr Donovan's entitlement to be at liberty), I considered it preferable to publish an addendum at the risk of exceeding my authority than to leave the omission uncorrected. I should record that while the Crown has already stated its intention to bring an appeal against my judgment, I have not seen any notice of appeal and do not have any information as to the likely grounds of appeal.
The matter to which I omitted to refer was the availability to Mr Donovan of drugs in prison. In her risk management report, Ms Jeffress recorded that Mr Donovan had been using Buprenorphine. He claimed that he had been requesting for some time to be placed on the Methadone programme but had not been successful (she was unable to verify that claim at the time of writing her report). Speaking of his use of Buprenorphine, Mr Donovan told Ms Jeffress that, whilst in custody it is "in your face". He expressed the view that he would have less opportunity (than in gaol) to obtain drugs at the proposed COSP accommodation and while under the supervision proposed by the extended supervision order. Ms Jeffress considered that Mr Donovan would be able to obtain drugs in the community but that does not address the significance of Mr Donovan's point that drugs are "in your face" in gaol. That was a factor which fortified my conclusion, based on the evidence of the two independent psychiatrists, that treatment in the community (rather than the custody-based VOTP programme) was the most appropriate next step for Mr Donovan, being the course best calculated to promote his rehabilitation and so promote protection of the community in the long term.

Amendments 03 September 2015 - Typographical error at paragraph [104] 03 September 2015 - Addendum added. 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: 03 September 2015

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