Solicitors:
Crown Solicitor's Office (Plaintiff)
Legal Aid New South Wales (Defendant)
File Number(s): 2015/213290
[2]
Judgment
Chronological précis of evidence
Paul Anthony Evers (the defendant) was born in November 1954, and accordingly is now aged 60 years. He was brought up in the southern suburbs of Sydney by his father and a stepmother, after the departure of his mother. His childhood was unremarkable, though marred by his mother's absence. He left school at the age of 16 years, having achieved his school certificate. Thereafter, he was employed in a number of unskilled positions.
The defendant began to use alcohol when he was aged 16. When he was aged 22, in 1976, he began to abuse cannabis. At the same time, he experimented with cocaine and the powerful hallucinogen LSD.
In 1981, then aged 26 years and living with his wife, the defendant was admitted as a psychiatric patient to the Prince of Wales Hospital at Randwick. A discharge summary of 11 September 1981 records that he had used LSD one week previously, and described it as "a terrible trip". He was given a provisional diagnosis of acute psychosis. The discharge summary also suggests the possible diagnosis of schizophrenia, but contains no further details about that possibility.
In 1982, he was sentenced for drink driving by way of a fine and disqualification.
In 1985, the defendant was again admitted as a psychiatric patient by a hospital in Brisbane. In the same year, he was charged with (amongst other things) resisting arrest and carrying a knife. He failed to appear on those charges. Eventually, in 1986, he was fined for failing to appear and resisting arrest; for possessing the knife, he was placed on a 12 month bond.
In July 1990, he was fined $500 for an offence of assault occasioning actual bodily harm. The victim of that offence was a man named Thomas Cullis.
On the morning of 30 August 1990, the defendant was living in an apartment block in the inner city suburb of Surry Hills. He was undoubtedly severely mentally ill. By that stage, his wife had left him, and he was in fact living in an intimate relationship with his half-sister. He formed the belief that Mr Cullis, who was a neighbour, had referred to him as a "dole bludger".
Regrettably, the defendant had somehow been able to purchase a shotgun about a month before. What followed was an outburst of horrific violence whereby the defendant shot five other persons with the shotgun at close range, killing them all.
The victims included Mr Cullis and the half-sister of the defendant. After shooting her in the head, the defendant donned a balaclava and shot another resident, a Mr Cannon, seemingly for no reason. The defendant then approached a flat that he believed contained persons who were taunting him. He kicked and shot open the door of the apartment, entered, and shot the two men inside.
At the conclusion of the atrocity, the defendant returned to his own apartment, lit a cigarette, and then went on a shopping expedition. He purchased a soft drink and some cigarettes. He surrendered calmly to police upon his return to his home, and freely admitted what he had done. As one would expect, he was remanded in custody.
The defendant was originally charged with five counts of murder. In a trial by judge alone in the Supreme Court of New South Wales, he relied upon the partial defence of diminished responsibility (a partial defence similar, but not identical, to the partial defence of substantial impairment now contained in s 23A of the Crimes Act 1900 (NSW)). The Crown did not dispute that the mental condition of the defendant at the time of the offences should reduce his culpability for the homicides. He was, as a result, convicted of five counts of manslaughter.
In his Honour's remarks on sentence, Newman J accepted that, in truth, the half-sister was terrified of the defendant; that she was intending to leave him; that the defendant became aware of that fact; and that that was the precipitating factor of the killings, not some real or imagined exchange of words with a neighbour.
His Honour resolved a dispute between two distinguished forensic psychiatrists with the finding that the defendant suffered from chronic, untreatable schizophrenia, and constituted a very severe risk to the community. His Honour also accepted the expert opinion of a psychiatrist that the defendant had a tendency, even when only slightly stressed, to decompensate into frank psychosis.
His Honour was content to impose fully concurrent sentences. With regard to all offences, Newman J imposed a head sentence of imprisonment for 25 years (that being the maximum penalty available for the offence of manslaughter) with a non-parole period of 18 years, each to commence on 30 August 1990. The non-parole period expired many years ago, on 29 August 2008. The head sentence expires completely tomorrow, 29 August 2015.
The defendant spent well over two decades in continuous custody. He was generally well-behaved, and did not commit offences of violence against prison discipline. He was also generally compliant with medication. On a number of occasions, he was transferred to a prison hospital as a result of his psychiatric illness.
That illness did not go into remission. Indeed, in 2005 (that being 15 years after he was first incarcerated, and at a time at which one can safely assume he was appropriately medicated) a psychiatric report shows that the defendant was still thoroughly delusional, and paranoid. To give but one example, he believed that a person fired a shot at him, but a parrot had intervened by grabbing the bullet in its beak.
As I have said, the defendant was not released at the end of his non-parole period on 29 August 2008. In 2010, he commenced the Violent Offenders Therapeutic Program (VOTP), and completed it later that year.
He was eventually granted parole on 21 August 2012, and was released to parole in September of that year. He resided for many months at a Community Offender Support Program (COSP), leaving to reside in his own flat to the south of Sydney on 8 May 2013.
As one would expect, the defendant was closely monitored whilst on parole. He was living quietly, compliant with medication, enjoying the assistance of a sponsor, and proceeding well.
After some months, however, things deteriorated. First, the defendant accepted that he had indecently touched the disabled adult daughter of his sponsor. He claimed that he had misread their friendship as extending to something more intimate. Secondly, life in the community began to overwhelm the defendant: he experienced financial difficulties, was unable to pay his rent and bills, and was said to be gambling. Thirdly and finally, he failed a drug test when he was found to have the active ingredient of cannabis in his body. He claimed that he had merely found a small amount of that prohibited drug in a public toilet and smoked it opportunistically. His parole was revoked and he was returned to custody on 23 July 2014.
On 22 May 2015, the Mental Health Review Tribunal imposed a community treatment order upon the defendant. That order will expire no later than 21 November 2015.
The defendant was released to parole again on 15 July 2015, about six weeks ago. He again resided in a COSP, and was still residing there as at the date of the preliminary hearing before me on 25 August 2015. I was told that, on the following day, he would be moving to arranged and approved accommodation in the Mt Druitt area.
Two risk reports were placed before me.
The first was a risk assessment report of 21 February 2015 authored by Dr Kobylinska, a clinical and forensic psychologist. The defendant's most recent Level of Service Inventory - Revised (LSI-R) assessment result was within the medium-high risk for reoffending. However, his overall risk has been assessed as medium, noting his significant achievements in addressing his risk of violence. They include: being free from violent behaviour for 18 years; not having drug related charges during his time in gaol; and his continued involvement in the VOTP Maintenance program for five years after completion of the treatment phase.
Dr Kobylinska expressed concern about the defendant's low empathy level, which could in turn impair his ability to form healthy intimate relationships in the future. She felt that he may make an incorrect judgment about a person's intentions, and that could increase the risk of violence. She felt that any future relationships would need to be monitored through reasonably available means.
The report also made reference to the limited community support available to the defendant. He is in contact with a brother in Melbourne, and it seems he enjoys the support of a church group.
The second was the risk management report of 19 March 2015 authored by Joyleen Nowrot, a community corrections officer. Ms Nowrot noted that the defendant is suitable to reside at the Nunyara COSP, and that the defendant may have access to a Community Reintegration Support Package. The report sets out in great detail the supervision and monitoring to which the defendant would be subject; suffice to say they are rigorous, but cannot, of course, absolutely guarantee community safety.
To complete my chronological overview, as I have said, the head sentence of the defendant expires absolutely on 29 August 2015. After that date he will be subject neither to conditional liberty nor supervision, except any that arises from the community treatment order.
Orders sought
It is in that context that the plaintiff moves upon a summons filed on 21 July 2015 seeking orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Only some of the orders contained in that originating process are sought at this preliminary stage: in short, the appointment of two psychiatrists to examine the defendant and provide reports about him to this Court, a process with which the defendant would be ordered to engage; and the imposition of an interim supervision order (ISO) to commence on 29 August 2015 with a duration of 28 days. I was also asked to make a number of mechanistic orders directed towards the final hearing, which I understand can be accommodated conveniently on 13 November 2015. The orders sought were detailed in a document entitled "consent order" that was helpfully provided to my Associate shortly before the hearing, with the agreement of both parties.
Counsel for the defendant explained that his client consents to all of the orders sought at this preliminary stage, including all of the conditions of the ISO; there may, however, be some points of dispute at later stages.
Because all of the orders sought by the plaintiff are the subject of the consent of the defendant whilst represented by counsel, these reasons will be shorter than if there had been a substantive dispute between the parties.
Submissions
The parties jointly submitted that all of the statutory preconditions for making the orders sought have been made out.
First, the defendant is a "violent offender" as defined in s 4 of the Act. That is because he is well over the age of 18 years, and has been sentenced to imprisonment following his conviction for a "serious violence offence".
In that regard, the parties were agreed that the five counts of manslaughter fall within the definition of a "serious violence offence" contained in s 5A(1)(a) of the Act. They submitted that that was because, although it may be arguable whether all cases of manslaughter fall within that definition, these examples of the offence undoubtedly do. That is because they featured, at the very least, an intention to cause grievous bodily harm to another person (to my mind, the repeated discharges of shotgun blasts at very close range unquestionably demonstrated an intention to kill). As I have explained, the verdict of not guilty of murder but guilty of manslaughter was based upon the partial defence of diminished responsibility; it was not based upon the absence of a requisite mental element for the offence of murder.
Secondly, the defendant is a "supervised violent offender" as defined in s 5J(2) of the Act. That is because he is currently under supervision whilst serving a sentence of imprisonment for a serious violence offence.
Thirdly, the procedural aspects of s 7 have been the subject of compliance by the plaintiff.
Fourthly, it was agreed between the parties that the test for the making of an extended supervision order (ESO) contained in s 5E of the Act may be understood as a state of satisfaction, to a high degree of probability, on the part of a judge of this Court that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
Fifthly, it was agreed that the test for the ordering of compulsory psychiatric examinations and for the making of an ISO is contained in ss 7(4) and 10B(b) of the Act. That test is based upon satisfaction on the part of a judge of this Court that the matters alleged in the documentation that forms the evidence of the plaintiff at the preliminary hearing would, if proven, justify the making of an ESO at a later stage.
The parties were content for me to understand that test as being analogous to the test applied by a magistrate in committal proceedings in determining whether a prima facie case has been made out against a criminal defendant: see Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; and State of New South Wales v Reay [2014] NSWSC 1362 at [29].
Finally, the parties were agreed that that test, on the evidence placed before me by the plaintiff, has indeed been made out.
Determination
I accept the joint submission of the parties that all of the threshold statutory preconditions for the making of the orders sought have been established.
I also accept the joint position that the central test for the ordering of compulsory psychiatric examinations and for the imposition of an ISO has been established. I say that for the following reasons.
First, the defendant calmly committed the unlawful homicide of five human beings whilst armed with a firearm that he himself had purchased. Were it not for his mental condition, he undoubtedly would have been convicted of murder. A mass killing with a firearm by a mentally disturbed individual, even one that occurred 25 years ago, leads one to keep considerations of public safety in the forefront of one's mind.
Secondly, his chronic and severe schizophrenia (which certainly has paranoid aspects to it) underpinned that offending. That mental illness has not abated or entered into remission, even after the passage of 25 years. It almost certainly will need to be carefully controlled for the rest of his life.
Thirdly, I accept that the defendant has done his best on parole in difficult circumstances. In particular, he has been compliant with all steps taken towards managing his illness, including taking medication. Nevertheless, it is a matter of serious concern that, towards the end of his time on parole, things began to overwhelm him. It is also a matter of serious concern that he saw fit to ingest a mood and mind-altering prohibited drug whilst on parole and whilst being medicated for schizophrenia. I also think that one is entitled to approach his version of how he came to possess and smoke the cannabis with a degree of caution.
Fourthly, I infer that the defendant will be leading a very isolated life once he leaves the COSP and returns to live on his own in a small apartment in a large metropolis. His brother lives almost 1000 km away, and the degree of support he will receive from the church members is not clear, especially after the admitted indecent touching of the daughter of his sponsor.
Fifthly, the defendant has been either incarcerated or (for a reasonably short period) subject to conditional liberty for almost exactly 25 years. Whilst it is true that he will be subject to a community treatment order for a few more months, I consider that it could be dangerous for his supervision to end abruptly tomorrow.
Sixthly and finally, it is true that the defendant has not been violent since the bloodbath that occurred in Surry Hills, either whilst in custody or at liberty in the community. But it will be recalled that that mass homicide was precipitated by noting more than either a trivial verbal insult or by the impending departure of a romantic partner. Either way, it demonstrated that the mental illness of the defendant can cause him to respond to reasonably minor stressors by way of crimes of violence of the utmost gravity.
In all of the circumstances, bearing in mind all of the applicable factors contained in s 9(3) of the Act that are to be taken into account with regard to the making of an ESO (and to all of which I have briefly referred in this judgment), I am amply satisfied that the documentary evidence placed before me by the plaintiff would, if proven, justify the making of an ESO.
As a result of that, it can be seen that s 7(4) requires me to make the orders for compulsory psychiatric examinations.
As for the making of an ISO, it is true that s 10B vouchsafes to me a discretion not to do so. But for all of the reasons that I have given above, there is no question of me exercising a discretion not to impose an ISO in this case.
Nor do I consider that any proposed condition of the ISO is inappropriate or unduly harsh.
It follows that I propose to make the order for compulsory psychiatric examinations, and to impose an ISO with strict conditions.
Finally, I regard all of the orders that create a timetable of preparation for the final hearing of the matter as appropriate.
Orders
I make the following orders:
1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):
1. Appointing Dr Richard Furst, psychiatrist, and Dr Jeremy O'Dea, psychiatrist, to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 2 October 2015.
2. Directing the defendant to attend those examinations.
1. An order:
1. pursuant to s 10B of the Act, that the defendant be subject to an interim supervision order commencing at midnight on 29 August 2015 ("the interim supervision order");
2. pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days expiring at midnight on 25 September 2015; and
3. pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Schedule A to the Summons filed on 21 July 2015.
1. The matter be listed before a Judge of this Court for renewal of interim orders before 25 September 2015, that date being 23 September 2015.
2. The plaintiff is to file and serve the evidence on which it relies at final hearing by 16 October 2015.
3. The matter be listed before a Judge of this Court for renewal of interim orders before 23 October 2015, that date being 21 October 2015.
4. The defendant is to file and serve any evidence on which he relies at final hearing by 23 October 2015.
5. The plaintiff is to file and serve submissions on which it relies at final hearing by 2 November 2015.
6. The defendant is to file and serve any submissions on which he relies at final hearing by 9 November 2015.
7. The matter is listed for final hearing on Friday 13 November 2015 with an estimate of one day.
8. Liberty to relist the matter on 2 days' notice.
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State of NSW v Evers Schedule A (143 KB, pdf)
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Decision last updated: 28 August 2015