Cornwell v Attorney General for New South Wales [2007] NSWCA 374
R v Paul Anthony Evers Supreme Court of NSW, 25 February 1992, unrep
Source
Original judgment source is linked above.
Catchwords
Cornwell v Attorney General for New South Wales [2007] NSWCA 374R v Paul Anthony Evers Supreme Court of NSW, 25 February 1992, unrep
Judgment (21 paragraphs)
[1]
Solicitors: Crown Solicitor's Office (Plaintiff)
Legal Aid New South Wales (Defendant)
File Number(s): 2015/213290
[2]
judgment
Under s 5H Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) the State of New South Wales (the State) has applied for an extended supervision order against Paul Anthony Evers. Mr Evers does not dispute the following important matters (written submissions 10 November 2015):
1. That he is a violent offender as defined because he is an adult who has been sentenced to imprisonment following his conviction for a serious violence offence;
2. His offending falls within the definition of serious violence offence because he was convicted of five counts of manslaughter (a serious indictable offence) which, in his case, consisted of conduct which caused the death of five other persons committed with the intention of causing those deaths. That latter condition is satisfied because his criminal responsibility for what would have been murder was reduced to manslaughter by reason of the then available partial defence of "diminished responsibility" by reason of abnormality of the mind. This notwithstanding the element of intent remains;
3. When the State applied for the order (by summons dated 21st July 2015) he was a supervised violent offender because he had been released to parole on 15th June 2015 to serve the balance of his sentence, which expired on 29th August 2015.
Mr Evers does not concede, but accepts, on the available evidence, that the Court is likely to find that he is a "high risk violent offender" posing an unacceptable risk of committing a serious violent offence if he is not kept under supervision within the meaning of s 5E of the Act. The real issue between the parties relates to the duration of the orders sought, and the conditions which this court considers appropriate for him to comply with in obeying the order.
Given Mr Evers concessions and his lack of serious opposition to the imposition of an order, it is appropriate to deal with the questions posed by s 5E of the Act with greater brevity than might otherwise have been the case.
[3]
Should an extended supervision order be made
I wish to acknowledge that I have been greatly assisted by the careful and persuasive oral and written submissions of counsel, Dr Hayley Bennett for the plaintiff and Ms Ragni Mathur for Mr Evers.
I am satisfied to the high degree of probability required by s 5E(2) that Mr Evers poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. Accordingly, he is a high risk violent offender. Having reached this conclusion I propose to make an extended supervision order.
In deciding to make the extended supervision order I have had regard to the matters required to be taken into account under s 9(3) of the Act. First among these matters, is the consideration of the safety of the community. This is not only a mandatory consideration under s 9(3) but also part and parcel of the primary object of the Act which is "to ensure the safety and protection of the community". The rehabilitation of offenders is an important, but secondary, object. To deal with the question of community safety, it is necessary to say something about the nature of Mr Evers offending that justified his imprisonment, and the nature and extent of his "abnormality of the mind", or to put it another way, his mental illness.
[4]
The nature of Mr Evers offending
I am basing these findings on the findings made by Newman J for the purpose of sentencing Mr Evers (R v Paul Anthony Evers Supreme Court of NSW, 25 February 1992, unrep; Annexure "C" Affidavit of C Butler, affirmed 4th August 2015).
Mr Evers was arraigned before Newman J on an indictment containing five counts of murder to be tried without a jury. To each count on the indictment he pleaded not guilty of murder, but guilty of manslaughter. Newman J found that when the offences were committed, Mr Evers "criminal responsibility was so diminished by [the] mental state from which he had been then suffering that the form of unlawful homicide committed by him was manslaughter and not murder."
Newman J found that Mr Evers engaged in a "shooting rampage at Surry Hills" on the morning of 30th August 1990. He killed five people by shooting them with a shotgun he had purchased some weeks before-hand. All five victims were residents of the social housing apartment complex where Mr Evers then resided. His first victim was a Mr Cullis. Mr Evers had been convicted of assaulting Mr Cullis some weeks previously. Mr Evers fancied (which belief he still holds) that Mr Cullis had denigrated him by referring to him as a "dole bludger" (Newman J found this was probably a delusion).
Mr Evers second victim was his half-sister, Ms Michelle Coleman, with whom he had been living in an illicit intimate relationship for a period of time. The evidence before Newman J which his Honour accepted was that she lived in fear of him and had decided to leave him on the very day that the killings occurred. Newman J found that Mr Evers was probably aware of this, indeed the reason he bought the gun was to coerce his half-sister to continue to cohabit with him.
After killing Ms Coleman, Mr Evers donned a balaclava and happened upon another resident, a Mr Cannon, whom he shot for no discernible reason.
He then proceeded upstairs upon hearing sounds coming from another flat, Mr Evers formed the delusion that the occupants were taunting him. He kicked and shot open the door, entered and shot Ms van der Westhuizer, his fourth victim, and her partner Mr Frano, his fifth victim.
He returned to his flat where he shot Ms Coleman again.
Mr Evers left his apartment and went to a shop where he bought cigarettes and a soft drink. Having refreshed himself he returned to the scene of his crime, surrendering himself to attending police "in a calm and matter-of-fact way". He was arrested, co-operating fully with the police and freely admitting what he had done.
[5]
The nature and extent of Mr Evers mental illness
The psychiatric evidence led before Newman J at the trial and on sentence was generally to the same effect, in that the three psychiatrists were of the opinion that he suffered from a serious abnormality of the mind. There was a dispute between a Dr Strum and Dr Barclay about the prognosis, essentially based upon whether Mr Evers condition was psychotic. On the basis of his evidence, Newman J made the following finding:
…I approach the question of sentence on the basis that the prisoner is suffering from an underlying and untreatable psychotic condition which can be triggered by relatively mild experiences of stress, which, when manifest, can lead him to commit acts of great violence. He thus remains and will continue to remain a danger to the community.
I interpolate that the finding that Mr Evers condition was "untreatable" is based upon the evidence of Dr Strum. I accept the evidence of Dr Furst lead before me (Exhibit A) that in context this should be understood as "incurable". During his imprisonment Mr Evers condition has been diagnosed as schizophrenia of the paranoid type. He has been treated by Justice Health and is compliant with his medication. The treatment largely, but not completely ameliorates his dangerous, psychotic symptoms.
Dr Furst and Dr O'Dea are of the view that his current treatment is somewhat sub-optimal.
[6]
Section 7(4) Reports
I have received reports from two consulting forensic psychiatrists, provided under orders made by Button J on 28th August 2015 (State of New South Wales v Evers [2015] NSWSC 1231). The report of Dr Richard Furst dated 30th September 2015 is Exhibit A and that of Dr Jeremy O'Dea dated 6th October 2015 Exhibit B. Both of the psychiatrists gave brief oral evidence. Their evidence is generally to the same effect. Mr Evers co-operated with both experts. Dr O'Dea commented, and I infer due to his illness, that co-operation was superficial, rapport was difficult to establish and Mr Evers' insight into his illness and evident remorse limited. Their diagnosis is the same. As expressed by Dr O'Dea, it is "a severe, chronic, treatment-resistant schizophrenic illness, complicated by a history of alcohol and other drug abuse in the community".
Dr Furst assessed the risk of Mr Evers committing a further serious violence offence as "moderate" (Exhibit A p 12). Dr O'Dea put it a little differently (Exhibit B p 12). He considered "it is not possible to quantify the risk of Mr Evers committing a further "serious violent offence"" but "there would be a significantly higher degree of probability that Mr Evers would be likely to commit a further "serious violent offence" … in the community in the long term" if his condition was not successfully treated and "he suffered a significant relapse".
Dr Furst made it clear that his clinical assessment of the risk depended upon the risk of relapse. He gave the following evidence at [5.5 - 30T]:
Q. You also mentioned that the form of schizophrenia was perhaps, reading from an extract of your affidavit, a chronic condition?
A. As in Mr Evers' case, chronic severe, it basically means that he has had the illness for a number of years now and it is nowadays more chronic or residual phase.
Q. In terms of the future, what would you say the prognosis is in relation to the expression of the schizophrenia?
A. Well, the illness won't go away. It is like dementia or a serious condition of the type that, a brain disorder which will be a permanent condition. The difficulty is predicting how many episodes of acute psychosis a man like Mr Evers will have in his remaining years. He is now 60. In terms of the average life span of people with schizophrenia, one might expect an episode every year or two as a ballpark.
HIS HONOUR
Q. Is that so even when it is controlled by appropriate medication?
A. Yes, your Honour. So even if someone takes medication, if you look through clinical records and averages of people with the condition, if they are a bit more stressed or having difficulties, it might still be every year or two that someone would have an episode, more acute sometimes. The difference in treatment is that the episodes tend to be shorter in duration. Without treatment it may be a much more prolonged episode or would happen more frequently but, having said that, he could be a person who gets that frequency, he may have them more often or he could have no episodes over the years. It is just difficult to predict with any clinical certainty.
The significance of this evidence should be understood in the light of two other considerations. The first is one of law. "Serious violence offence" is defined substantially by reference to the elements of the crime of murder. The second point, one of fact, is that both Dr Furst and Dr O'Dea are of the opinion that Mr Evers current treatment regime is not optimal and that his anti-psychotic medication needs to be augmented. These two factors provide the appropriate context for their opinions.
[7]
Other assessments
In a report dated 17th September 2013, a forensic team with Justice Health headed by Dr Leila Kavanagh identified Mr Evers "problem behaviour" as "reactive aggression with episodes of violent behaviour" related to his mental illness. They were of the following view:
Mr Evers presents with a number of factors that are historical and relatively unchangeable that predisposes him to future episodes of reactive aggression. These include; a relatively young age in which he was first violent, a history of serious violence, having a diagnosis of a major mental illness (Schizophrenia Paranoid Type) and presenting with antisocial personality traits. He has a history of alcohol and illicit substance abuse/dependence that resulted in hospital admissions, early maladjustment as evident by him having spent his formative years in orphanages and foster homes, relationship instability and employment difficulties. Furthermore, within a correctional facility, he demonstrated institutional misconduct.
In fairness to Mr Evers, given the length of his sentence (25 years with a non-parole period 18 years, of which he served about 22 years) his disciplinary record consisting of 4 infringements, only one of which involved fighting, is relatively good. This team also identified that his illness and its symptoms were "factors that perpetuate his propensity for future episodes of reactive aggression".
In a further report of 18th December 2014, again co-authored by Dr Kavanagh, written after he had been taken back into custody after he was perceived to have breached his parole, the same predisposition was identified (Tab 21, p 10 Exhibit CB1).
In a report of 21st February 2015, co-authored by Dr Elzbieta Kobylinska, forensic pathologist and Ms Danielle Matsuo, forensic psychologist, and an administrator within Corrective Services, the authors assessed the risk of further violent offending of a serious kind, overall, as medium. Again that assessment was bound up not only with his history of violent offending, but also with the incurable nature of his psychiatric illness. These authors formed the view that given his long incarceration and his illness, "it is unlikely that Mr Evers will be able to self-manage his risk in the community on his own". No complaint was made by any these authors about Mr Evers level of co-operation with them.
[8]
Statistical assessments
Dr Furst and Dr Kobylinska carried out recognised, statistical analyses. The results, which given the issues, I will not set out, support the clinical impression that the risk is medium.
[9]
Section 9(3)(d1)
A risk management report prepared by Community Corrections Officers J Nowrot, dated 19th March 2015 is to the effect that Mr Evers can reasonably and practicably be managed in the community, subject to the implementation and maintenance of a detailed risk management plan involving a plethora of conditions of a type familiar in this field, including electronic monitoring. Ms Nowrot also observed that consideration should be given to the imposition of a community treatment order. Such an order was made by the Mental Health Review Tribunal on 22nd May 2015, expiring on 21st November 2015. I understand that a further hearing about extending the order was held on 16th November 2015.
[10]
Programs of treatment and rehabilitation
In custody Mr Evers was compliant with the medication prescribed for his schizophrenia and on the evidence he has complied in all respects with his community treatment order, and the conditions of the interim supervision order to which he has been subject since 28th August 2015. On occasions when he has had difficulty with strict compliance he has promptly contacted his community corrections officer to alert her to his difficulty. It must be said the CCO has been appropriately flexible.
In custody Mr Evers participated in the Violent Offenders Therapeutic Programs (VOTP) from 26th May 2010 to 17th December 2010. His participation was described in positive terms and he appeared to be motivated to engage in, and contribute to, the program. He seems to have benefited from it in that he was able to express some regret for committing the index offences, but due to his chronic schizophrenia, notwithstanding its treatment, his empathy is limited and the cognitive distortions inherent in the chronic condition inhibited him from taking responsibility for his offence. He continues under the delusion that his offending was in some way provoked by Mr Cullis.
Since his completion of the VOTP he has engaged in the VOTP maintenance program, both in custody and, voluntarily since his release, initially on the parole, on 15th June 2015. He has been described as a diligent participant.
He has also undertaken educational programs likely to have a rehabilitative effect, including computer programs in custody and at TAFE since his release and he has continued an interest in studying the Japanese language. He has completed the "Getting Smart" alcohol and other drug program.
These matters suggest that he ought to be amenable to supervision in the community and that his risk of re-offending is related to the risk of relapse into psychotic symptomatology of his schizophrenia.
[11]
Compliance with obligations
In custody, on parole, when subject to his interim supervision order, and his community treatment order, he has generally been compliant with his obligations. This is especially so under his community treatment order and interim supervision order as a reading of the OIMS case notes confirms. Notwithstanding a preference for the easing of some of the more onerous conditions of the Interim Supervision Order, Mr Evers has been accepting of its constraints. All of this suggests that he is well motivated with regard to continued supervision. As I have said, he continues voluntarily to attend the VOTP maintenance program.
There were some difficulties with his previous parole. He indecently assaulted a disabled woman (no charges were laid) by rubbing her breasts because he "misread the signals". He was subject to a warning for having used cannabis, and his explanation for this event is less than convincing; and most importantly, perhaps because of an incipient relapse in his condition he commenced to decompensate, was suspected of abusing alcohol (which he denied) and was unable to maintain himself because he took up gambling on poker machines in an attempt to overcome financial difficulties. His parole was revoked and he was taken back into custody on 23rd July 2014, having been on parole since 11th September 2012. Although he has performed better so far since his release in June, these considerations show that Mr Evers requires reasonably structured and close supervision.
[12]
Prior criminal history
Mr Evers' criminal record, other than the five "index" offences, is relatively short. On their own they would not be such as to cause any particular concern. On the other hand, with hindsight the previous assault on Mr Cullis may be viewed as an instance of that reactive aggression referred to in the report of Dr Kavanagh. Likewise there was an earlier instance of assault in 1985 which was subsequently withdrawn.
Of course, the circumstances of the index offending, are of themselves matters of grave concern in the light of what is now known about his mental health. His previous catastrophically-violent history was treated by all examiners as an important factor in assessing future risk.
[13]
Views of the sentencing judge
I have referred to some of Newman J's findings above. His Honour imposed five concurrent sentences of 25 years imprisonment, the maximum sentence for one count of manslaughter with a non-parole period of 18 years. It is clear from his reasons that his Honour did so because he was convinced beyond reasonable doubt that Mr Evers' medical condition was incurable and the nature of it presented a significant danger "to society". He fixed the ratio between the head sentence and the non-parole period because he was of the view that "a longer period of supervision was warranted".
[14]
Other relevant information
I think it important to record that the evidence establishes that Mr Evers' mental illness occurred against the background of an emotionally deprived upbringing. He was rejected by his mother, who abandoned the family in his infancy. He spent some time as an orphan until his father formed a new relationship. His step-mother was cold towards him. He left school at 16, having obtained a school certificate and worked in a number of unskilled positions. He seems to have had difficulty maintaining continuous, long-term employment. He abused alcohol from about the age of 16. In his early 20's he used cannabis, notorious as a precipitant of psychotic illness in those prone to it, and experimented with cocaine and LSD. After "a terrible trip" he was first admitted to the Prince of Wales Hospital as a psychiatric patient. Subsequent medical opinion is that this was probably the first manifestation of his schizophrenia.
He was again admitted as a psychiatric patient to a hospital in Brisbane in 1985.
His marriage broke down in his late 20's.
[15]
Decision
This evidence persuades me that absent an extended period of close supervision there is an unacceptable risk of Mr Evers committing a serious violence offence as defined by the Act. And I am so satisfied to a high degree of probability. In essence, the management of this risk depends upon the provision to him, and his compliance with, adequate medical treatment to control his paranoid schizophrenia. It is also abundantly clear that the chance of materialisation of the risk bears a direct relationship to the tendency for his condition to relapse into psychotic symptoms. I accept the evidence of Dr Furst that, even when his condition is well managed by an appropriate combination of medication, relapses are likely to occur every year or so. I infer that un-medicated he is likely to decompensate rapidly into a dangerous psychosis, posing a high risk of serious violence to members of the community.
When appropriately supervised the risk is greatly reduced, but the consideration of the probability of catastrophic consequences if the risk materialises must inform the decision I will make about the appropriate conditions to be imposed with the order.
[16]
Conditions
I accept Ms Mathur's submission that the relevant question is whether the contested conditions are necessary to address, or manage, the unacceptable risk identified. However, I do not accept this requires a direct link between the proposed condition and the reduction or elimination of the risk. In particular, bearing in mind the provisions of s 9(3)(d1), the views of Corrective Services New South Wales about the contribution a given condition makes to Mr Evers reasonable and practicable management in the community remain relevant. I should point out that given previous discussion between the legal representatives of the parties, the conditions sought in the original summons were somewhat reduced by the filing, with leave in court13th November 2015, of an Amended Summons on. This further reduced the scope of the dispute. The strongest contest between the parties relates to the proposed requirement that Mr Evers wear electronic monitoring equipment as directed and provide a detailed schedule of movements. He is subject to these conditions under the terms of the interim supervision order, first imposed by Button J on 28th August 2015. I accept he finds these matters onerous, and to some extent embarrassing in his social interactions. Social interactions are a desirable outcome of his re-introduction into the community and a reduction in social isolation after a long period in prison is an important object likely to assist in managing the risk.
On the evidence before me, the electronic monitoring and the schedule of movements work together. Absent the provision of a schedule of movements which can be monitored by his Department Supervising Officer, electronic monitoring is ineffective because it cannot be ascertained that Mr Evers may be in the wrong place at the wrong time (17.10T).
The argument that these conditions are unnecessary is essentially advanced on two bases. First, it is not supported by the expert evidence, because absent a relapse into psychotic symptoms, he is likely to be compliant with other conditions, as his previous record generally shows. Secondly, it is likely to inhibit or hinder his re-integration into society.
Dr Furst did not agree that these conditions would deter the commission of further violent offences. This is because the risk presented by Mr Evers was bound up with him becoming mentally unwell. He said:
[He is] not the type of violent offender … who will walk around looking for victims and targeting individual people … monitoring with electronic monitoring to make sure that he does not go [a] geographic location, I do not think it applies to Mr Evers because of the risk involved could be towards anyone, whether it is the community where he is living that is probably a much higher risk, looking at the evidence than someone outside in the community … so in that sense monitoring him electronically will do nothing to prevent that risk from occurring or reoccurring (7.35 - 8.15T).
Dr O'Dea considered the question was not one of "psychiatric intervention". Rather, it is a question for the Department in terms of their "intervention to monitor people". He considered electronic surveillance was "debatable" as a risk management tool. He considered supervision from Mental Health Services and Corrective Services by way of "structured and monitored and supervised conduct in the community … may be sufficient without recourse to electronic monitoring" (13.25 - .35T). I interpolate electronic monitoring and the provision of a schedule is designed to facilitate the provision of a structured, monitored and supervised program for Mr Evers.
In her affidavit affirmed on 15th October 2015, read by the State in its case, Ms Danielle Matsuo, as I have said, a forensic psychologist, and employed by Corrective Services NSW as the manager responsible "for the development, coordination and management of a state-wide programs suite for all offenders … in the correctional system" expressed the view that "any conditions imposed as part of the order should have a direct relationship to Mr Evers' risk of serious violent re-offending or an indirect relationship where they assist Community Corrections to execute the order which minimises risk of serious violent re-offending" (at [15]).
At [16] she said the following:
In relation to the proposed conditions relating to electronic monitoring and schedules, compliance with supervision is not currently a high risk factor for Mr Evers as he has previously been in the community for 2 years without electronic monitoring. Further his location (or proximity to specific victims) is not necessarily related to his offending. However, electronic monitoring and schedules are tools that assist Community Corrections in the immediate term to carry out their role. This may have limited benefit for a period of time should he be subject to any stress if an order is imposed and he experiences any emotional dysregulation or decompensation in regard to his mental health during this time.
In her affidavit affirmed on 16th October 2015, Ms Clare McNaughton, a Community Corrections Officer engaged with the Extended Supervision Orders Team, expressed the view that electronic monitoring was an important component in managing and monitoring high risk offenders; it had a deterrent effect. She acknowledged monitoring would not deter an offender determined to re-offend.
Ms Ellen McCarroll, the Manager of the Metropolitan Extended Supervision Orders Team, in her affidavit sworn 14th October 2015, said that electronic monitoring is reviewed on a six monthly basis and is usually relaxed over time, depending upon progress made by the offender.
Ms Angela Rybak in her affidavit sworn on 16th October 2015 said that she is the Senior Electronic Monitoring Officer of the External and Electronic Monitoring Group within the Department. She said that electronic monitoring enabled the Department to detect if "the offender deviates from" his schedule of movements. The device assists in determining whether an offender is complying with the conditions of the supervision order or case management plan. The anklet is light and fits snuggly around the offender's ankle. It is less cumbersome than older "trackers" but it does need to be charged once a day for 2 hours, thus causing inconvenience to the wearer.
I should also add that Dr Furst was of the view that wearing the anklet and being reminded by it that he was being electronically monitored could feed into Mr Evers' paranoia, should he commence to decompensate. Dr O'Dea agreed that could be a "possibility".
I accept that wearing the anklet may inhibit Mr Evers' involvement in "pro-social" activities which are desirable for his reintegration into the community. If he is shunned by others because they detect the "tracker", this will promote social isolation which may potentiate relapse.
There is another factor. Dr Furst, and I accept this evidence, is of the view that Mr Evers evinces the negative symptoms of schizophrenia. This, amongst other things, affects his motivation. In my view, the provision of a schedule of movements and activities with which he is to comply could be a useful tool in helping him to overcome this negative symptom.
I acknowledge the strength of the argument put against electronic monitoring. In particular I respect Dr Furst's views about the matter. Mr Evers has been accepting of this form of supervision since August 2015, although he would clearly prefer not to have it.
I accept the observations of Dr Furst and Ms Matuso that, if Mr Evers does relapse and decompensate into dangerous psychosis to the point where he becomes aggressively reactive, he is likely to lash out randomly (as he did with three of his victims in 1990), to whoever is nearby at the time and place where he is supposed to be according to the requirements of his management plan.
Moreover, he is likely to remain under a community treatment order indefinitely and any non-compliance with such an order is likely to come to the attention of the responsible authorities relatively quickly.
The real risk relates to relapse notwithstanding adequate treatment, as prognosticated by Dr Furst. If this occurs, he may become non-compliant with the management plan and deviate from his schedule of movements and activities. Whilst not addressed directly in the evidence, this seems to me to be a real and not insignificant risk (see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [121]). Moreover, guidance provided by the Court of Appeal in Cornwell v Attorney General for New South Wales [2007] NSWCA 374 at [36] suggests a cautious approach should be followed when considering the safety of the community and what conditions should be imposed. Given the magnitude of the harm that may possibly ensue if this risk materialises, on balance, notwithstanding the strength of the argument against it, Mr Evers ought to remain subject to electronic monitoring and the conditions requiring the provision of a schedule of movements. These requirements hunt together.
In making this decision, I am relying upon the good sense of the officers of the Department to closely monitor Mr Evers progress when undertaking their six monthly reviews.
[17]
Curfew
Mr Evers objects to the imposition of a curfew requiring him to be at his approved address between 9 pm and 6 am unless other arrangements are approved by his District Supervising Officer. From my consideration of the case notes, it is apparent that variations of the then existing curfew (previously it was from 6 pm until 6 am), were readily approved upon Mr Evers' request for good reason such as a late return from evening attendance at his VTOP maintenance program. Ms Mathur points out that the defendant is 60 years of age and that breach of a condition can expose him to a penal sanction, including imprisonment.
Again, given that the risk relates to relapse and that his schizophrenia may give rise to a degree of agitation, anxiety and sleeplessness, the imposition of a curfew, provided it is flexibly enforced, addresses the management of the unacceptable risk. However, it should be borne in mind that the index serious offending occurred around 9 am. Having said that, it may be a mistake to take individual conditions out of the context of the suite of conditions that the management plan seeks to impose. However, given his age and his generally good compliance, the hours of curfew should be between 10:30 pm and 6 am.
[18]
Employment , finance and education
Mr Evers formally opposes conditions 16 to 18. Ms Mathur did not find it necessary to address any oral submissions in addition to her written argument. In my view, despite his age and lack of employment skills, re-entry into the workforce would be a positive thing for Mr Evers. Moreover, given the difficulty he had managing his affairs when first on parole, which difficulties lead to his parole being revoked, he, and more importantly the community, would benefit from assistance in managing his financial affairs. The case notes show that he has benefited from this so far during the currency of the interim supervision order. I would impose conditions 16 to 18.
[19]
Access to internet and other electronic communications
Conditions 28 to 31 are concerned with access to the internet and the use of electronic communication devices. These are opposed. But, I observe, Mr Evers accepts that Corrective Services ought be permitted to access and search any "phone, table device, data storage device or computer that he may use". I also observe that the former condition 43 which related to this matter has now been withdrawn.
I frankly cannot follow the logic behind this contention. It seems to me there is no point "permitting" Corrective Services to access and search electronic devices used by Mr Evers unless they first are empowered to provide him with guidelines or even rules as to his use of computers and the like. As Dr O'Dea said (17.20T):
… if you were going to access his computer, you're going to do so for a reason, and you're going to have some ideas of what he's doing - what he should be doing on a computer. And he should have those in advance in order to clarify things and maybe pre-empt things. Because of course looking at it in a straightforward manner, he may say I didn't realise I wasn't allowed to do that.
This makes eminent sense to me and I will impose the conditions as appropriate.
[20]
Duration
Ms Mathur argues that given his previous good record of compliance, the terms of the order should be limited to two or three years. I understand the rationale to be encouraging his compliance by showing him "the light at the end of the tunnel". Such an approach often may accord with good sense.
However, and regrettably, Mr Evers' condition is incurable; he will never recover. The unacceptable risk is directly related to the risk of relapse as I have said too many times. Dr Furst rejected the suggestion that the term of the orders should be for less than the maximum period of five years. He said at (11.10T):
…I still think that it would be the five-year period because the risk factors that I am able to identify from the materials which have prescribed will still apply two or three years from now and would probably still apply five years from now.
The doctor added, "the schizophrenia will still be there until he dies".
I am persuaded, in the circumstances of this case, that the order ought be for the maximum term of five years.
My orders are:
1. Under s 5F Crimes (High Risk Offenders) Act 2006 (NSW), Paul Anthony Evers is subject to a high risk violent offender extended supervision order for a period of five years from 20th November 2015 (pursuant to s 10(1) of the said Act) and expiring on 19th November 2020;
2. Under s 11 of the said Act, Paul Anthony Evers is directed to comply with the conditions set out in Schedule A (75.9 KB, pdf) to these orders for the duration of Order 1;
3. Direct that access to the court file and any document filed or tendered in support or opposition to the State's application shall not be granted without leave of a Judge of this Court. If any application is made by a non-party in respect of any documents, the parties are to be notified by the Registrar so as to be given the opportunity to be heard;
4. The State of New South Wales is permitted to provide the reports of Dr Richard Furst and Dr Jeremy O'Dea provided to the Court under s 7(4) of the said Act and the transcript of their oral testimony to:
1. Any medical practitioner or psychologist involved in the treatment or rehabilitation of Paul Anthony Evers; and
2. The departmental supervising officer responsible for the supervision of Paul Anthony Evers under these orders.
[21]
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: 19 November 2015