State of New South Wales v FGH

Procedural Requirements for Application

1. Pursuant to the terms of s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act"), in order for a CDO to be made by the Court, the Court must be satisfied that: the defendant is an offender who is serving a sentence of imprisonment for a serious offence, either in custody or under supervision in the community; the application for the CDO is made not more than nine months before the defendant's total sentence ends; and, there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order. [1]
2. As can be seen from the foregoing recitation of facts, the defendant is currently serving a sentence for a serious offence, as that term is defined in the Act. Further, the application was made within nine months of the conclusion of that sentence.
3. As a consequence, at the final hearing for a CDO and, relevantly, at the hearing for an IDO, the major issue is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention. It is important to note that the test for satisfaction requires the Court to be satisfied of the unacceptable risk if detention is not ordered.
4. In the course of the proceedings before the Court, an issue arose as to whether the Court had jurisdiction, were it so minded, to order an ISO, even though the State of New South Wales has not applied for such an order. The provisions of s 5B of the Act deal with that which is required before the Court is able to make an order for an ESO.
5. Relevantly, the preconditions would be satisfied and, once more, the only issue would have been whether the offender posed an unacceptable risk if not kept under supervision. The procedural requirements for the making of an ESO are slightly less confined, but, relevant to the current application, do not require separate assessment.

Jurisdiction to Make ISO and IDO

1. The Act permits the Court to make an order for IDO if, "in proceedings on an application for a [CDO]", it appears that the defendant's current custody will expire and if the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO. [2] Such an order commences on the day fixed in the order for its commencement and expires, relevantly, on the day specified, not exceeding 28 days from the date on which it commences.
2. An ISO may be made by the Court if "in proceedings for an [ESO]", it appears to the Court that the defendant's custody will expire before the proceedings are finally determined and the matters alleged in the supporting documentation would, if approved, justify the making of an ESO. [3]
3. The defendant submits that the Court has no jurisdiction, at the interim stage, to refuse to make an IDO and, instead, to make an ISO. The defendant relies on the confinement of the power of the Court to make an ISO to "proceedings for an [ESO]". Because the State of New South Wales has not applied for an ESO, the defendant submits that these are, therefore, not "proceedings for an [ESO]" and the legislature has not provided the Court with the jurisdiction to make an ISO in proceedings where the State of New South Wales has not sought an ESO.
4. In contrast, at a final hearing, notwithstanding that the State of New South Wales may apply only for a CDO, the Court is empowered to make an ESO. [4] No similar provision exists in relation to IDOs.
5. The defendant relies upon a passage in the judgment of the Court of Appeal in Attorney General for New South Wales v Tillman [5] in which the Court said: "[99] Since s16(1)(b) is satisfied if either category of final order would be justified if the matters alleged in the documentation are proved, the Court is not required, at the stage of considering whether the discretionary power to make an interim detention order is engaged, to assess which category of final order is likely to be made at the end of the day. Because the word 'may' in the closing portion of s16(1) imports a true discretion, it is open for the Court to refuse to make an interim detention order even if conditions (a) and (b) are satisfied. But it would not be a proper exercise of that discretion, in our opinion, for the Court to make an interim supervision order instead of interim detention order simply because the probabilities suggested that an extended supervision order was the more likely (final) candidate. That would involve reading words into the subsection that are not there. If (unlike the present case) there was only a claim for a continuing detention order, then the only options available to the Court under s16(1) would be to make an interim detention order or to dismiss the claim for interim relief." [6]
6. Further reliance is placed upon the judgment of Justice N Adams in State of New South Wales v Lynn (Preliminary) [2020] NSWSC 1066 at [19]-[24].
7. There are two aspects that require discussion. First, as can be seen from a comparison of the opening words of s 18A of the Act and the opening words of s 10A of the Act, the legislature has drawn a distinction between, on the one hand, "proceedings on an application for a [CDO]" and "proceedings for an [ESO]".
8. The terms of s 17 of the Act make clear that the Court may, in determining an application for a CDO, make an order for an ESO. As a consequence, it would seem that an application for a CDO, while not "an application for an [ESO]" are "proceedings for an [ESO]". In other words, the legislature has differentiated between proceedings on an application for a particular order and proceedings that may result in a particular order.
9. Notwithstanding the foregoing comparison, the Court is required to take a purposive approach to the construction of the statute and to seek to construe the statute in a manner that achieves harmonious goals. [7] The primary object of the Act is to provide for the extended supervision and continuing detention of high-risk offenders so as to ensure the safety and protection of the community. Another object, but not the primary object, is to encourage such offenders to undertake rehabilitation.
10. As pointed out by the Court of Appeal in Tillman, supra, recited above, the Court has a discretion as to whether it will issue an order but, according to the Court of Appeal, it does not, at the interim stage, have a discretion, on an application for a CDO only, to issue an ISO.
11. The use of the word "may" in s 18A of the Act would ordinarily, and in this case does, give the Court a discretion as to whether it will make an order. There is a similar discretion reposed in the Court in the making of a final order. [8] Unless the Court, as presently constituted, was of the view that the Court of Appeal in Tillman was "plainly wrong", it would be required to follow the dicta recited above.
12. The dicta is not plainly wrong. There may be very good reason why, when the State of New South Wales is seeking only a CDO, that an applicable exercise of discretion of the Court would not be the imposition of an ISO.
13. The consequence of issuing an ISO to a person of whom it can be said the person is an unacceptable risk in the absence of either a CDO or ESO, would be to release the person from prison (assuming the person was still imprisoned) in order for the person to be re-imprisoned, if the application of the State of New South Wales was successful at final hearing.
14. Moreover, the criterion for the existence of an unacceptable risk, in relation to an IDO, is significantly different from the criteria utilised otherwise in the Act. In order for the Court to be satisfied that there is an unacceptable risk, as a consequence of which the Court has the capacity to make an IDO, the Court is required to assess the unacceptability of the risk, assuming the matters alleged are proved, in the absence of either an ESO or a CDO. In other words, if the Court were satisfied that, in the absence of an ESO, the defendant posed an unacceptable risk of committing a serious offence, on an application for only a CDO, the Court would have the capacity to make an IDO but not an ISO.
15. As pointed out by N Adams J in Lynn, supra, the satisfaction of the Court that the person is an unacceptable risk if not governed by an ESO or CDO, is the precondition that allows the Court to make an IDO. It does not determine whether, as a matter of discretion, the Court should make an IDO. Thus, if the Court were satisfied that an ISO or an ESO would be a sufficient order to manage the unacceptable risk, the Court may be in a position that, even though it could order an IDO and could not order an ISO, it would not order an IDO.

Unacceptable Risk

1. The task involved in assessing whether the defendant poses an unacceptable risk has been the subject of significant authority. For the purpose of the preliminary hearing dealing with whether the Court is entitled to issue an IDO governing the defendant, the Court accepts the asserted facts in the application and operates on the assumption that the asserted facts are proved.
2. The Court then determines whether, on that assumed basis, it is satisfied that the defendant poses an unacceptable risk. [9] The matters alleged are those facts sought to be established by the plaintiff, not the conclusion to be drawn from them. [10]
3. Thus, it is for the State of New South Wales to allege certain facts, with no necessity to prove them, and the Court assumes those facts are proved (assuming they are facts that are capable of proof) and then determines whether those facts, assumed to be proved, would lead to a conclusion justifying the making of the appropriate order.
4. Taking into account the objects of the Act, previously recited in these reasons, it is clear that the purpose of the orders made by the Court under the Act is to protect the community from unacceptable risks that may be posed by the defendant. As has been stated on a number of occasions, the assessment of unacceptable risk is an evaluative task which measures the likelihood of an offence being committed, and the effect of that offence. As stated by Fagan J [11] , it measures the risk against a standard, being a measure of the degree of risk established in respect of a particular defendant against the level that the Court considers the community would or should accept.
5. In my view, there is no tension between the requirement that the Court be satisfied "to a high degree of probability" of the existence of an unacceptable risk and the legislative prescription that the Court is not required to determine that the risk of committing a serious offence is more likely than not. The "high degree of probability" refers to the existence of the unacceptable risk posed by a defendant, but, in that assessment, it is unnecessary that the risk of committing a serious offence is more likely than not.
6. Those two propositions exist and are consistent because the assessment of unacceptable risk looks at the likelihood of the commission of a serious offence, not being an insignificant probability, and measures it with the gravity of the effect of the commission of an offence that may be committed. Thus, by example, the risk that a defendant would detonate a nuclear explosive device would be, if the likelihood was not insignificant, an unacceptable risk even though the likelihood of the offence being committed is less than the probability that it would not be committed. This is a result of the effect of the real risk, although improbable, of such a catastrophic offence.
7. While the foregoing extreme example is not a likely example to come before the Court, the extreme nature of the example discloses the nature of the task being performed by the Court. The Court is looking at a matrix of circumstances, one of which is the likelihood of a serious crime being committed and another being the harm that would be caused if the crime were committed.
8. The Court has already set out, chronologically, significant aspects of offending and conduct that go to the issue of risk. It is necessary to set out, briefly, the circumstances of the index offence.
9. The index offence occurred on 4 April 2016. The victim was walking to work, wearing headphones. As the victim crossed a bridge in Liverpool, the defendant said something to the victim, which caused the victim to remove the headphones.
10. The victim asked: "what did you say?" to which the defendant replied: "do you want to have a go? Do you want to have a go?". The victim told the defendant to "fuck off" and informed him that he was going to work. The victim placed his headphones back on his ears and continued walking to work.
11. The defendant attacked the victim from behind with a knife, swung at him five or six times, causing serious injury. The victim realised he had been stabbed. The defendant then turned towards another male and said: "do you want me to punch you too?" and then left the area. The defendant and the victim were unknown to each other prior to this event.
12. I do not recite the facts going to the other offending to which I have referred, but those facts are before the Court.
13. The Court has available to it a Risk Assessment Report, compiled by Dr Parker, who interviewed the defendant on 18 August 2021. Dr Parker expressed the view that the defendant's risk is high.
14. The Risk Assessment Report is dated 24 August 2021. The Report refers to the fact that the defendant had, at that stage, been unable to access programs designed to address his offending behaviour due to the incidents of self-harm and occasional attacks on staff and other inmates.
15. The defendant has been diagnosed with Borderline Personality Disorder and the Report refers to the fact that the defendant had been managed in specialised units for that reason. Those units more effectively respond to the self-harm, but suffer the disadvantage that it is difficult to progress out of the units.
16. In the executive summary forming part of the Report, Dr Parker expresses the view that, if the defendant were subject to an ESO "he would receive intensive supervision and case management", including "electronic monitoring, the obligation to provide weekly schedules of movement, unannounced visits by supervising staff, assistance, finding suitable accommodation, scrutiny of social contacts, employment and leisure activities" and intervention from psychologists. It then proceeds in the following terms: "Given [the defendant's] attitudes and personality disorder it is difficult to know whether he would comply with the conditions of an ESO. His regular self-harm would likely see him cycle in and out of hospital and is likely to preclude him from most supported accommodation options. While he has expressed a desire to participate in an opiate replacement program, he may well resort to illicit drugs. [The defendant] will not be able to undertake the VOTP within his existing sentence. Whilst a Continuing Detention Order (CDO) would give him the opportunity to do so, the most likely scenario is that he would remain unable to access this program due to his self-harm and associated placement. However, if he is still in custody, the court may consider imposing a CDO for its containment benefits."
17. The view expressed in the foregoing executive summary is a direct recitation of a passage in the body of the Report. It is unnecessary to repeat large sections of that Report.
18. Nevertheless, the Report refers to the statement by the defendant that his offending was "something stupid" and described the circumstance that the victim had challenged him as a consequence of which he "just snapped". The defendant described himself as in a "bad headspace".
19. The Risk Assessment Report describes the defendant's behaviour in custody as "atrocious" and referred to "innumerable incidents where he has caused staff to fear for their safety". These incidents were apart from the convictions for assaulting staff and other inmates which, in addition to his regular self-harming behaviour, has led him to being managed in special units.
20. In relation to the defendant's response to community supervision, Dr Parker expresses the following opinion: "[The defendant] has only been subject to community support supervision for three months as adult, and reoffended within days of that supervision ending. Given his behaviour in custody, it is hard to be optimistic about his prospects in the community."
21. The Report restates that which is known to most judges who have dealt with these matters; that it is not scientifically possible to predict accurately whether or not an individual offender will reoffend. The risk assessment process, which is multifaceted, combines the use of actuarial approaches and assessment of dynamic or changeable risk factors that have, in the past, contributed to a pattern of violent behaviour.
22. Risk assessments were performed on the defendant by or on behalf of Dr Parker. As a consequence of the risk assessments and the interview with the defendant, Dr Parker expressed the view earlier described in the executive summary relating to the random nature of the offence; the inability to access programs designed to address his offending behaviour; his regular self-harm; his occasional attacks on staff and other inmates; his diagnosis of Borderline Personality Disorder; and, his management in specialised units and the restrictions associated with that management on progress out of the units.
23. At [84] of the Risk Assessment Report, Dr Parker expressed the view that the defendant ""appears stuck in a cycle of self-harm, with occasional attacks against others. He appears ill-equipped for life in the community, but has not progressed whilst in custody."
24. The defendant was also the subject of a Risk Management Report by Mr Nick Glover, Senior Community Corrections Officer, at the Department of Communities and Justice. That Report is dated 2 September 2021. In the course of the Report, the author referred to those restrictions or conditions that would be in place if the defendant was subject to an ESO and which have been recited earlier in these reasons. In the course of the Risk Management Report, the author made the following comment: "[The defendant] was previously supervised on a parole order for a period of 67 days in 2016. His supervision was marred by his unstable mental health and drug use. He moved from his release address into temporary accommodation within five days of release and used drugs within two weeks of release. His parole order expired on 29 March 2016 and he was rearrested for the index offence on 16 April 2016.
25. A Supplementary Report dated 6 August 2021, being a Pre-Release Report, was compiled and is before the Court. In the course of that Report, the author, Ms Nicole Culbert, Community Corrections Officer, made the following comments: "Whilst [the defendant] continues to engage in self harm related behaviours, as previously outlined, this is unlikely to be resolved in custody. It is important that [the defendant] maintains a meaningful period of parole supervision and given his sentence expiry date, this is becoming a pertinent matter. Nonetheless, due to his complex needs and his current ineligibility for NDIS funding, there are concerns regarding his ability to be effectively managed in the community. … Whilst it is positive that [the defendant's] mental health has stabilised following diagnosis and prescribing of appropriate medications, there are concerns that this stability may decline after his release. He is currently not eligible to be placed under a CTO and therefore there is reliance on his compliance to take his medication. [The defendant] has also not been found eligible for NDIS funding. … Due to the violent nature of [the defendant's] offending, there are risks to the community should his mental health deteriorate, as a result of a failure on his part to comply with the mental health treatment plan."
26. One of the difficulties associated with a CDO and, necessarily, an IDO, is that given the ineligibility for the VOTP as a result of his mental health and drug issues, there is little opportunity for rehabilitation if continuing detention is ordered. Rehabilitation is one of the objects of the Act, but the primary object is to ensure the safety and protection of the community.
27. The Risk Assessment Report of Dr Parker refers to the defendant's possessing a substantial problem relating to his belief that, at least at times, his actions are outside his own control. Dr Parker suggests that this issue means "his personal distress, mental illness and desire for drugs … all act as cues for violence".
28. While this is a possibility, and is not suggested to be certain, Dr Parker does express the view that such feelings are "overwhelming and irresistible" and are "a key element in much of [the defendant's] violence and self-harm."
29. The scores on risk assessment psychological tests revealed that the defendant was placed in the medium to high-risk category which, Corrective Services data reveals, places him in that part of the criminal offending population in which 67% of them reoffended and were returned to Corrective Services within two years. Further, the Violence Risk Appraisal Guide - Revised, an actuarial assessment developed to assess risk of violence for serious offenders, was administered by Dr Parker and the defendant's score was equal to, or higher than, the score of at least 95% of the sample, putting him in the highest category for risk of repeat violent offending. Lastly, in terms of risk assessment, Mr Vanderhaven administered the Violence Risk Scale in September 2020, which categorised the defendant in the high-risk category for violent recidivism.
30. There are other reports before the Court. Dr Gordon Elliott, Forensic Psychiatrist and a Consultant Psychiatrist to Justice Health compiled a Report dated 6 August 2021. That Report helpfully summarises some of the other reports as to the defendant's difficulties and treatment.
31. After reciting the defendant's medical history, drug and alcohol history and personal history, Dr Elliott refers to diagnoses that have been applied to the defendant, including, at one stage, Bipolar Disorder. In his conclusions, Dr Elliott expressed the view that, if the defendant were suffering from Bipolar Disorder, that would be a positive circumstance, because it is more easily treated. However, that is not the view of Dr Elliott.
32. Dr Elliott expressed the view that the defendant has "a severe personality disorder". Such disorders are enduring, and Dr Elliott refers to individuals with more severe borderline personality disorders tending to have more "entrenched and treatment resistant maladaptive personality features".
33. The defendant, according to Dr Elliott, is likely to continue to experience problems with emotional dysregulation, a core feature of the personality disorder. Such dysregulation is, according to the Doctor, typically only minimally responsive to pharmaceutical intervention.
34. As a consequence of the foregoing Psychiatric and Risk Assessment Reports, and given the history of the defendant's offending within a very short time after his release, I consider that the defendant poses a significant risk of committing a serious offence, as that term has been defined in the Act. Moreover, given the nature of the offending and the serious damage posed by the likely offending, the combination of factors results in the defendant posing an unacceptable risk to the safety of the community unless the defendant is regulated by an ESO or a CDO.
35. As a consequence of the foregoing conclusion, the Court, as presently constituted, takes the view that the provisions of s 18A of the Act have been satisfied. I have already noted the procedural issues have been satisfied and, therefore, the Court is armed with the capacity to make an IDO binding on the defendant. This is a result of the Court's conclusion that the matters alleged in the supporting documentation would, if proved, justify the making of either an ESO or a CDO.

Exercise of Discretion

1. The Court has come to the conclusion that the defendant poses an unacceptable risk to the safety of the community if there is not in place either an ESO or a CDO. Because of that conclusion, the Court is required to deal with the discretion that is reposed in the Court.
2. In reaching the conclusion as to the unacceptability of the risk, the Court has taken into account the factors prescribed by s 17 of the Act. In particular, the Court has taken into account the safety of the community and repeats that the safety of the community is the paramount consideration of the Court.
3. At this stage, there are obviously no reports received from persons appointed pursuant to the ancillary orders sought by the State of New South Wales. I have, as the foregoing makes clear, taken into account the other assessments prepared by qualified psychiatrists, psychologists and other persons involved in the management and assessment of the defendant. I have referred to the statistical and other assessments made in that respect. Further, I have referred to the reports prepared by Corrective Services.
4. One of the difficulties associated with a detention order, either interim or continuing, is that the defendant has not had an opportunity to participate in rehabilitation programs, because of his level of self-harm and violence. However, the defendant has been willing to participate in such programs, but has been considered ineligible.
5. The defendant has not been subject to any obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). Nor are there any obligations imposed upon the defendant under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).
6. I accept the submission of the defendant that, if the Court were of the view that an ISO or ESO would, in the current circumstances, be sufficient to manage the unacceptable risk of the defendant in the community, then a CDO or an IDO ought not issue. Assuming, as previously mentioned, that the Court, faced with an application confined to a CDO does not have the capacity to issue an ISO, if an ISO would sufficiently manage the defendant in the community, then no order ought to be made in the exercise of the discretion reposed in the Court.
7. The State of New South Wales advanced an alternate view, to the effect that, if an unacceptable risk in the absence of an ESO or CDO is established, and an ISO is unavailable in the interim, then the Court­­ - faced with the primary object and the paramount consideration - does not take account of the theoretical possibility that an ESO could have been the subject of application. As stated above, I reject this submission.
8. The defendant submits that, if the Court were of the view that an ESO would sufficiently manage the defendant in the community, then the Court should exercise the discretion not to issue an IDO and allow the State of New South Wales to apply, urgently, for an ESO; thereby enabling the Court to issue an ISO.
9. Notwithstanding the support for the proposition advanced by the State of New South Wales, as the defendant put it in his submissions, the discretion of the Court is an "all or nothing" proposition. If the Court were of the view that a detention order was not required to manage the defendant, but a supervision order would suffice, then the Court would refuse to make the IDO, but not make an ISO in its stead.
10. Even though the Court accepts the foregoing, the Court is now dealing with an interim application. Presumably, another judicial officer will deal with the final orders and may take a different view as to the appropriateness of a detention order or supervision order. A further difficulty in the exercise of the discretion is that the Court is required to accept the allegations of fact asserted by the State of New South Wales and assume they are to be proved at the final hearing.
11. One of the allegations of fact, which is the subject of evidence to which the Court has referred, is that the defendant will not comply voluntarily with medication proposals. Further, there are serious concerns and a difficulty in knowing whether the defendant would comply with the conditions of an ESO. His likelihood of self-harm, as earlier stated, is likely to preclude him from most supported accommodation options and, notwithstanding his desire to participate in an opiate replacement program, in those circumstances, it is likely he will resort to illicit drugs. Moreover, if, as is contemplated, his accommodation is with this grandmother, then the defendant's risk is exacerbated.
12. Over and above the foregoing is the circumstance of the short amount of time between his release into the community and his further offending in the past. He has only been subject to community supervision for three months and reoffended within days of that supervision ending.
13. In other words, the allegation of fact, which the Court is required to assume will be proved, and may or may not ultimately be proved at the final hearing, is that his risk of reoffending and the harm that would be caused by his reoffending is incapable of being managed in the community. There is already expert opinion supporting that allegation.
14. In those circumstances, given the paramount consideration for the safety of the community, the Court forms the view that an IDO should issue. The ancillary orders under s 15(4) of the Act will also issue.
15. The Court makes the following orders: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court: 1. appoints two qualified psychiatrists or a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by 11 May 2022; and 2. directs the defendant to attend such examinations. 1. Pursuant to ss 18A and 18C(1)(a) of the Crimes (High Risk Offenders) Act, the defendant is subject to an Interim Detention Order for a period of 28 days from midnight between 14 April 2022 and 15 April 2022, concluding 12 May 2022. 2. Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act, a warrant shall issue for the committal of the defendant to a Correctional Centre for the duration of the Interim Detention Order. 3. I direct that the State of New South Wales provide a short minute of order of the foregoing, including the names of the qualified psychiatrist and/or qualified psychologist appointed pursuant to the foregoing Order within two weeks of the date of this judgment.

Endnotes

1. Crimes (High Risk Offenders) Act 2006 (NSW), s 5C and importing the relevant aspects of s 13B.
2. Crimes (High Risk Offenders) Act, s 18A.
3. Crimes (High Risk Offenders) Act, s 10A.
4. Crimes (High Risk Offenders) Act, s 17(1)(a).
5. Attorney General for New South Wales v Tillman [2007] NSWCA 119.
6. Ibid, at [99] (Mason P, Santow and Tobias JJA).
7. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
8. Crimes (High Risk Offenders) Act, s 17.
9. State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 at [10] (Fullerton J); State of New South Wales v Sancar [2016] NSWSC 67 at [74] (Garling J).
10. State of New South Wales v Elomar (No 2) [2018] NSWSC 1034.
11. State of NSW v Barrie (Second Final) [2019] NSWSC 1161.

Amendments 05 April 2022 - A pseudonym applied. 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: 05 April 2022