State of New South Wales v Heath

Supreme Court of NSW|2021-12-13|Before: Harrison J

Judgment

HIS HONOUR: By its summons filed on 12 November 2021, the State of New South Wales seeks the following interim orders pursuant to the Crimes (High Risk Offenders) Act 2006: 1. An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. appointing two qualified psychiatrists, or two qualified psychologists, or a combination of both, 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 a date to be fixed by the Court; and 2. directing the defendant to attend those examinations. 1. An order pursuant to ss 18A and 18C(1)(a) of the Act that the defendant be subject to an interim detention order commencing on 24 February 2022 ("the interim detention order") for a period of 28 days from that date. 2. An order pursuant to s 20(1) of the Act that a warrant issue for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in paragraph 2 above. 3. In the alternative to paragraphs 2 and 3 above an order: 1. pursuant to ss 10A and 10C(1) of the Act, that the defendant be subject to an interim supervision order commencing on 24 February 2022 ("the interim supervision order") for a period of 28 days from that date; and 2. 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 the Schedule to this Summons.
Mr Heath is currently incarcerated at the Long Bay Hospital, classified as a maximum security inmate. His sentence is due to expire on 24 February 2022.
The State reads the affidavits of Ann-Marie Nader, solicitor, sworn on 9 November 2021 and 17 November 2021 and Rochelle Pateman, a senior psychologist, affirmed on 9 November 2021 and 8 December 2021. None of these deponents was cross-examined. Mr Heath tendered no evidence on this application.
Mr Heath is currently serving a period of imprisonment for an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900. He was sentenced by Noman SC DCJ following a plea of guilty to a term of 4 years imprisonment with a non-parole period of 2 years and 3 months, commencing on 25 February 2018. His earliest date for release on parole was 25 May 2020. Shortly before the expiry of his non-parole period, Mr Heath was sentenced by N Williams DCJ following a plea of guilty in respect of an offence of wounding a law enforcement officer, to imprisonment for 2 years and 3 months commencing on 1 October 2019 with a non-parole period of 1 year expiring on 30 September 2020. Parole was refused on 19 March 2020, 6 May 2020, 10 June 2020 and 16 June 2020.

Personal background

Mr Heath's somewhat difficult and unfortunate life has been helpfully summarised in the State's written submissions. The following matters should be noted.
Mr Heath was aged 17 years at the time of the index offending. His childhood was marred by disadvantage and instability. As an infant, he was exposed to his father's domestic violence and alcohol abuse, which caused the eventual dissolution of his parents' relationship. Following their separation, Mr Heath and his two sisters lived with their mother but ceased contact with their father.
Mr Heath developed aggressive and challenging behaviours of his own, which manifested in his frequent verbal abuse and the physical assault of his sisters. His mother sought the assistance of FACS in 2006 to manage his behaviour. However, that assistance proved unsuccessful and in 2009, Mr Heath was formally taken into the care of the Minister following a period of escalation in his aggressive behaviour towards his mother and sister. At this time, Mr Heath was formally diagnosed with Attention Deficit Disorder and other disruptive disorders including Conduct Disorder, Oppositional Defiant Disorder and Reactive Attachment Disorder.
Mr Heath's placement with foster families and residential care facilities was frequently changed over the years, in response to his verbal abuse and threatening behaviour towards placement carers, property destruction, absconding and substance abuse. Mr Heath returned to live with his mother for short periods following his release on parole for prior offences in 2014 and 2015 but was returned to foster care as a result of his aggressive behaviour in the family home. In consideration of the escalation in Mr Heath's longstanding aggressive behaviours, FACS determined to transfer his case management to the Metropolitan Intensive Support Services (ISS) for additional support. Mr Heath will continue to be case managed by the ISS until he reaches 25 years of age.
Mr Heath eventually refused subsequent placements in refuge accommodation and relocated to live closer to his criminal peers in the Sutherland Shire. He reported that his relationship with his mother is strained and that he maintains limited contact with one of his sisters. His custodial records confirm that he otherwise maintains regular contact with cousins and friends, although they are unable meaningfully to support him with post-release plans.
Mr Heath's schooling was significantly disrupted by intermittent periods of juvenile detention for prior offences, truancy and school suspensions for property damage, verbal abuse towards teachers and assaulting other students. He was eventually referred to specialised education services tailored to school students with emotional or behavioural challenges. However, logistical limitations on his attendance caused him to discontinue schooling at 13 years of age. Mr Heath recommenced high school studies whilst serving a sentence of imprisonment for prior offences in juvenile detention. His high school education was abruptly discontinued part-way through Year 11, when he was transferred to adult custody with CSNSW in May 2017. Mr Heath has not been employed in the community and his employment history is limited to the brief periods of work he undertook during his current sentence.
Throughout his adolescence, Mr Heath regularly binged on alcohol and experimented with illicit substances and non-prescribed medications. He often used violence and threats of violence to obtain alcohol and drugs. He has acknowledged that his alcohol consumption precipitated his aggressive and impulsive behaviour. He has previously attempted unsuccessfully to participate in a residential program to address his substance abuse.
Mr Heath has an extensive criminal history, commencing when he was aged 13 years and continuing into adulthood, including whilst incarcerated for the index offence. The nature of Mr Heath's criminal antecedents is varied, consisting mostly of property, drug and theft related offences and violence offences. Aside from the index offence, Mr Heath's violent offences include assault police officers and other law enforcement officers, robbery in company causing wounding / grievous bodily harm, affray, common assault, aggravated break and enter and commit serious indictable offence - use violence, for which he received sentences of imprisonment, good behaviour bonds and probation and control orders.

Index Offence

The State has also provided the following summary of Mr Heath's index offence. I do not understand this account of events to be in contest.
On the night of 15 July 2016, Mr Heath, then aged 17 years, went to a park with two male friends when they crossed paths with the victim, aged 16 years, in the company of about 20 other young people. Shortly after their arrival at the park, a discussion ensued between one of Mr Heath's friends and the associates of the victim. The victim and his associates observed Mr Heath to have been armed with a knife, measuring approximately 17 to 18 centimetres in length, and to be moving it around.
The victim asked Mr Heath's friend, "what's going on here?", to which he replied that it was none of the victim's business. As the victim was walking away, Mr Heath asked the victim, "what do you want to have a go? Do you want to fight?" The victim told Mr Heath to "chill". The victim observed Mr Heath to be drug affected and aggressive at this stage.
Following this brief exchange, Mr Heath walked towards the victim and stabbed him in the abdomen, causing the victim to fall to the ground. Mr Heath then stomped or kicked the victim's head, as he lay on the ground. Shortly thereafter, Mr Heath and one of his friends ran from the scene.
The victim lost consciousness and required emergency surgery. He suffered a stab wound of 15 to 20 centimetres in length, which extended through the abdominal wall muscles into the abdominal cavity. Part of the victim's duodenum and pancreas were lacerated, the arteries in his right kidney were injured and his right ureter was transected. The victim required five surgeries in total to treat his injuries over a nine-month period.
On 9 July 2018, following a plea of guilty, her Honour Judge Noman SC sentenced Mr Heath in the District Court of NSW for an offence of grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act. Her Honour imposed a term of 4 years imprisonment with a non-parole period of 2 years and 3 months, commencing 25 February 2018. The non-parole period expired on 24 May 2020 and the balance of term will expire on 24 February 2022.
Her Honour found that the index offence fell slightly below the mid-range of objective seriousness. In assessing the objective seriousness, her Honour had regard to the nature and extent of the injury suffered (which her Honour considered to be "substantial but mid-level"), the use of a knife to inflict the injury, the fact that Mr Heath continued to attack the victim once he was on the ground and the unprovoked nature of the attack (although her Honour accepted that it was spontaneous and an unplanned crime). Her Honour also took into account that the offence was committed in the presence of other children.
As to Mr Heath's subjective case, her Honour took into account his young age (19 years) at the time of sentence and the fact that he had an extensive criminal history commencing when he was aged 13 years, consisting of property offences, offences of dishonesty and offences of personal violence. Her Honour also took into account that whilst Mr Heath was incarcerated for prior offences and pending his sentence for the index offence, he was transferred from juvenile detention to adult custody with CSNSW due to assaulting a detention officer in May 2017. Her Honour considered Mr Heath's commission of the index offence whilst he was subject to various conditional release orders for prior offences as a matter of aggravation.
Her Honour had regard to Mr Heath's disadvantaged background, including that he was exposed to his father's domestic violence as a child which ultimately caused the breakdown of his parents' relationship, that he was placed in foster care with FACS in 2006 as a result of his mother's inability to manage his violent and challenging behaviours, that he witnessed violence during some of his foster placements, that he was exposed to antisocial factors at an early age, including that he had allegedly become a victim of childhood sexual abuse and that he received limited education. Her Honour also had regard to Mr Heath's longstanding history of substance abuse, which commenced when he was eight years old.
Her Honour considered the mental health reports tendered at sentence confirming that Mr Heath met the diagnostic criteria for Antisocial Personality Disorder. Her Honour did not regard Mr Heath's mental health issues as materially or otherwise contributing to his index offending, nor was it considered that any aspect of Mr Heath's mental health moderated his moral culpability.
Her Honour did not accept that Mr Heath's belated expressions of remorse were genuine, reasoning that it was inconsistent with previous occasions on which he failed to express remorse and was dismissive of the index offending and the victim. Her Honour concluded that Mr Heath's prospects of rehabilitation and of not reoffending were poor having regard to his propensity to act violently, culminating in further violent offences in custody in December 2016 and May 2017 involving assaults on detention officers. Her Honour accepted the (then available) forecast provided in the mental health reports that Mr Heath will continue on an antisocial trajectory for some years to come. Her Honour recommended that Mr Heath participate in the Violent Offenders Therapeutic Program (VOTP), the EQUIPS programs and any other program for which he is assessed as suitable to minimise his risk of reoffending.
Her Honour found special circumstances for the following reasons: Mr Heath's requirement for support following his eventual release into the community; the sentence constituted his first period of adult custody; the real risk of institutionalisation; and the issue of totality.
During an interview with Juvenile Justice, to facilitate preparation of their pre-sentence report, Mr Heath explained that the majority of his friends at the time of the offence were known to police and had been involved with the criminal justice system. He reported that he felt support from these friends that he did not receive from his family. He admitted to consuming alcohol and using illicit drugs on a daily basis in the lead up to the offence, acknowledging that he becomes increasingly aggressive and impulsive when under their influence. Notwithstanding his recognition of the adverse impacts of his alcohol and drug use, he presented as non-committal to the prospect of engaging in interventions, stating "I'll be right, it's not an issue".

Other offending

Mr Heath has a history of other offending involving violence. It is unnecessary for present purposes to refer to these matters in detail.

Conduct in custody

Mr Heath has been in custody since 16 July 2016 in relation to both the index offence and other matters. He is currently classified as an A2 maximum security inmate. He has had no other classification. Mr Heath has been managed as an Extreme High Security inmate since 28 May 2020. In June 2020, he was temporarily transferred to the High Risk Management Correctional Centre in response to his involvement in physical fights with other inmates and possession of gaol made weapons. He was subsequently returned to the Mid North Coast Correctional Centre to address his poor custodial behaviour, with which it appears he continues to struggle. Mr Heath has an extensive record of institutional misconduct charges.

Expert opinion

Rochelle Pateman is a registered psychologist employed as such by Corrective Services NSW. Ms Pateman has expressed the following opinion concerning Mr Heath's anticipated treatment needs: "Opinion on preferred method of program delivery 34. In my opinion, the preferred treatment pathway would be for the defendant to complete the programs that are focused on addressing his violent behaviours in custody, namely the EQUIPS Aggression and RUSH programs. Presently, the defendant has the requisite support staff at LBH to ensure his continued engagement in the rehabilitative pathway and the support of PBDS psychologists to provide intermittent, risk management therapy when needed during periods of possible behavioural destabilisation. Whilst I do not consider it a necessary pre-condition to release for the defendant to complete EQUIPS Addiction in custody it may nevertheless be a desirable course, at least to ensure the defendant's continued engagement in necessary therapeutic interventions to address substance abuse as a risk factor for reoffending. This is particularly important given the defendant's history of substance abuse and its interplay with his previous offending in the community. If the defendant is unable to complete EQUIPS Addiction in custody, then the defendant may be able to participate in EQUIPS Addiction in a group setting in the community, provided he has access to CSNSW services as an offender supervised on an extended supervision order, and subject to COVID-19 related restrictions imposed by CSNSW on the delivery of community-based programs. 35. The involvement of PBDS to progress the defendant through his custodial rehabilitative pathway will provide him with the requisite consistency and stability he needs in the custodial environment, to reduce the potential for interpersonal challenges between the defendant and support staff and to ensure his meaningful engagement in the custodial program pathway. Close oversight of the defendant's progress in custody will allow for PBDS to provide immediate risk management interventions by way of psychology therapy sessions when needed. These sessions will focus on addressing the defendant's acute behavioural difficulties and to provide him with the support needed to continue ongoing engagement in his custodial program pathway. It will also enable PBDS to assist staff at LBH to provide effective management of the defendant to maintain behavioural stability. In this regard, PBDS has also arranged to convene meetings and case review conferences as required with staff at LBH, to monitor his progress and to formulate any necessary contingency plans to address fluctuating behaviours exhibited by the defendant. 36. As noted at paragraphs 9 to 10, the defendant has shown long-standing behavioural instability and interpersonal aggression throughout his incarceration in CSNSW custody, exemplified by commission of numerous institutional misconduct offences for assault, fight or other physical combat and intimidation. Concerningly, the defendant has also been charged externally by police in connection with his violent and aggressive custodial behaviours. The defendant's poor custodial behaviour has prompted his continued segregation placements for majority of his incarceration in CSNSW custody, in the interests of the safety of inmates and staff at the correctional centres where he has been housed. The unfortunate by-product of continued segregation is that the defendant has had little to no interactions with his peers, to be able to demonstrate appropriate interactions within the main prison population. In these circumstances, I consider it imperative that the defendant complete EQUIPS Aggression and RUSH in custody. Such programs will provide the defendant with the necessary foundational skill set to manage his propensity for violence before his eventual release into the community. It is hoped that throughout his completion of such programs, the defendant will simultaneously be able to show staff and his peers at LBH that he is capable of applying his program learnings to maintain behavioural stability in the highly regulated custodial environment, and that such therapeutic programs will equip him with the necessary foundational skills to lead a law-abiding life in the community. 37. The defendant's participation in EQUIPS Foundation through individualised delivery, by way of one-to-one sessions with a SAPO has reflected positively in his improved custodial behaviour. Since the defendant's completion of EQUIPS Foundation, his commission of institutional misconduct offences has significantly reduced to three offences, with only one involving instances of interpersonal aggression, namely one intimidation charge incurred on 29 October 2021. This shift in custodial behaviour is in stark contrast to his behaviour pre-engagement in EQUIPS Foundation, for the period January to June 2021 in which the defendant committed 10 institutional misconduct offences, six of which involved instances of aggression and intimidation. Through continued engagement in a tailored and multidisciplinary intervention, the defendant will benefit from a more holistic therapeutic environment where he will have the opportunity to build positive relationships with staff, observe pro-social modelling of his support staff at LBH, engage in problem-solving and develop an appropriate assertive communication style, without seeking recourse to chronic and learned behaviours precipitated by aggression and violence to fulfil his objectives." (Emphases added.)

Risk Assessment Report

Mr Heath was interviewed over a period of three days for the preparation of the Risk Assessment Report dated 31 August 2021. The State submitted that the actuarial instruments used in the Risk Assessment Report place Mr Heath at a high risk of violent recidivism.

Potential protective factors

The State quite properly drew attention to the fact that Mr Heath presents with stable mental health and a motivation to abstain from drug and alcohol use in the community. He adheres to his medicinal regime. He will be assisted by the ISS until he turns 25 with support via referrals and assistance with household items. Mr Heath anticipates ongoing contact with his former football coach who he holds in high regard, as well as with members of his football club. He is also reportedly keen to obtain and secure employment.

Consideration

In my assessment, Mr Heath is on the threshold of release into the community with the kind of assistance that would be provided to him under the terms of an Extended Supervision Order. In describing Mr Heath's current prospects in that way, I do not wish to foreclose the outcome of any later exercise of discretion in these proceedings by someone else. As I have already noted, Mr Heath concedes, by his counsel, that the material tendered would, if proved, justify the making of an Extended Supervision Order as envisaged by the Act. That submission was made in the context of Mr Heath's adamant opposition to his continued detention either on an interim or extended basis. I understand Mr Heath's unambiguous response to the current application to be that the relevant indicators on balance support a confident prediction that he will not return to commit violent offences in the community when he is ultimately released.
In this last respect I have taken account of Dr Hughes' written submission as follows: "13. The defendant is at a critical juncture in his life. He has yet to spend any time in the community as an adult. There is a risk of institutionalisation which ought to be avoided. An ISO, given its limited duration, provides the ideal opportunity for Mr Heath to live in the community, with the benefit of supervision and support, which can achieve both the objects of the Act, namely the protection of the community and the promotion of Mr Heath's rehabilitation."
Dr Hughes' submissions also make the realistic concession that Mr Heath's criminal history, actuarial risk assessments and previous poor compliance with supervision bear on the appropriate regime, but support the making of an Interim Supervision Order rather than an Interim Detention Order. The matters that he emphasised were as follows: 1. Mr Heath's participation and progress in recent times as a result of his participation in the EQUIPS Foundation program, which demonstrates a significant change in attitude, reflected in a reduction in violent behaviour since April 2020; 2. The Risk Management Report sets out the intensive nature of community-based supervision proposed and does not identify any operational constraints that would prevent appropriate supervision; 3. There have been barriers to the delivery of appropriate programs to address Mr Heath's criminogenic needs in custody, which I take to be a submission that Mr Heath's attempts to comply with and complete all courses have been frustrated through no fault of his own; 4. The relatively short duration of the Interim Supervision Order; and 5. Mr Heath's young age, which would ordinarily be deserving of greater emphasis on rehabilitation.
A Case Note Report dated as long ago as 6 May 2020 prepared by Louise Tunks contained the following entry: "He struggles to accept when a request he perceives as reasonable is denied or delayed perceiving this as punishment or personal slight and this often precipitates incidents of violence."
It is evident from the material upon which the State relies in this application that Mr Heath has progressed significantly since then. I mention this because I confidently anticipate that Mr Heath will not respond in this way to the orders I propose to make, which he might reasonably perceive to be the denial or delay of a request to be released, albeit subject to supervision, into the community at the expiry of his head sentence. In coming to the view I have formed, I wish to make it clear that I am not unmindful of the awful reality that any time spent in custody which an inmate might be required to endure over and beyond the head sentence in the way that the Act authorises, is not simply to be counted as "only a matter of a few weeks" or such other vernacular description that on its face might appear to minimise or depreciate the full significance of any imprisonment.
It is apparent that Mr Heath's current custody will expire before these proceedings are finally determined. Mr Heath has been in continuous custody since the age of 17. I accept that he has therefore not spent time in the community as an adult. It is unrealistic in such circumstances to expect that he will have developed clear plans for his release.
A significant point of difference between the parties is whether Mr Heath ought to be required to complete the EQUIPS Aggression and RUSH programs in custody or in the community. Mr Heath contends that he should be permitted to do so in the community. I take that submission to be based upon Mr Heath's determination to do so. In contrast, the State contends that there are practical obstacles to the timely completion of these programs beyond the custodial setting, principally as the result of the current disruptions resulting from the pandemic. Implicit in the State's submission, although not articulated in terms, is that the assumed completion of these programs in custody will not delay Mr Heath's release for "more than a few weeks", or more probably until some time in April next year. This submission is reflected in the fact that the State seeks an Interim Detention Order that will necessarily expire on 24 March next year unless renewed.
Section 18A of the Act provides as follows: 18A Interim detention order The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined; and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.
The test under s 18A as to whether the supporting documentation, "if proved", would justify the making of an extended supervision order or a continuing detention order is "similar to the prima facie test applied by magistrates in committal proceedings": State of New South Wales v Thomas [2011] NSWSC 118 at [11]. I am not required to weigh the documentation or predict the ultimate result. The test is not a stringent one.
As is well known, s 9(2) of the Act provides that "[i]n determining whether to make an extended supervision order, the safety of the community must be the paramount consideration". That provision also informs the present inquiry.
Although not all of the criteria to which s 9(3) of the Act refers have present application, I have had regard to those matters that appear to be referred to in the material tendered by the Crown. In particular, I have considered the Risk Assessment Report, to some of the terms of which I have already referred. Without limiting the generality of that remark, I accept for present purposes Ms Pateman's opinion that it is imperative, or at the very least desirable, that Mr Heath complete the EQUIPS Aggression and RUSH programs in custody.
In my opinion, Mr Heath will also be better placed to complete the outstanding EQUIPS Aggression and RUSH programs while still in custody. The structured setting, with an obvious incentive to complete them, will together be likely to ensure Mr Heath's success in this regard. I consider that Mr Heath's release into the community is closely associated with his completion of these programs and that the safety of the community will be correspondingly enhanced when he has done so. I am not satisfied that the safety of the community can be similarly assured before that.

Conclusion and orders

It appears to me, and I am satisfied, that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. In these circumstances, I make the following orders: 1. Order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006: 1. appointing two qualified psychiatrists, or two qualified psychologists, or a combination of both, 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 10 March 2022; and 2. directing the defendant to attend those examinations. 1. Order pursuant to ss 18A and 18C(1)(a) of the Act that the defendant be subject to an interim detention order commencing on 24 February 2022 for a period of 28 days from that date. 2. Order pursuant to s 20(1) of the Act that a warrant issue for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in Order 2 above.

Amendments 31 March 2022 - Party name amended 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: 31 March 2022

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