State of New South Wales v Heath

Supreme Court of NSW|2022-03-14|Before: Dhanji J

Judgment

HIS HONOUR: By its summons filed on 12 November 2021, the State of New South Wales ("the plaintiff") sought the following orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. An order pursuant to ss 5C and 17(1)(b) of the Act that Anthony Heath ("the defendant") be the subject of a continuing detention order for a period of 6 months. 2. An order pursuant to s 20(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the continuing detention order. 3. An order: 1. Pursuant to ss 5B, 9(1)(a) and 25B of the Act that the defendant be subject to an extended supervision order ("ESO") commencing on the expiration of the continuing detention order and expiring 3 years after its commencement; and 2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in the Schedule to the Summons. 1. In the alternative to orders (1)-(3), an order: 1. Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an ESO commencing on 24 February 2022 for a period of 3 years from that date; and 2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in the Schedule to the Summons.
As matters transpired, at the hearing before me on 14 March 2022, only order (4), previously sought in the alternative, was pressed.
Accordingly, the issues for my determination are whether an ESO should be made, and if so, the term of that order and the conditions to be imposed.
For the reasons that follow, I am of the view an order should be made. However, I am not minded to impose all of the conditions for which the plaintiff contended.

Legislative framework

The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3].
Regard must be had to the objects in s 3 of the Act. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision of "high risk violent offenders": s 3(1). Section 3(2) provides that another object of the Act is to encourage such offenders "to undertake rehabilitation".
Section 5B provides the test for the making of an order and is set out in full, with its heading: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
There exists a discretion as to whether to make an order, even if each of s 5B(a)-(d) are satisfied (given the use of the word "may" as opposed to "must").
There is no issue the defendant satisfies s 5B(a). That is, he is an "offender" (as defined in s 4A) and has served a sentence of imprisonment, by way of actual custody, for a "serious offence" (as defined in ss 4 and 5A). The "index offence" (the term used by the parties to describe the offence triggering s 5B(a)) committed by the defendant falls under the definition of a "serious offence" by virtue of it being a "serious violence offence" (s 4). It is a "serious violence offence" as defined by s 5A as it is a serious indictable offence (within s 5A(3)(a)) constituted by engaging in conduct causing grievous bodily harm to another person, with intention or recklessness as to causing that harm: s 5A(1)(a).
The defendant is a "supervised offender" within the meaning of s 5I (as required by s 5B(b)) and an application for an order has been made in accordance with s 5I (as required by s 5B(c)). I did not understand either party to raise any issue with respect to ss 5B(a), (b) or (c).
While no submissions were made with respect to the making of an ESO it remains for me to be satisfied an order should be made. Given that ss 5B(a), (b), and (c) are satisfied, the question for resolution is the test in s 5B(d): that is, whether I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. Given the approach of the parties I can be relatively brief with respect to this issue.
In determining whether or not an ESO ought to be made, regard must be had to s 9 of the Act.
Section 9(1) provides I may determine the application either by making an order or by dismissing the application. Section 9(2) provides that in determining whether or not to make the order the paramount consideration must be the safety of the community. A non-exhaustive list of matters I must consider are to be found in s 9(3). To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the material tendered by the plaintiff.

Factual Background

The factual background was set out in State of New South Wales v Heath (a pseudonym) at [7]-[26] as follows: "Personal background … 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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 … 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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"."

Conduct in custody

The defendant entered custody on 16 July 2016 in relation to the index offence. Unfortunately, the turbulence that marked his formative years has not abated. Since entering custody, he has been classified as an A2 maximum security inmate. He has been managed as an Extreme High Security inmate since 28 May 2020. Notably, as at 9 November 2021, he had committed a total of 48 institutional misconduct offences, including seven offences of assault, six offences of fight or other physical combat and four offences of intimidation.
In additional to the institutional misconduct matters, the defendant has been convicted of further criminal offences committed in custody. The most serious of these is an offence of wounding a law enforcement officer, reckless as to causing actual bodily harm. This was committed on 18 February 2019 and was summarised in the plaintiff's submissions as follows: "Corrective services officers attempted to escort [the defendant] to another cell after he set fire to his mattress and bedding. Notwithstanding their efforts, [the defendant] successfully resisted their attempts to escort him to another cell, necessitating the attendance of four specially trained officers of the Immediate Action Team. The victim and three other members of the team were wearing stab proof vests, helmets, gas masks, gloves and other protective clothing, when they attended the defendant's cell. The team leader gave [the defendant] multiple directions exit his cell, to which [the defendant] repeatedly refused. The defendant wore a plastic bag over his head to guard against the effects of any capsicum spray or tear gas which may be deployed in his cell, whilst he bounced around his cell in a fighting stance, fists raised. After their attempts to negotiate with the defendant had failed, the team deployed tear gas into Mr Fraser's cell, which had little to no effect on him. The team resolved to take the additional measure of performing a 'cell extraction'; the victim entered the cell first, whilst he carried a shield, followed by the other three members of the team. A gas grenade was deployed into the rear of the defendant's cell in an attempt to have the defendant move to the front of his cell. As the victim moved closer towards the defendant, he observed the defendant reach behind his back and retrieve a jail made shiv. The defendant ran towards the victim, jumped up with the shiv in his right hand and brought the shiv down over the top of the victim's protective shield. The victim raised his left hand to shield himself from the shiv, which pierced through his protective glove, causing a 1.5 centimetre long wound the back of his hand. Using the shiv, the defendant continued to stab the victim on his upper back and his left shoulder, leaving the victim with minor scratches. The defendant continued to strike out with the shiv, nicking the gas mask of another member of the team. He then spat at the team as they tried to gain control of him, prompting the victim to cover the defendant's mouth with his hand, which led the defendant to bite the victim's middle finger. Shortly thereafter, the management team successfully apprehended defendant and escorted him to another cell."
A sentence of 2 years and 3 months with a non-parole period of 12 months was imposed. The sentence was ordered to commence on 1 October 2019. This extended the defendant's non-parole period from 24 May 2020 to 30 September 2020. There was no effect on the existing head sentence.
A less serious offence committed on 12 May 2021 involved him damaging property, including a wooden bench and Perspex window, and tearing off aluminium architraves from the wall. He was convicted of an offence of destroying or damaging property and placed on a 15-month community correction order which was ordered to commence on 1 September 2021. That order is not due to expire until 30 November 2022.
As a result of his extensive record of institutional misconduct, as at 9 November 2021, he had spent a total of 2 years, 10 months in segregation placements, between intermittent periods in which he was released into the main prison population. Recently on 22 February 2022, the defendant was again placed on a 14-day segregation order as a result of him climbing onto the roof at Long Bay Hospital and destroying property. He was, as a result of this event, transferred to the Goulburn High Risk Management Correctional Centre.

Matters to be taken into account

In determining whether to make an ESO, I am required to have regard to the matters set out in s 9(3), in addition to any other matters I consider relevant. Those matters are as follows.

The reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s 9(3)(b)

As noted above, reports were obtained from Dr Furst and Dr Smith. Both Dr Furst and Dr Smith agreed that the defendant poses a risk of committing a further serious offence.
Dr Furst found the defendant's primary risk factors include his antisocial personality disorder, his propensity towards criminal offending, violence and his alcohol and substance use disorder. Dr Furst expressed the view that this risk could be modulated to some extent by the provision of stable accommodation, vocational or work experience, improved social and community supports, and an assertive and comprehensive regime of supervision and monitoring in the community, such as through an ESO. He also recommended that the defendant be placed under the care of specialist drug and alcohol treatment services to treat his substance use disorder. Dr Furst was unable to offer any confident prediction about his capacity to mingle with other people and adjust to life in the wider community as he has been in custody throughout his adolescence and early 20s, a considerable part of which he has spent in segregation.
Dr Furst considered all of the conditions proposed by the plaintiff, and a period of 3 years of supervision under an ESO as appropriate and proportionate in the circumstances.
Dr Smith found that the defendant presents a high risk of re-offending. He formed the view that the defendant suffers from complex post-traumatic stress disorder, antisocial personality disorder and substance use disorder. He thought cognitive impairment was "likely", although he noted that his previous IQ scores have fallen within normal range (and, I interpolate here, this opinion does not appear to be shared by other report writers). Dr Smith also observed the defendant to have difficulties in impulse control, understanding complex issues and maintaining behavioural change for a prolonged period of time.
Dr Smith agreed with Dr Furst that management under an ESO would assist in reducing the likelihood of committing a serious offence. He opined that regular monitoring will enable factors associated with offending, such as drug and alcohol use, issues with social contacts and accommodation, to be closely monitored. However, he noted that ongoing restrictions, such as through an ESO, are likely to entrench his negative feelings towards the criminal justice system as the defendant views restrictions to his freedom as drivers of his aggression. He was also of the view that placement under an ESO does not adequately address some of the clinical needs of the defendant that relate to his risk of offending, such as his drug and alcohol abuse and the uncertainty of work, education, or recreational activities he can participate in after his release from custody. Ultimately, Dr Smith expressed the view that, should a detailed plan that manages these needs be established, placement under an ESO for three years appears reasonable as an alternative to a continuing detention order. Dr Smith expressed reservations as to the capacity of the current plan to manage the defendant safely.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner: s 9(3)(c)

I have had regard to the risk assessment report prepared by Holly Cieplucha, senior psychologist of the Serious Offenders Assessment Unit, on 31 August 2021. The actuarial instruments used in the risk assessment report placed the defendant at a high risk of violent recidivism, demonstrating that his risk has increased since being refused parole in June 2021.
I have also had regard to a psychological risk assessment report of 10 March 2021 prepared by Leanne Thomas and endorsed by Jillian Cawood and to the reports of Rochelle Pateman of 9 November 2021, 8 December 2021 and 23 February 2022.

The results of any statistical or other assessment: s 9(3)(d)

This matter has been considered in the context of the expert reports.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

I have had regard to the affidavit of Kelli Grabham affirmed 11 March 2022. As noted above, Ms Grabham is the High Risk Offender Applications and Operational Governance Officer and On-Call Manager in the Extended Supervision Order Team. Her affidavit explains the operation of the ESO team and the manner in which the proposed ESO would be administered, including the utilisation of the various conditions sought.
I have also had regard to the risk management report of Jason Saad, Community Corrections Officer, dated 28 September 2021. In relation to the proposed risk management plan, the report stated that the defendant would have weekly contact with his Departmental Supervising Officer ("DSO") and receive unannounced home visits on a random basis. His compliance would be monitored through both covert and face-to-face surveillance. The recommended conditions included electronic monitoring to ensure adherence to his schedule of movements. Conditions in relation to use of alcohol and other substances, association with others, medical intervention and prohibition of weapons were recommended in light of the defendant's criminal history and criminogenic risks. A search and seizure condition and conditions relating to access to the Internet and other electronic communications were proposed to assist in the enforcement of other conditions.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs: s 9(3)(e)

The defendant was assessed as eligible to participate in the VOTP, however, due to his non-association status he was unable to enter the program. I have had regard to his participation in the EQUIPS Foundations program and the Real Understanding of Self-Help program.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

As noted above, the defendant has been allocated accommodation in the COSP. In the affidavit of Kelli Grabham affirmed 11 March 2022, she indicates that the COSP provides reintegration services with a view to helping residents transition into a stable lawful life in the community. This will hopefully provide him with support and structure in adjusting to life outside of custody and reduce his risk of re-offending in the long-term.
In addition, the plaintiff notes that an ESO will provide the defendant with structure, help build a support network and will allow for the monitoring of his clinical and treatment needs.

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(3)(e2)

I have had regard to the defendant's record of institutional misconduct and offending in considering the likelihood of his non-compliance with the obligations of an ESO.

The level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order: s 9(3)(f)

The defendant was subject to a number of Probation Orders managed under Juvenile Justice while he was in juvenile detention. His response to supervision varied, was underpinned by a refusal to engage in respective pathways and demonstrated a negative attitude. He has not been subject to supervision by Community Corrections. He has, however, more recently exhibited a greater willingness to engage in rehabilitative programs.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

I have had regard to his record of offending both in the community and in custody as a juvenile and as an adult. The more significant offending has been detailed above.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1)

The views of the sentencing court for the index offence are referred to above at [20].

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

I have had regard to the other materials tendered on this application including the extensive materials contained in Exhibit AN-1 to the affidavit of Ann-Marie Nader sworn on 9 November 2021.

Determination of primary issue: whether to make the order

In determining the statutory test, I have had regard to the safety of the community as the paramount consideration pursuant to s 9(2) of the Act and make my determination having had regard to the mandatory, (but non-exhaustive matters) listed under s 9(3) of the Act and discussed above.
The meaning of "an unacceptable risk" in s 5B(d) and the principles which are to be applied were discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P), and subsequently applied by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [23]-[24]: "23 As to the meaning of the phrase 'an unacceptable risk', the case law establishes the following: 1. What the court must find to be unacceptable is the 'risk' of the offender 'committing a serious [sex] offence if he or she is not kept under supervision'. 2. The word "unacceptable" - which means, relevantly, 'so far from a required standard, norm, expectation etc as not to be allowed' - is one that 'requires context in which, or parameters against which, the unacceptable risk can be measured'. 3. While the HRO Act does not specify 'the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made', this 'must be so' because '[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made'. 4. The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community. 5. The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk. Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO. 24 The 'unacceptable risk' inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate." (citations omitted)
At the outset it must be acknowledged that the defendant has had a tumultuous upbringing, marked by exposure to domestic violence and alcohol abuse as an infant, instability of residence and a lack of meaningful supports. He has abused alcohol and illicit substances since a young age and demonstrated aggressive behaviours, which led him to be placed in foster care with family and community services at the age of 7. This turbulent childhood has culminated in a criminal record characterised by violence and interpersonal aggression. As noted above, both Dr Smith and Dr Furst have diagnosed the defendant as suffering from antisocial personality disorder and alcohol and substance use disorder. It is largely based on these factors that both experts have assessed the defendant's risk of violent re-offending as high.
The defendant has been in custody since he was 17 years of age. He is now 23. He has not spent any time in the community as an adult. He has at all times during this current custody, been classified as a maximum security inmate. As noted above, he has also spent considerable periods of this time in segregation due to supposed incidents of poor custodial behaviour. As a result, he has not had a prolonged opportunity to mix with the mainstream prison population or to develop pro-social relationships, whether in custody or in the community. The unfortunate consequence of his custodial record is that the defendant remains untested in the community. It is undeniable that the defendant requires a comprehensive regime of supervision and support in the community, not only to protect the community by addressing his risk of re-offending, but, relatedly, in order to assist in his reintegration.
I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. No submission was made that, should I reach this state of mind, there are matters that would lead me to exercise my discretion not to make an order.
For the reasons above, I am of the view that an order should be made. I turn now to the determination of the conditions and the duration of the order.

Determination of secondary issue

Section 11(1) of the Act provides that an ESO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". An inclusive list of directions which may be given is then set out at s 11(1)(a) to (n).
Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.
The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act.
Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44]; citations omitted): "Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act; (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence; (vi) conditions must not be unjustifiably onerous or punitive, 'nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision'; (vii) conditions 'must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice'; (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible." (citations omitted)
The matters referred to by Hoeben CJ at CL are to be seen in the context of s 3 of the Act. Section 3, after stating the primary objective of the Act in s 3(1) to be to provide for extended supervision and detention of certain persons "to ensure the safety and protection of the community", provides in s 3(2) that another object of the Act is to encourage persons such as the defendant to undertake rehabilitation. That object is not exclusive of the primary object in s 3(1). As has been said many times, the protection of the community is enhanced by the successful rehabilitation of offenders. That is particularly so here where the defendant is still only 23. Thus, in the circumstances of this case, while there is a substantial contest between the parties, the ultimate objective is essentially the same.
The plaintiff seeks stringent conditions. These are argued to be protective of the community. If such conditions are successful in protecting the community, through prevention of serious offences, it will be reflective of significant progress in the defendant's rehabilitation.
The defendant seeks fewer restrictions. It is understandable that he would want greater liberty. But it is also argued on his behalf, that the level of restrictions sought by the plaintiff are likely to be counter-productive to his rehabilitation (and therefore detrimental to community protection). It was submitted that, having regard to his history, imposition of a large number of conditions in a highly restrictive regime would likely result in breaches, which could, in turn, return him to custody, undoing such progress he might have made to that point. More directly, with respect to the protection of the community, it was further submitted that an intrusive regime has the potential to foster resentment which in turn has the potential to increase the likelihood of violence, rather than to reduce it.
The imposition of appropriate conditions is an issue, I confess, I have not found easy to resolve. As has been set out above, the defendant's background can only be described as tragic. Such a background involving neglect, abuse, and violence from an early age led, in turn, to an exposure to criminality and illicit substances. The defendant entered the Juvenile Justice System in his early teenage years. He was denied the experience of a stable and nurturing environment. Prior to entering custody in relation to the index offence he was living in a share house provided through family and community services. He was, at the time the offence occurred, abusing, to a significant extent, alcohol and other drugs.
The index offence resulted in his most recent entry into custody at 17 and he is now 23. As discussed above, that experience of custody has not been straightforward. The significance of this for present purposes is that the defendant has had almost no opportunity to develop any real life skills. Further, on his return to the community he will be, largely, on his own having had no meaningful contact with family for some years, and no other close pro-social supports.
In some cases, the imposition of stringent conditions may, having regard to an offender's progress, be a retrograde step. Such conditions may be discouraging and resultingly, impede rehabilitation. This was the view I took in State of New South Wales v Devaney (Final) [2022] NSWSC 60, in the particular circumstances of that case, in rejecting some of the more onerous conditions suggested by the plaintiff to be necessary. The present case is very different. The defendant's circumstances are such that, at the preliminary hearing, the relatively extreme step of imposing an interim detention order was appropriate. Until very shortly before the final hearing, the primary contest was whether a continuing detention order should be made. The defendant's release on an ESO, whatever the conditions, is a significant step down from his former custody. This is particularly so having regard to the maximum security nature of that custody, and the extensive periods spent in segregation. While I acknowledge the potential for restrictions to provide a source of conflict, a more liberal regime, without the capacity for close monitoring, involves a significant level of ambition in circumstances where all the expert evidence suggests that the defendant is only at the start of what is hoped will be the road to a more fulfilling life.
Further, while I accept that if the defendant is to commit a serious offence it is very likely to be an impulsive act, that does not mean that conditions cannot be imposed in order to minimise that risk. The likelihood of such an impulsive act will be reduced if conditions are imposed which will assist the defendant in maintaining his mental well-being, abstinence from the abuse of alcohol and illicit drugs, positive associations and stable accommodation. While the submissions put on behalf of the defendant are not without force, ultimately there is a dearth of evidence to support the contention that the defendant can succeed without a very high level of support. The reality is that, at least in the early stages, the level of support required will necessarily come from a high degree of structure. That structure in turn, is unlikely to be effective, unless it is capable of being effectively monitored.
I accept that the more conditions imposed, and the more restrictive the regime generally, the greater the prospect of a breach of the orders. The defendant highlighted the potential for such breaches to be of a trivial nature. The relative seriousness of different offending against s 12 of the Act was recently discussed by the Court of Criminal Appeal in Monteiro v R [2022] NSWCCA 37, per Payne JA, Rothman and Harrison JJ (see at [36]-[40]). Despite the broad range of potential offending, the defendant pointed to the statistics for sentences imposed in the Local Court for breaching an ESO, which indicate that 93.4% of such matters result in full-time custody. A return to custody in relation to such a breach will obviously be a backward step.
The very high rate of imprisonment for breaches of ESOs is, at first blush, alarming. On its face, this appears to provide strong support for the defendant's submission that a rigid regime could be counterproductive. The difficulty with the defendant's submission is that, as is inevitably the case when looking at statistics, nothing is known as to the nature of the offence. It is possible that the high rate of imprisonment is a result of criminal action only being taken in the most serious of cases. Having regard to the potential range of the seriousness of offences for breaching orders, it can only be hoped that that is the case.
The plaintiff in its submissions tended to stress the importance of the relationship with the DSO and the potential for that officer to relax the stringency of the conditions, and to exercise discretion in determining whether to take action in relation to the breach of orders, and if so, what action to take. I am hesitant to invest overly wide powers in an officer acting on behalf of the State and to rely on the individual acting in that role from time-to-time to exercise appropriate restraint. However, in the circumstances of this case the reality is that what the Court can achieve in the form of orders is limited. As a practical matter, the defendant's success is likely to be dependent on the establishment of a positive rapport with his DSO who will have the delicate job of balancing the defendant's desire for greater liberty with the need to maintain a sufficient level of control to maximise his prospects of success. Absent the necessary goodwill involved in this exercise, the defendant's prospects of success will be, at the least, very substantially reduced.
Ultimately, the determination of appropriate conditions involves a balancing exercise conducted for the purposes of diminishing the risk of a further serious offence to an acceptable level without unnecessarily intruding on the defendant's liberty and privacy: see Lynn at [129]-[130]. That balance in this matter favours restrictive conditions, in a general nature, similar to those sought by the plaintiff.
With respect to the terms of particular conditions, the defendant favoured an approach which minimises the number of conditions through the avoidance of duplication, and which simplifies the language of those conditions. To the extent that this can be achieved without impacting on the effect of the conditions, I agree with the approach. It is also true that the Schedule in the present matter appears to apply something in the nature of standard form conditions to the particular case. However, to take as an example the first proposed condition, the defendant submitted that rather than "defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO", the condition should read "if your departmental supervising officer (DSO) tells you to do something reasonable, you need to do it". While the defendant's form of words has an attractive simplicity, the requirement of reasonableness is not attached to any concept referred to in the condition. The condition proposed in the Schedule defines the relationship as one of supervision and guidance, which gives context to what may or may not be a reasonable direction. Accordingly, I have preferred the plaintiff's proposed conditions on some occasions.
I turn now to a consideration of each of the particular conditions.

Conditions 1 to 3 - monitoring and reporting

Subject to what follows, the conditions sought are appropriate. They are a necessary foundation for the defendant's supervision. With respect to condition 3, I would delete the words "or any other person supervising him". As condition 1 makes plain, the supervision of the offender is to be done by a DSO.

Conditions 4 to 7 - electronic monitoring; and schedule of movements

I regard these conditions as appropriate. I accept they are potentially onerous. As discussed above, it is hoped that as things progress these conditions are relaxed.

Conditions 8 to 31 - accommodation; place and travel restrictions; employment, finance and education; drugs and alcohol; non-association; and weapons

These conditions are largely appropriate. Some will, it is hoped, facilitate the defendant's progress, or in the case of the weapons conditions, directly reduce risk. Others will facilitate monitoring of the defendant's progress, integration and well-being, while not being inappropriately onerous.
The defendant opposed the imposition of a curfew as provided for by condition 9. I accept that a curfew could be accommodated within the schedule of movements. However, in my view inclusion of a curfew within the rules dealing with accommodation provides clarity. Imposing a curfew as part of the schedule of movements may make it appear that the DSO is taking a more restrictive view than necessary. Imposing the condition as part of the conditions concerning accommodation makes clear that it is the Court which has taken the view that it may be appropriate to restrict the defendant's movements between 9 pm and 6 am. I would not impose condition 10, the requirement to comply with the rules or bylaws of any approved accommodation. I do not know what those rules will be. It is likely that there are particular rules the defendant will need to abide by in order to maintain his accommodation. A more appropriate condition is that suggested by the defendant which is, "the defendant is not to do anything which has the result of him being evicted from the premises at which he is required to live". Condition 13 should be modified so as to apply only where appropriate. It is unlikely that the defendant will have any control over the persons staying at the residence to which he was released on the ISO. I would add the words "If reasonably directed in advance by a DSO" to the beginning of condition 13. This will avoid the defendant being in breach of a condition where he cannot control the movements of others.
With respect to place and travel restrictions I would not impose condition 14. This condition is unnecessary in circumstances where the defendant does not present a flight risk, and is bound by condition 15, which is the mandatory restriction on leaving New South Wales. I would impose condition 16.
Condition 17 in its current form requires the defendant to, amongst other things, "take all reasonable steps to participate in interventions as recommended by a DSO" including employment. For the reasons given by Rothman J in State of New South Wales v Mills (No 2) [2017] NSWSC 1442, such a condition is not appropriate. The condition will read "the defendant must take all reasonable steps to participate in interventions as recommended by a DSO concerning the development of a case management plan with respect to education, training or participation in personal development programs". Conditions 18 and 19 are appropriate.
Proposed condition 20 would require the defendant to provide information regarding his financial affairs as required by the DSO. Failure to properly manage his finances is likely to draw the defendant into a criminal milieu. Having regard to the adjustment involved in managing his own affairs, I consider this condition to be appropriate.
The conditions in Part E, drugs and alcohol, are generally appropriate. I would not, however, impose condition 24. This can, if necessary, be covered in the schedule of movements. Further, if the defendant does fall into alcohol abuse, a prohibition on entering licensed premises is unlikely to stop him.
In relation to Part F, non-association, I regard conditions 26 and 27 as appropriate. I do not intend to impose conditions 28 or 29. Proposed condition 29 would potentially require the defendant to disclose his criminal history to a person with whom he "intends to start a close social relationship with". Apart from the difficulty of defining "close social relationship" and the point in time at which an intention to start such a relationship might arise, there is nothing in the defendant's history of offending to suggest he is a risk to persons with whom he has a close relationship. His most concerning offences have been against either a stranger, or a person in authority. In relation to condition 29, affiliating with a club or organisation is very broad. It probably includes attending a football match in a Western Sydney Wanderers jersey. Any concerns surrounding affiliations can be appropriately dealt with in the context of scheduling and associations.
In relation to Part H, weapons, conditions 30 and 31 are appropriate; the defendant should not be allowed to possess or use firearms, or weapons. The defendant submits that these conditions to a significant extent replicate the existing law: see Firearms Act 1996 (NSW) and s 11B of the Summary Offences Act 1988 (NSW) (noting condition 31 (b) and (c) appear to have borrowed the definition of an offensive implement in s 11B of the latter Act). However, the conditions will make clear that the defendant is not to possess or use firearms or weapons, even where it might be lawful to do so, such as where a permit exists or a reasonable excuse is provided for in the relevant legislation. Further, having regard to the defendant's prior use of weapons in committing offences, there is, to my mind, an advantage in making plain that the obligation arises under the ESO quite apart from the obligation imposed on ordinary citizens.

Conditions 32 to 42 - access to the Internet and other electronic communication

The intrusion encompassed by proposed conditions 32 to 42 must be acknowledged. In the present age, much communication takes place electronically. The monitoring of, or the ability to monitor, such communications is a significant imposition. A corollary of the role played by electronic communications in contemporary society is that such communications are likely to reveal an accurate picture of a person's associations, relationships, the state of those relationships and any attitudes held by a person that are shared with others.
Access to the defendant's communications, as well as access to the defendant's Internet activity, will enable significantly greater insight into the defendant's progress. Such access is likely to give an indication as to times when a greater level of support may be required. I am of the view that the majority of these conditions should be imposed.
Proposed condition 34 requires the defendant to notify his DSO before using any device that "has the ability to access the internet". Such a condition is fraught, given the modern reality that many devices, including devices such as televisions, can be used to access the Internet. Making a payment in a café by credit card is likely to result in the use of a device with access to the Internet. Additionally, given the other conditions in place, the condition adds little, if anything.
For the above reasons I will not impose proposed condition 34. I do, however, impose conditions 32 to 33, and conditions 35 to 42 which I regard as appropriate.

Condition 43 - Search and seizure

The powers of search and seizure are intrusive. There is, however, a sound basis for them, particularly having regard to the defendant's prior abuse of drugs and possession (and subsequent use) of weapons. The condition as framed does not, however limit the persons who can conduct the search. The condition should commence with the words "The defendant must submit to a search, by a DSO, or a person notified to the defendant as acting on the DSO's behalf, of …".

Conditions 44 to 47 - Personal details and appearance

I do not regard these conditions as relevant to the defendant having regard to the nature of his past offending and indicators of risk. I will not impose conditions 44 to 47.

Conditions 48 to 55 - Medical intervention and treatment

These conditions are generally appropriate. While I am mindful of the potentially negative effect of denying confidentiality between a treating professional and the defendant, the treatment and monitoring of the defendant's mental health is of central importance to his prospects of rehabilitation. With respect to condition 49, the words "with respect to his mental health or his drug and alcohol use" should be added to the end of the sentence.

Conclusion as to the appropriate conditions

The conditions I regard as appropriate in all the circumstances of this case, based on the above reasons, are those set out in the Schedule to this judgment. I accept there is a large number of conditions. It will be necessary for the defendant to be carefully taken through these conditions and the practical operation of them explained.

The term of the order

The plaintiff sought an order for three years. In determining the length of the order, it is appropriate to consider the conditions of that order. When regard is had to the intrusion into the defendant's autonomy and privacy resulting from the above conditions, three years is, in my view, too long. On the other hand, the defendant still has a long way to go in his rehabilitation. I regard two years as an appropriate length for the order. I hope that over this time the defendant will progress with his rehabilitation, so that the level of intrusion can correspondingly decrease in due course.

Orders

I make the following orders: 1. Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), the interim supervision order made by me on 14 March 2022, and which was for a period of 28 days from 15 March 2022, is revoked. 2. Pursuant to ss 5B and 9(1)(a) of the Act, the defendant be subject to an extended supervision order ("the extended supervision order") for a period of two years from the date of the order. 3. Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, must comply with the conditions set out in the Schedule to this judgment.

State of NSW v Heath (Final) - Schedule of Conditions (137434, pdf) 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: 01 April 2022

At a glance

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Judgment (30 paragraphs)

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Legislation Cited (3)

Cases Cited (11)