By summons filed on 17 June 2014 the plaintiff is seeking orders under the Crimes (High Risk Offenders) Act 2006 (NSW) appointing a qualified psychiatrist and a registered psychologist to conduct separate examinations and directing the defendant to attend those examinations.
(1) An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):
(a) appointing a qualified psychiatrist and a registered psychologist to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;
(b) directing the defendant to attend those examinations.
(2) An order pursuant to section 18B of the Act that the defendant be subject to an interim detention order for a period of 28 days from 24 September 2014, or if released on parole earlier, from the date of release on parole.
(3) An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above.
(4) In the alternative to paragraphs 2 and 3 above:
(a) An order pursuant to section 10B of the Act that the defendant be subject to an interim supervision order for a period of 28 days from 24 September 2014 or, if released on parole earlier, from the date of release on parole; and
(b) Pursuant to section 11 of the Act, directing that for the period of the interim supervision order, the defendant comply with the conditions set out in the Schedule to this Summons.
I am considering only the preliminary proceedings for the purpose of making interim orders.
Section 18B of the Act provides that an interim detention order may be made by the Court if it appears to the Court "(a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order." The plaintiff in the alternative is seeking an interim supervision order. An interim supervision order can be made under s 10B in similar terms to those expressed in s 18B. The decision to make either an interim supervision or detention order is discretionary, and it is open to the Court to refuse to make such an order even if the conditions specified in the relevant sections are satisfied.
The defendant is in custody following conviction on 14 August 1991 for murder. At that time he was also convicted of maliciously inflicting grievous bodily harm and sentenced to 15 years imprisonment to run concurrently with the other sentence. These crimes occurred in a domestic relationship situation. He was sentenced to life imprisonment for murder but his sentence was redetermined on 14 December 1998 to a term of imprisonment for 25 years with a non-parole period of 17 years commencing 25 September 1989. He was first eligible for parole on 24 September 2006.
The defendant was released on parole on three separate occasions but parole was revoked on each occasion due to breaches of the parole conditions. He has either been in custody or subject to supervision by the Probation and Parole Service to the present time, so he continues to be a supervised high risk violent offender for the purposes of this application pursuant to ss 13C and 5J of the Act.
The test for this application is not to predict the ultimate result but merely to find prima facie that the matters alleged if proved would justify the making of either a continuing detention order or an extended supervision order as the case may be. This does not require the weighing up of documentation or the consideration of evidence that will be called at the final hearing. It is necessary before either order can be made that the Court be satisfied that the defendant is a high risk violent offender within the meaning of s 5E of the Act. Section 5E(2) provides -
"An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision." [Emphasis original].
The index offences are sufficient to establish that the defendant is a violent offender within the meanings of ss 4 and 5A. The meaning of "a high degree of probability that the offender poses an unacceptable risk" is considered by Davies J in State of New South Wales v Richardson (No 2) [2011] NSWSC 276; A Crim R 220 at [90] -
"Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation."
The Act specifies the matters to which the Court must have regard when considering whether to make a continuing detention order or an extended supervision order (see ss 17(4) and 9(3)). These relevantly include the safety of the community, the reports of the psychiatrists and other persons appointed to conduct examinations of the offender, the results of assessments, the results of statistical analysis, reports prepared by Corrective Services NSW, the outcome of treatment or rehabilitation programs in which the offender has been involved, his level of compliance with parole obligations or any earlier extended supervision order or any other obligations to which he or she has been subject, his criminal history, the views of the sentencing court at the time of his being sentenced and other information that pertains to the likelihood of future offending.
The defendant has a lengthy criminal history including six violent offences before the commission of the index offences. As I have mentioned, on 14 August 1991 he was convicted of murder, this was of his wife, and inflicting grievous bodily harm, which was to his then thirteen-month-old daughter. The defendant hit his wife in the head repeatedly with a house brick causing her death. His daughter was also beaten with the same house brick and was left with severe brain damage and impaired sight. As mentioned above, the defendant has breached parole on each of the three occasions he has been released on. He was first granted parole at the end of 2008, but this was revoked after the defendant was arrested for attending his wife's house while his children were present in contravention of the conditions of his parole. He was again granted parole on 9 March 2010 and throughout 2010 he allegedly threatened violence against his mother, nephew, wife, stepdaughter and stepdaughter's boyfriend. The defendant was arrested on 24 January 2011 and charged with assault and intimidation against his wife and his parole was consequently revoked. These charges were dismissed and accordingly whilst they form part of the chronology it should not be regarded as significant in the present context.
On 20 July 2011 he was paroled once more and resided at the COSP facility at Cooma. Parole was again revoked on 13 December 2011 after several contraventions of his parole conditions. In this series of post-sentence events the problematical matter concerns the threats which he allegedly made in 2010 to members of his family. Danielle Matsuo, a senior specialist psychologist with Corrective Services NSW, carried out a risk assessment of the defendant and prepared a report dated 28 April 2014. The overall assessment shows that the defendant remains in the high risk category of violent offending relative to other male violent offenders. The risk report confirms the risk which the defendant represents. I should say that considering risks in the context of violent offenders is far less researched than that which involves the consideration of risk with sexual offenders. Amongst other things it is notoriously the fact that murders committed in the domestic situation are very rarely repeated though violence in a domestic situation is often repeated.
The issue here is whether the court should make a continuing detention order or a supervision order. I stress the interim character of the jurisdiction which I am presently exercising. Of significance to my mind is the view of the parole board that the defendant should be released on parole. The parole board is a specialised body which exercises responsibility for all prisoners whose parole needs to be considered. Furthermore it has dealt with this applicant on a number of previous occasions. Although the views of the board are by no means binding on me it seems to me that it is appropriate that I should give those views some significance. The Serious Offenders' Review Council as I understand it has formed the same view as the board. Again, the council has considerable experience in cases of this kind and has considered as I understand it this applicant's position on a number of occasions.
On final analysis the plaintiff's submission supporting a continuing detention order is based upon a submission as to the level of risk. I am not persuaded that the level of risk demonstrated by the applicant's history or by the psychological material which has been provided justifies an interim detention order rather than an interim supervision order and accordingly I propose to make the latter order.
There was some dispute between the parties as to whether I should appoint two psychiatrists to examine the defendant or one psychologist and one psychiatrist as proposed by the plaintiff. I take the view that the appropriate course is that proposed by the plaintiff and accordingly I make the following orders:
1. Pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act") -
1. that Dr Katie Seidler and Dr Richard Furst be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court of New South Wales on the results of those examinations by 22 August 2014; and
2. the defendant is directed to attend those examinations.
1. Pursuant to section 10B of the Act, that the defendant be subject to an interim supervision order in accordance with the conditions specified in the Schedule attached to these orders, signed by me and dated today, from the date on which he is released from lawful custody (including by an order of the State Parole Authority), for a period of 28 days.
2. The matter be listed on 25 July 2014 for the plaintiff to apply for a further interim supervision order referred to in order 2.
3. The plaintiff file and serve any evidence on which it relies by 29 August 2014.
4. The defendant file and serve any evidence on which he relies by 12 September 2014.
5. The plaintiff file and serve submissions on which it relies by 17 September 2014.
6. The defendant file and serve submissions on which he relies by 22 September 2014.
7. Any submissions of the plaintiff in reply to be filed and served by 24 September 2014.
8. The matter to be listed for hearing on 25 September 2014 with an estimate of 1 day.
9. Liberty to apply to relist the matter on one day's notice.
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Decision last updated: 25 August 2015