State of New South Wales v Kaiser

The legislative scheme and principles

1. The primary object of the Act is stated in s 3(1): The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.
2. A secondary object of the Act is to encourage rehabilitation of offenders.
3. At a final hearing for an ESO, the Court must first determine whether it is satisfied to a high degree of probability that Mr Kaiser poses an unacceptable risk of committing another serious (violence) offence if not kept under supervision under the order: s 5B(d).
4. "Serious violence offence" is defined in s 5A of the Act as: 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person - (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to - (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A serious indictable offence is - (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act.
5. I interpolate here to observe that as submitted by Mr Carroll, in March 2006, Mr Kaiser committed a "serious violence offence" as defined. Unlawful and dangerous act manslaughter is captured because of the extended definition in s 5A(2A)(b), which deems the limited intention entailed in manslaughter by unlawful and dangerous act to equate to "recklessness as to causing the death of another person". Otherwise, a serious violence offence requires an intention to cause death or grievous or actual bodily harm.
6. I will return to this feature in my discussion of the expert reports of Dr Eagle and Mr Sheehan which have proceeded, as noted by Mr Carroll, on the basis of erroneous findings by the sentencing judge, Barr J, as to intent. This issue was revisited by the Court of Criminal Appeal in 2009 and held to be in error: Kaiser v R [2009] NSWCCA 130 at [34]. McClellan CJ at CL (with whom Simpson and Howie JJ agreed) said this: "[34] In these circumstances, rather than the finding which his Honour expressed, the appropriate finding was that the applicant was aware that Hunt would assault the victim in circumstances where a loaded firearm would be discharged. It was not open to his Honour to find that it was within the applicant's contemplation that Hunt might kill the deceased. Of course, such a finding was not necessary to support the charge of manslaughter. It was sufficient that the applicant contemplated that Hunt would commit an unlawful and dangerous act being the discharge of the loaded weapon."
7. The making of an ESO requires a state of satisfaction "to a high degree of probability". This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] per Mason P, Giles and Hodgson JJA.
8. The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") [58] per Beazley P.
9. In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that "unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate"; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15] per Rothman J.
10. The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an unacceptable risk (at [44] per Beazley P in Lynn), however consideration of an offender's circumstances, including the offender's interest in liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.

Mandatory considerations: s 9(3) of the Act

1. The Court is required to have regard to certain mandatory considerations set out in s 9(3) of the Act which include, relevantly to Mr Kaiser, the reports of Dr Eagle and Mr Sheehan; assessments prepared by other qualified psychiatrists, psychologists and registered medical practitioners addressing the likelihood of Mr Kaiser committing a further serious offence; the results of any statistical or other assessments on that issue; any report by Corrective Services NSW as to the extent to which Mr Kaiser can reasonably and practicably be managed in the community; any treatment or rehabilitation programs participated in or offered; options available to Mr Kaiser in the community that might reduce the likelihood of him reoffending; the likelihood that he will comply with the obligations of an ESO; the level of his compliance with any obligations he has been subject to whilst on parole or earlier ESO; his criminal history and pattern of offending behaviour; the views of the sentencing court at the time the sentence of imprisonment was imposed, and any other information available as to the likelihood that the offender will commit a further serious offence.

Criminal history, pattern of offending and views of the sentencing court at the time of sentencing: 9(3)(h) and (hi)

1. Prior to the index offence, Mr Kaiser engaged in a pattern of AVO contraventions. He was also charged with stalk intimidate and indecent assault in 2001. The stalk intimidate and indecent assault charges were dealt with under the Mental Health (Forensic Provisions Act) 1990 (NSW).
2. In 2004, within the context of a relationship with SM, he was convicted of contravention AVO twice in 2005 and once in 2006, as well as damage property and trespass.
3. The index offending occurred in March 2006. He denied involvement and was given Supreme Court bail in April 2006 for charges of conceal murder and supply prohibited drug. He lost his job. His use of drugs (Ice) escalated. He committed various offences including take and drive car, theft, assault, possessing implements and larceny.
4. In January 2016, whilst he was outside the correctional facility performing maintenance, he left the grounds of the correctional facility without permission. He stole a car, was pursued by police and threatened to blow himself up at a petrol station by running the car into the petrol bowsers. He ran off and threatened police with a screwdriver when they tried to apprehend him. He was sentenced for this offending.
5. He returned to custody where he remained until release in December 2016. There was further offending after that release - again involving violence against a woman set out in [19] of this judgment.
6. None of his offending comprises a serious violence offence as defined, other than the manslaughter.
7. There were incidents in custody comprising mainly verbal abuse and intimidation when he does not get what he wants. Mr Kaiser tends to use very colourful violent language. To do so is not a serious violence offence.

Court appointed experts: 9(3)(b)

1. The Court obtains substantial assistance from recently conducted, thorough and independent assessments by appropriately qualified psychiatrists and psychologists. The need for these assessments and the centrality of their role is enshrined in the Act as they must be obtained if a final order is to be considered. Given the Court has to assess the current risk presented by a defendant, in some cases, outdated and differently directed expert assessments may need to be given less weight than these recent assessments. The reports also need to be based on correct assumptions and histories and to the extent that they are not, lesser weight may need to be afforded to the opinions expressed if they are based on a mistake or incorrect assumption.

(i) Dr Eagle

1. Forensic psychiatrist Dr Kerri Eagle, in her report of 8 April 2021, provided a diagnosis of bipolar disorder. This is a severe mood disorder characterised by manic episodes and recurrent depressive episodes or hypomanic episodes. Dr Eagle says that Mr Kaiser had been stabilised on prescribed medications. Dr Eagle also diagnosed a severe substance use disorder which was at the time of the interview on maintenance treatment.
2. During his 2021 assessment with Dr Eagle Mr Kaiser demonstrated in her opinion, that he had difficulty "tolerating a discussion of his offending that involved any scrutiny of his version of events" resulting in increased irritability and hostility. She stated that he did not appear to be "genuinely engaged in the process to any meaningful extent but was initially focused on positive impression management, and when that failed completed the assessment with brief superficial responses".
3. In Dr Eagle's view, Mr Kaiser:

• Displayed numerous pervasive cognitive distortions including a distorted attribution of bias, dichotomous thinking and perception of the world as hostile.
• Displayed limited insight into his illness and offending (he justified his behaviour by reference to his illness without accepting responsibility for remaining well on treatment, remaining abstinent from illicit substances or monitoring his stability).
• Although able to identify factors associated with his offending, he displayed difficulty internalising and applying that learning.

1. Dr Eagle concluded that Mr Kaiser:

• Scored at high risk of violent reoffending using instruments (HCR 20).
• Displayed a moderate to high loading of clinical factors associated with violence including a recent history of difficulties with insight; affective and cognitive instability and treatment or supervision response (e.g. while engaging in VOTP displaying maladaptive communication styles).
• Had several historical and clinical risk factors associated with increased risk of violence in the medium to long term including having a serious mental illness which requires assertive treatment in the community; his acknowledged non-compliance with prescribed medication in the past; his acknowledged use of illicit substances even under supervision (with relapse likely to result in non-compliance with treatment); his heightened sensitivity to stressors resulting in emotional dysregulation; and his risk of mental state deterioration if distressed in future.
• Has a history of reactive and planned violence, with his propensity for reactive violence significantly increased during exacerbations in his mental illness (often in the context of illicit substance or alcohol misuse). His violence and stalking behaviour largely occur in the context of relationships and arise out of perceived rejection or injustice.
• Has exhibited violent behaviour in the context of psychological vulnerabilities including entrenched cognitive distortions about women, anti-authority attitudes, poor emotional control, low self­esteem, and interpersonal and relationship deficits. His vulnerabilities are heightened during deteriorations of his mental illness or intoxicated.
• Is at significantly elevated risk of committing a further serious violence offence if unsupervised in the community. In addition to the matters referred to above his main risk factors include his poor emotional control and impulsivity. His risk of reoffending would be heightened if he were released without mental health monitoring or support, unstable accommodation in an environment where he is exposed to antisocial peers and without professional support or vocation.
• Will likely require several years to gradually integrate and adequately address his dynamic risk factors without supervision. Even without relapse or breach this will likely take "at least 3 years".

1. In her 2022 report, based only on document review, Dr Eagle noted that Mr Kaiser's historical risk factors remained unchanged, which correlate with a high baseline level of risk and are associated with an increased risk of violence over the longer term.
2. Dr Eagle concluded that: "[The defendant] has demonstrated some improvements in emotional regulation and the capacity to recognise effective strategies to manage his anger and frustration, but unfortunately he has continued to act impulsively in frustration and anger over the last six months with verbal outbursts towards others and on one occasion by aggression towards physical property. These behaviours reflect ongoing clinical risk factors in affective and behavioural instability. He has during periods of frustration resorted to cognitive distortions including a misattribution of blame towards victims and minimisation of offending. He has also self ceased his Buvidal (buprenorphine) injection against clinical advice, and been reported to have been increasingly aggressive and hostile towards staff indicating problems with treatment or supervision response. [The defendant] appears to have made some gains, including a capacity to engage with corrections staff, and learn strategies that may address his clinical risk factors. He has yet to demonstrate the ability to apply these strategies to situations of frustration and stress. He does not appear to have had a relapse of his major mental illness. It is unclear on the information available, whether he has displayed more pervasive violent ideation. Overall, he appears to continue to demonstrate a moderate loading of clinical risk factors associated with violence."
3. Dr Eagle noted that Mr Kaiser has experienced stress around the care of his mother owing to her age and illness (Parkinson's disease). This could be a destabilising factor in future. His mother does not appear to provide deterrence as regards the possibility of future offences. He otherwise appears to have limited personal supports. He has shown "ongoing problems with sensitivity to stress and poor coping mechanisms, and this will be a particular area of future risk". His protective factors remain "largely unchanged since my previous reports".
4. Dr Eagle acknowledged that Mr Kaiser has demonstrated "some improvements in emotional regulation and the capacity to recognise effective strategies to manage his anger and frustration, but unfortunately he has continued to act impulsively in frustration and anger over the last six months with verbal outbursts towards others and on one occasion by aggression towards physical property".
5. Dr Eagle concluded that: 1. Mr Kaiser's "risk formulation" remains unchanged since her 2021 reports. He remains at an elevated risk of reactive violence towards others, stalking and intimate partner violence, based on his ongoing risk factors. 2. He appears to have benefited from regular contact with parole officers to reinforce strategies to address his risk factors and his ongoing supervision my deter future illicit drug use. 3. He would benefit from the risk management strategies highlighted in Dr Eagle's report dated 8 April 2021 (insofar as they are not being undertaken) and a period ongoing supervision in the community.

(ii) Mr Sheehan

1. Mr Sheehan is a forensic psychologist. In his report of 6 April 2021, he diagnosed Mr Kaiser with an antisocial personality disorder.
2. In Mr Sheehan's view:

• Mr Kaiser's first significant relationship occurred at about age 27. It ended badly with his partner taking out an AVO. What followed was a "destructive pattern" with the "evidence abundantly [pointing] towards a pattern of chronic insecurity with an anxious/ambivalent attachment style, expressed as intense polarization between romantic idealization and intense hostility". He quickly becomes attached and overcompensates to keep his partner with him. He then experiences resentful, jealous and vengeful thoughts.
• His relationship with LD (2017) illustrates how rapidly his intimate relationships can unfold into this complex and destructive dynamic associated with domestic violence, of which he seemed only to have a partial grasp of in assessment.
• The difficulties encountered during the 2017 parole supervision reveal the challenges of adequately supervising Mr Kaiser in the community.
• Mr Kaiser is assessed using the Violence Risk Scale to fall within the high range for violent offending although this is not specific to "serious violence offences" (Mr Sheehan anticipates the recidivism rates for serious violent offences would be lower than violent offences).
• Although he is mostly at risk of lower-level violence within domestic relationships (intimidation, contravene AVOs) the Index Offence (planned shooting) and the 2017 choking offence point towards "an appreciable risk of more serious injury and life endangerment".
• Although his violence onset began in his late twenties, since then it has been persistent, especially given his modest period in the community.
• His primary pathway to violence is through dysfunctional partner relationships with women which spill over into physical violence. This process could occur rapidly (e.g. within months of release). His problems with violence are underpinned by his bipolar affective disorder, personality pathology and substance use disorder. His recent completion of intensive violent therapy, and his abstinence from illicit substances, do not sufficiently address these issues.
• There is little evidence the defendant could independently self­regulate absent intensive supervision. At its core supervision would go to managing his mental health, managing his substance use and closely monitoring his interpersonal relationships; along with ongoing cognitive/behavioural supports.
• Any period of supervision shorter than 3 years would be unrealistic to achieve the change of behaviour required.

1. In his October 2022 report based only on document review, not interviewed, Mr Sheehan considered overall that Mr Kaiser has demonstrated progress since April 2021 having completed 16 months supervised release in the community without breach. Of particular significance is his positive engagement in the supervision process having sustained that relationship over time without becoming outwardly adversaria, which he noted as also due in part to the skills of the supervision team.
2. Despite that progress, he demonstrated intermittent difficulties in managing his temper and slipping back into old habits of responding to obstacles with grievance and righteous anger which has disadvantaged his community adjustment. In Mr Sheehan's view: " ... The case notes reveal the extent to which the balance of therapeutic support and containment has assisted [the defendant] to interrupt a negative cascade into emotional collapse, drug use and aggression, at times when he was elevated, agitated and aggrieved. In the past, [the defendant] has been unable to interrupt this process or utilise his existing supports appropriately. The case notes reveal the challenges of reliably applying therapeutic insights into real time life, without external intervention .... "
3. Mr Sheehan concluded: " ... [the defendant] has yet to overcome his most central risk scenario, which is managing intimate partner relationships. Like many offenders subject to intensive supervision, [the defendant] has been reluctant to pursue such relationships due to the invasive nature of supervision and the added complications of having a relationship scrutinised. Subjectively, this may make the prospect of intimate relationships even more intimidating to him. However in reality, his best chance of achieving the benefits of a stable relationship would be to pursue this with the current system of supports around him. Given that his primary risk of a serious violence offence revolves around his intimate relationships, it cannot be said that [the defendant] has demonstrated mastery or competence in self-managing in this important context. As such, I do not believe the evidence supports a categorical reduction to the violence risk estimate proposed in earlier reports. I believe that [the defendant] remains in the high risk category, with the same caveats expressed in my original report of 6 April 2021."
4. Of relevance is that both Dr Eagle and Mr Sheehan accepted as fact the findings of Barr J at [14] to [15] of the remarks on sentence that there was pre-planning entailed in the 2006 manslaughter and that Mr Kaiser foresaw the possibility of death or injury to his victim. The Court of Appeal held that those findings were not open.
5. Second, I find Dr Eagle and Mr Sheehan's conclusions regarding the risk that Mr Kaiser will commit a serious violence offence if not kept under supervision to be only partially explained and rather speculative.

Reports and assessments of other psychologists and/or psychiatrists or medical practitioners as to the likelihood of the defendant committing a further serious offence; reports of psychologists or others applying statistical or other risk assessments regarding persons with histories and characteristics similar to the offender: s 9(3)(c) and 9(3)(d)

1. Dr Parker prepared a risk assessment report in 2017 concluding on the application of various risk assessment tools that Mr Kaiser was at a very high risk of committing domestic violence offending and at a moderate to high risk of violent recidivism. Dr Parker thought at that point (pre-completion of VOTP) that Mr Kaiser had almost no insight into issues which render his relationships dysfunctional.
2. On a 2022 file review, (but no interview of Mr Kaiser), Dr Parker maintained his opinion because the area of romantic relationships remained untested and that is where Mr Kaiser's core problems lie.
3. Neither of these reports address the risk of serious violence offending as defined but are focused on any violent offending.

Corrective Services Risk Management Report(s) regarding management in the community: s 9(3)(d1)

1. Mr O'Brien and Ms Grabham in their May 2021 report offer the opinion that based on Dr Parker's assessment of Mr Kaiser, his risk factors comprise criminal peers, substance abuse and criminal thinking and to manage those issues in the community, a comprehensive (and somewhat formulaic) suite of ESO conditions is required.
2. In the October 2022 update by Mr Glover and Ms Grabham, there is a focus on conditions "eliminating" certain risks of any offending, with emphasis on his 2017 domestic violence offending. A concern was identified that on interview, Mr Kaiser seemed unable to recognise risk scenarios for violence or risk scenarios for relapse into drug use and how he would manage those things.

Treatment and rehabilitation programs offered in custody and the defendant's participation in those: s 9(3)(e)

1. Mr Kaiser completed the following programs in custody: 1. Getting SMART (2009) 2. Domestic Abuse completed in 2012 and 2015 3. EQUIPS Aggression (2016) 4. EQUIPS Addiction (2016).
2. He then completed the EQUIPS Domestic Abuse Program in November 2019 followed by the VOTP in February 2021.
3. It should be noted that in December 2015 Mr Kaiser consented to referral to VOTP but in March 2016 he was found to be ineligible for the VOTP because his risk score placed him in only the medium category for risk of reoffending and he "did not appear to have an extensive history of historical or institutional violence".
4. Mr Baldacchino completed a report on 13 March 2021 about Mr Kaiser's participation in the VOTP concluding: " ... [the defendant's] presentation fluctuated between periods of adaptive and maladaptive communication with all staff. During periods of deteriorating mental health [the defendant] presented as hostile and preoccupied regarding perceived injustices; anti-authority attitudes; and mistrust of the correctional system. Despite this [the defendant's] participation was more notable for his consistent comprehensive insight and meaningful engagement with the program material. In addition, [the defendant] demonstrated the capacity to engage in assertive communication, cognitive restructuring, consequential thinking, and various strategies which may minimise his likelihood of engaging ln violence .... "

Options available to the defendant in the community, whether or not under supervision that might reduce the likelihood of him offending over time: s 9(3)(e2)

1. The provisions in the Mental Health Act 2007 (NSW) can be invoked to deal with any periods of mental illness or non-compliance with treatment, including scheduling if necessary or a Community Treatment Order. AVOs can be imposed with obvious penalties for breach, including return to custody, something Mr Kaiser is obviously well-motivated to avoid.

The likelihood that the defendant will comply with the ESO obligations?: s 9(3)(e2). His compliance so far with parole: s 9(3)(g)

1. As submitted by Mr Carroll, Mr Kaiser has engaged in a number of rehabilitative steps whilst on parole and complied with his parole conditions.
2. He was released to parole on 9 June 2021 upon the following conditions: 1. You must be of good behaviour. 2. You must not commit any offences. 3. You must adapt to normal lawful community life. 4. You must report: 1. to a community corrections officer at a time and place directed, or 2. if you have not been given a direction, to a Community Corrections office within 7 days of your release. 1. You must report to a community corrections officer at the times and places directed by the officer*. 2. You must comply with all reasonable directions from a community corrections officer about: (c) the place where you will live (d) participating in programs, treatment, interventions or other related activities (e) participating in employment, education, training or other related activities (f) not undertaking specified employment, education, training, volunteer, leisure or other activities (g) not associating with specified people (h) not visiting or frequenting specified places or areas (i) ceasing drug use (j) ceasing or reducing alcohol use (k) drug and alcohol testing (l) monitoring your compliance with the parole order (m) giving consent to third parties to provide information to the officer that is relevant to your compliance with the parole order. 1. You must comply with any other reasonable directions from a community corrections officer. 2. You must permit a community corrections officer to visit you at the place where you live at any time, and permit the officer to enter the premises when they visit you. 3. You must notify a community corrections officer if you change your address, contact details or employment. You must do this before the change occurs if practicable, or within 7 days of the change occurring. 4. You must not leave New South Wales without permission from a community corrections manager. 5. You must not leave Australia without permission from the State Parole Authority.
3. He was subject to the following additional conditions: (12) You must submit to electronic monitoring and comply with all instructions given by your Officer in relation to the operation of monitoring systems for the purpose of exclusion zones only, there are to be no schedules. (13) You must abstain from alcohol. (14) You must not use a prohibited drug or substance, except those that have been prescribed to you. (15) You must, if so directed by your Officer, participate in the following intervention, VOTP Maintenance. (16) You must comply with all directions of the mental health team, including treatment and medication (and if applicable, the conditions of a Community Treatment Order). (17) You must not possess or use a firearm or any prohibited weapon. (18) You must not contact, communicate with, watch, stalk, harass or intimidate victim(s).
4. Whilst under parole supervision since June 2021 Mr Kaiser has:

• Not committed any offences;
• Not been subject to breach action;
• Not taken illegal drugs. This is in the context of the defendant gradually withdrawing himself from the Buprenorphine Program between 21 July 2021 and 1 November 2021, at which point he ceased use ;
• Returned to live with his mother and undertake the role of carer;
• Reconnected with his supportive brother and sister;
• On release followed up on his mental health care. He has continued to take his prescribed medications (Epilim for his bipolar);
• Engaged meaningfully with his DSOs;
• Engaged a psychologist, Mr Vincent Cook, and privately funded monthly sessions from 21 September 2021;
• Maintained contact with his general practitioner, Dr Hevath Palipana, who describes the defendant as a "punctual, honest, respectful, realistic, reliable and friendly patient…".

1. In his supplementary report dated 20 October 2022, Mr Sheehan said this about Mr Kaiser's progress: "15. Overall, the new information reflects positively on Mr Kaiser's progress since his previous assessments in April 2021, now having accumulated over 16 months of community supervisions without breach. This is a significant development in his case, marking the longest period of community living without violence offending since 2005. He has maintained his medication, sought a treating psychologist and resisted relapse to substance abuse…"
2. The intermittent difficulty in regulating his behaviour noted whilst on parole does little to diminish the substantial progress which has been made. As Mr Carroll observed it is apposite to note that the points of conflict have largely been around the defendant's efforts to improve his ability to re-integrate into the community, for example: 1. to gain a drivers' licence 2. to gain a heavy vehicle licence; and 3. to attend church (whilst he responded poorly to being banned, he was excluded initially purely upon the basis of his criminal record).
3. As Mr Carroll candidly submitted, the likelihood is that Mr Kaiser would breach some aspect of the proposed ESO orders, not by committing a serious violence offence, but by some minor infraction thus criminalising his behaviour. It is likely, (given the JIRS statistics), such a breach would lead to him being returned to custody. This would be counter-productive to rehabilitation.

Does the defendant pose an unacceptable risk of committing another serious violence offence if there is no ESO?

1. Mr McGorey on behalf of the State submitted that the material tendered is sufficient to satisfy the Court to the necessary standard of the risk that Mr Kaiser presents and that Mr Kaiser "benefits from the supervision, support and structure he receives from Community Corrections". That latter observation is of course not the test; nor is it a relevant consideration in the assessment the Court has to make.
2. Mr Carroll submitted firstly, no expert or tool is able to predict whether an offender will offend again in the future. Rather, the tools highlight the number characteristics possessed by the defendant that are also possessed by those who re-offend in a violent manner. None of the tools measure the risk of committing a "serious violence offence" as required by the Act. The future prediction based on such tools remains imprecise and imperfect and the Court should exercise caution in placing significant weight on such assessments.
3. Secondly, a determination by experts that the defendant poses an "above average" or "well above average" risk does not correspond to the requisite test that the Court needs to consider. The Court needs to determine if such a risk is in fact "unacceptable" and needs to be satisfied to "a substantial degree" of the risk posed. Inherent in the way the Act is structured is that a certain amount of risk can be considered acceptable.
4. Mr Carroll emphasised that the State seeks an ESO on the basis of an asserted unacceptable risk of Mr Kaiser (now almost 52 years old) committing a serious violence offence when he has never previously committed an act of violence with an intention or recklessness to death, grievous bodily harm or actual bodily harm.
5. Mr Carroll submitted that Mr Kaiser has been crime free in the community (as at the hearing date) for 510 days. He has stable accommodation where he is the carer for his mother. He has the support of his brother and sister. He has been proactive and compliant with his mental health treatment regime. He has abstained from illegal drugs. He has completed all treatment programs that are available through Community Corrections.
6. Mr Carroll submitted that Mr Kaiser has demonstrated that he can reintegrate into the community without offending. He has been proactive in ensuring that he addresses his criminogenic needs. He has clearly demonstrated a commitment towards rehabilitation. The imposition of a further ESO is premised on the basis that he will lose this commitment. His progress for this significant amount of time - 18 months - strongly supports a finding that his commitment to his rehabilitation is enduring. Any suggestion that a future offence may amount to a "serious violence offence" is only speculative and cannot satisfy the high degree of probability standard required by the Act. The Court cannot be satisfied on the supporting documentation or the independent Court-appointed expert reports, that any further offence committed by the defendant will rise to the level of a serious violence offence.
7. The State bears the onus of establishing that the nature of the risk rises to a risk of a serious violence offence so as to engage the Act's jurisdiction. The Act does not provide for the continued supervision of persons who have served their sentence where they pose a risk of further violent offending.
8. In conducting the evaluative exercise that considers both the gravity of the risk that may eventuate, based principally on offending committed at least 18 years ago, and the inherently uncertain likelihood of that risk eventuating, the Court cannot be satisfied, to the high degree of probability required, that the risk posed is one that is unacceptable.

Decision

1. I accept that Mr Kaiser has shown a history since 2009 of successfully engaging in relevant rehabilitation programs while in prison, particularly focused on management of his violence.
2. I also accept that since being released into the community, Mr Kaiser has been working constructively with his DSOs and has been actively engaged with cognitive therapy with his private psychologist Vincent Cook. There is no suggestion that he will cease with this privately funded and arranged support. He has abstained from drugs and remained crime-free since June 2021. He has shown focus and determination to rehabilitate himself. He has a mental illness which is managed with medication and counselling.
3. Mr Carroll's submissions set out in [78] to [84] are persuasive. The evidence tendered does not satisfy me to a high degree of probability that Mr Kaiser poses an unacceptable risk of committing a serious violence offence if not kept under supervision under the order. The comments by the experts Dr Eagle and Mr Sheehan to the effect that he may, are in my view entirely speculative.
4. The statutory test is not satisfied and the summons must be dismissed.

Orders

1. I make the following orders: 1. The Summons is dismissed. 2. The plaintiff is to pay the defendant's costs.

---

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: 09 December 2022