State of New South Wales v Keir

Legislative scheme

1. As set out in s 3 of the Act, the primary object of the 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 the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.
2. Section 5B of the Act specifies the circumstances in which the Court may make an ESO: 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.
3. Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious offence, must be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. [2]
4. The meaning of "unacceptable risk" was considered in Lynn v State of New South Wales: [3] "As the respondent pointed out in its submissions, by reference to dictionary definitions, the word 'unacceptable' requires context in which, or parameters against which, the 'unacceptable' risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is 'so far from a required standard, norm expectation, etc as not to be allowed'. The Oxford Dictionary defines the word by reference to its antonym 'acceptable'. Something is 'acceptable' if it is 'tolerable or allowable, not a cause for concern; within prescribed parameters'. What the court, therefore, must find to be unacceptable is the 'risk' that the offender poses 'of committing a serious violence offence if … not kept under supervision'. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made."
5. Importantly, the impact that an ESO may have on the defendant's liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision but, the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [4]
6. Section 9(2) of the Act requires that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.
7. Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

Threshold requirements

1. The defendant accepts that the threshold requirements set out in ss 5B(a), (b) and (c) of the Act are satisfied.
2. The defendant is a person who has served a sentence for a serious offence under s 5B(a) and is a supervised offender within the meaning of s 5I of the Act. Further, an application has been made in accordance with s 5I.

The defendant's personal circumstances

1. The defendant is currently 64 years of age. He was born in England and moved to Australia in 1968. Prior to being imprisoned, he lived in Sydney and worked as an upholsterer.
2. In 1984, he married his first wife, Jean Angela Keir (nee Strachan). In 1988, Jean disappeared.
3. Weeks later, he developed a relationship with another woman, Rosalie Keir (nee Canonizado). He married Rosalie in 1989.
4. In 1991, Rosalie was strangled with the cord of a lamp in her bedroom. The room was set on fire. The defendant was charged with both her murder and malicious destruction of property. He entered pleas of not guilty.
5. On 6 April 1993, he was found not guilty of both offences.
6. During the course of investigating Rosalie's death, bones were discovered buried in the backyard of the defendant's premises. The defendant was then charged with the murder of his first wife, Jean. He entered a plea of not guilty. He denied killing his first wife but was convicted of her murder on 17 September 1999.
7. He maintained his innocence and pursued an appeal through the appeal processes but, after a second retrial, he was again convicted.
8. He was sentenced to a term of imprisonment of 22 years with a non-parole period of 16 years. He was not released on the expiration of his non-parole period. He was released on 18 October 2019. He has never accepted responsibility for the death of Jean, despite the conviction.
9. On release in 2019, he initially resided at the Community Offenders Support Program Centre (COSP) residence attached to Long Bay Gaol. In January 2020, he commenced independent living, albeit subject to an ISO. On 18 May 2020, he was made subject to his first ESO for a period of two years.
10. Prior to being convicted of the murder of his first wife, he had a limited criminal history. That limited history does not bear upon the issues involved in these proceedings.
11. Further, his time in custody was satisfactory in the sense that, after initial adjustment problems, there were no events during his time in custody that might indicate an ongoing propensity for violence.
12. The defendant is currently engaged in full-time employment as an upholsterer. He has a degree of autonomy in his work.
13. Prior to the death of his two wives, the defendant appears to have had a relatively "normal" life. There is no history of any significant trauma in his childhood. He got on well with his parents and brothers. His parents died many years ago.
14. He attended Cabramatta and then Mt Druitt High School. He undertook an upholstery apprenticeship after leaving school. He worked in an upholstery business for 10 years until such time he was charged with the murder of his second wife. He performed various jobs whilst in custody.
15. His physical health appears to be good. He takes medication for blood pressure. He experienced panic attacks and anxiety whilst in prison but has received no psychiatric treatment and does not take psychiatric medication. He does not suffer from any cognitive impairment or intellectual disability. He has never been convicted of a serious sexual offence.
16. He has not been found to have breached the conditions of parole or the conditions of any ISO or ESO which has been imposed.
17. However, he is experiencing some issues with alcohol and gambling, which have developed since his release from custody.

The index offending

1. The defendant was convicted of the murder of his first wife, Jean, following a judge alone trial in 2004.
2. As set out in the conviction judgment, [5] the trial judge accepted that by the end of 1987, the defendant's relationship with Jean was stretched and that Jean had developed a sexual relationship with another person. The defendant became aware of this.
3. In February 1988, Jean had gone to Culburra without the defendant. The defendant said that she had done so to sort herself out.
4. On 9 February 1988, the defendant went to Culburra to bring his wife home. He did so against her will and used a moderate degree of force. On the way home she fled from him but was ultimately forced to come home.
5. From the time that she entered the house upon arriving home, she was never seen again or heard from by her family, her friends or any government services, although the defendant gave evidence of sightings.
6. Her bones were found in May 1991.
7. Whilst the precise mechanism of Jean's death was never determined, it was accepted that she died a violent death at the hands of the defendant. However, because of the uncertainty surrounding Jean's cause of death, the sentencing judge could not find that the defendant had intended to kill her as opposed to intending to cause her grievous bodily harm. [6]
8. The defendant's second wife died in 1991, having been strangled with the cord of a lamp in her bedroom in her home. Subsequent to that strangling, the house was set on fire and her body found partially burnt.
9. The defendant denied killing his second wife, Rosalie. He was, however, charged with her murder. He entered a plea of not guilty and was acquitted.
10. An issue thus arises as to the extent to which I can have regard to or give any weight to the fact that the defendant was charged with the murder of his second wife. As the experts tend to suggest and as was generally accepted by the defendant, it may be that any risk analysis might be different if the defendant had been convicted of murdering both his wives.
11. In his judgment in respect of the first ESO, [7] Button J observed that, although the acquittal on the charge of murder is not entirely irrelevant, the allegation that he killed his second wife was not proven against the defendant. He thus retains the presumption of innocence and that allegation should be given very little weight.
12. In State of New South Wales v Reginald Collingwood (a pseudonym), [8] Hamill J stated: "I must accept the State's submission that the authorities establish that it is not necessary that past criminal activity be established to the criminal standard before it is relevant to the consideration of whether an unacceptable risk is established (or, here, that the material would justify such a finding at the final hearing). Accordingly, I have considered police reports where no charges were laid and cases where the defendant was discharged after a defended hearing or otherwise. The criminal history is set out in an evidence summary under s 50 of the Evidence Act 1995 (NSW). This encompasses offences committed, or allegedly committed, in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. The facts and circumstances of the allegations and offending is contained in facts sheets, witness statements, complaints, court records and transcripts."
13. Section 9(3)(i) of the Act provides that the Court can consider any other relevant factor when determining whether an ESO should be made. The Court can thus consider alleged criminal conduct even if there has been no conviction. [9]
14. The weight to which alleged criminal conduct may be given on an application such as this might depend upon whether charges were ever laid against the defendant or whether the defendant has proceeded to a trial and obtained a verdict of not guilty.
15. In respect of his second wife, the defendant was subject to a trial and obtained a verdict of not guilty.
16. It is not possible for a Court on an application such as this to determine whether the defendant might have been convicted on a lesser standard (that is, not beyond a reasonable doubt) or make any findings as to the strength of the prosecution case. However, it is relevant to observe that the defendant was committed for a trial, such that there must have been some satisfaction at that stage of the proceedings that there was at least some evidence in support of the prosecution case.
17. In the end, it seems to me that the approach adopted by Button J on the first ESO application is the correct approach. I have regard to the fact that the defendant was alleged to have killed his second wife but give that fact little weight in the overall circumstances.

The defendant's history since being released

1. I have already referred to the defendant's personal circumstances. There is nothing in the evidence to suggest that he has been in breach of the terms of the existing ESO. Despite that, the State submits that there are a number of instances of what is described as "concerning conduct" which have emerged in the past two years. In particular, the State submits that there have been concerns in respect of his interactions with women. Further, the State submits that his development of problematic gambling and drinking behaviours are also of concern.
2. Firstly, the State refers to the events which were the subject of comment in the earlier ESO judgment when the defendant met a woman at a nudist beach. It is not necessary to refer to those events again as they are summarised in Button J's judgment. [10] The State submits that the conduct referred to therein gives rise to a concern that the defendant has a capacity to become fixated in the context of relationships. The State also refers to two records in the OIMS notes.
3. On 15 November 2020, the defendant was observed to be standing in the doorway of his unit with his pants down, masturbating toward a woman in the open communal area. The actual circumstances of that occurrence are unclear.
4. The State also points to the defendant's record of online searches which include potentially pornographic material, such as naked yoga and upskirt videos.
5. Finally, the State points to an incident when the defendant informed his DSO that he had been talking to a woman as she was walking home from the pub. She was in an intoxicated state. He appears to have walked her home and then decided to turn around and go home himself.
6. The State suggests there are some parallels between that behaviour and the behaviour referred to in Button J's judgment. I have some difficulty with that latter proposition. At least, on one view, the defendant was doing what he was required to do. That is, not take his meeting with the woman any further but rather go home and report it to the DSO. This demonstrates compliance rather than non-compliance with the ESO. He had not been prohibited from being in the company of women.
7. The State also points to evidence obtained through the DSO that the defendant has been consuming excessive quantities of alcohol and engaging in gambling through online accounts. That appears to be so. The estimate of his drinking varies between drinking every night and heavily drinking three times a week. There is, however, evidence which suggests that he has reduced his drinking since October 2021. He appears to have lost some significant sums gambling, although his gambling has not reached a level which would lead to the diagnosis of a gambling disorder.
8. I raised with the State why such conduct increased the risk in circumstances in which there is no evidence that the index offending was related to the consumption of alcohol or gambling. The State submits that the fact that he might get drunk and lose money on gambling could lead to him becoming angry or frustrated or losing his inhibitions. At least, on one view, that seems a tenuous relationship, although it is of course always possible that a person with a gambling problem might become angry on discovering a loss of money.
9. Having said all that, the defendant has complied with the obligations imposed on him by the first ESO. Whatever the State's concerns about limited instances of behaviour, it has not risen to a level where it has been considered that he has not complied with the terms of his supervision.
10. Further, the defendant: 1. Works full-time; 2. Lives independently; 3. Participates in community activities such as ten-pin bowling; and 4. Appears to have some community support.
11. In some respects, this is an unusual matter, as the defendant is a person who has served his full term of imprisonment without incident and has complied with the conditions of supervision imposed upon him since being released. Putting aside the allegation in respect of his second wife, his criminal history is limited to one event which occurred in 1988, albeit the offending was of the most severe type, being murder.

The critical issue

1. The critical issue 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 the supervision of an ESO.
2. The risk which has been identified by the State as being unacceptable is the risk of the defendant committing another serious offence involving intimate partner violence.
3. The defendant does not have a cognitive impairment, intellectual disability, or psychiatric illness which would impact upon or lead to any tendency to be violent. There is no history of violence in custody or during the period of the first ESO.
4. It is generally accepted by the experts that the risk of intimate partner violence arises when the defendant has formed a relationship with a woman. There is no suggestion that the defendant poses an unacceptable risk of perpetrating violence upon a woman he does not know, with whom he does not have a relationship, or in some public place.
5. He committed the index offence 34 years ago. He has been living an independent life in the community, albeit under the supervision of an ESO.

The expert evidence

1. The State relies on evidence from Dr Davis and Dr Singh. Neither doctor gave oral evidence. Dr Singh also prepared a report for the first ESO application which is in somewhat similar terms.
2. The State also relies upon other expert evidence in the nature of evidence from Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer employed by Corrective Services NSW, as well as other expert risk management and risk assessment reports. The State also relies on all of the material previously put before Button J on the first ESO application. Of particular significance is the expert psychological report of Dr Chelsey Dewson, a forensic psychologist.
3. Both Dr Davis and Dr Singh provided comprehensive reports and appear to have reviewed most of the material relied upon by the State on this application. Dr Davis obtained an extensive history from the plaintiff relating to his offending. The State points out that in respect of the history obtained concerning the death of his second wife, the defendant appears to have changed his story somewhat, suggesting that, regarding the witnesses who had seen him at the house 10 minutes before the fire, that he didn't know where that evidence had come from. As the State points out, he had previously agreed that he had been there. I am not sure of the weight I can give to that assertion as he was acquitted of her murder and I am not undertaking a re-examination of whether he should have been. I have regard only to the allegation but give it little weight.
4. In terms of offender-specific treatment, Dr Davis noted that the defendant had had some sessions with a psychologist from Corrective Services NSW but has discontinued such treatment. Dr Davis observed that the defendant continued to deny any offending, admitting only that he may have slapped his wife's face twice 35 years ago but had had 3 successful relationships since that time. He referred to participating in a violent abuse programme and doing a violent offender's program in custody.
5. Dr Davis did not consider that the defendant currently meets the criteria for a mental illness, albeit he experiences periodic and reactive difficulties with depressed mood, anxiety and panic attacks. He did not meet the criteria for PTSD. He presented as a polite and elderly man with shallow emotional expression and a degree of grandiosity. He was defensive, albeit he admitted he has issues with alcohol.
6. Dr Davis found it difficult to provide a detailed formulation regarding the defendant's offending behaviour as there is a paucity of information relating to the offending in 1988 and he denies committing the offence. However, he said the offending probably occurred in the context of sexual jealousy abandonment issues and archaic attitudes regarding females.
7. Dr Davis noted that his risk assessment would have been different if the defendant had been convicted of both murders, but he was proceeding on the basis that he was found not guilty in relation to his second wife. Further, he noted that any prediction as to future risk is difficult, as risk assessment tools were not developed for individuals with such unusual criminal history.
8. Dr Davis carried out various tests under the Hare Psychopathy Checklist (PCL‑R). The defendant demonstrated some features of psychopathy but his total score was lower than the average for the offender population. His elevated scores tended to suggest a narcissistic personality feature. His total score under the standardised offender classification scale (LS/RNR), which covers the majority of the best established predictors of general criminal conduct, was in the upper end of the "medium" range of risk. However, none of the areas were considered to be particularly problematic.
9. Further, the results of the violence risk appraisal guide (VRAG-R) suggested a somewhat lower than average number of static risk factors for violence.
10. Dr Davis referred to the potentially concerning behaviour which was identified by the State and which I have already commented on. He disagreed that the so-called concerning behaviour subsequent to the imposition of the ESO was concerning from a risk perspective. He concluded that "taking these recent developments into consideration, it is my admittedly conservative opinion that Mr Keir currently poses a low to moderate risk for general violence." By this, Dr Davis means that he is being conservative against the interests of the defendant in concluding that the risk is low to moderate for general violence.
11. Further, Dr Davis found it very difficult to provide an opinion regarding the most likely scenario for future violence. In the end, having regard to all of the factors referred to in his report, he concluded that the defendant poses a moderate risk for intimate partner violence, albeit he does not currently have an intimate partner and the opinion thus pertains to a hypothetical future relationship.
12. Dr Davis ultimately concluded as follows: "There is nothing to suggest that Mr Keir poses a high risk for any form of offending behaviour. However, I note that there is an unknown quality to what his life will be like should he no longer be subject to an ESO. Indeed, given that Mr Keir's risk for violence is focused on intimate partner violence, the Order has served to put almost insurmountable barriers in the way of his desire to find a romantic partner … The ESO has undoubtedly served to contain the risk, albeit at the cost of depriving Mr Keir of intimate companionship".
13. Dr Singh came to a somewhat similar view. She again observed the defendant's insistence that he was innocent and that he should not be on an ESO. He reported no recent problems with violent ideation or intent. He does not present with symptoms of a major mental illness or recent affective, behaviour or cognitive instability. He did complete the Violent Offenders Therapeutic Program (VOTP) programme and is currently engaged in the Corrective Services NSW EQUIPS program and with an addiction counsellor at Odyssey House, albeit his engagement with his psychological problems in custody and the community has been limited by his maintenance of his denial of the offending.
14. Dr Singh noted that any pattern of violence occurs primarily in the context of intimate relationships. Dr Singh had regard to the SAR-V3 as a set of guidelines for the assessment and management of intimate partner violence, albeit she concluded that the defendant's unique circumstances and vulnerabilities were such that there was a significant limitation to this particular risk assessment.
15. Dr Singh also noted the defendant did not have problems establishing non-intimate relationships as evidenced by his report of positive relationships with work colleagues. He did not present with general anti-social conduct.
16. In the end, whilst noting the limitations of the assessment, she considered that the defendant would require a high level of intervention/effort to mitigate against the risk of future intimate partner violence.
17. She also observed that he has a number of protective factors. Indeed, in respect of the motivational items, he had the presence of all the protective factors which are normally assessed. This includes stable work and structured leisure activities. He manages his finances. The only qualification was that if his gambling persisted this may result in financial difficulties. He appears to have embraced positive life goals.
18. Dr Singh considered that his personality and vulnerabilities have contributed to the severe difficulties he has experienced in his intimate relationships. She assessed him as being in the category of requiring a high level of intervention/effort in respect of repeat intimate partner violence, although she again noted the absence of victim factors limiting the assessment. I am somewhat uncertain as to what this means. I take it to mean that her opinion is highly qualified by the absence of multiple victims, such that the term repeat partner violence does not really fit this defendant.
19. Importantly, she was asked to describe how his risk factors might change or fluctuate over time. She referred to the onset of new dynamic risk factors, including alcohol use and gambling behaviours, having increased his risk factors. However, she also thought his entrenched personality disorder traits were theoretically amenable to being modified over time. She thought that maintenance and enhancement of his protective factors such as employment and pro-social engagement may serve to mitigate his risk of future offending.
20. In her report of 1 April 2020, prepared for the first ESO application, Dr Singh expressed the view that if the defendant was subject to an ESO for a period of two years and was compliant with the conditions this would enhance the likelihood of not reoffending. He has been compliant but Dr Singh appears not to have changed her assessment of risk.
21. In her report dated 31 March 2020, also prepared for the first ESO application, Dr Dewson opined that the risk for general violence was low and intimate partner violence moderate. She thought that a period of two years' supervision under an ESO would be of sufficient duration for the defendant to transition back into the community and manage his risks.
22. That period has expired and the defendant has developed protective factors such as employment, recreational activities and family contact.

The risk assessment reports

1. Samuel Ardasinski, a Senior Psychologist (Forensic) employed in the Serious Offenders Assessment Unit, provided a report dated 18 February 2022. Mr Ardasinski assessed the defendant as falling into the moderate risk category for repeat domestic violence on a structured professional judgment tool. This aligns closely with the assessments of the Court-appointed experts, Dr Dewson and Dr Singh, undertaken in 2020. Mr Ardasinski observed that if an ESO is not imposed, the defendant would be at unconditional liberty for the first time since 1998. He would have no support from or any monitoring by Corrective Services NSW, although he would still have a job and family support. This is so but the fact that a serious offender might find himself in the community unsupervised for the first time after serving a long sentence does not of itself mean that he poses an unacceptable risk.
2. Mr Ardasinski expressed concern that he would still have a gambling problem and difficulty controlling his drinking. Without having undertaken adequate intervention, Mr Ardasinski suggests that it is unknown how these new criminogenic factors may intrude upon any new intimate relationship which may form after the expiry of his current ESO.
3. The impression I gained from Mr Ardasinski's report was one of uncertainty, that is uncertainty as to whether the defendant presented a risk. Whilst the defendant complied with the conditions of the ESO, he had not formed a relationship in that two year period and thus there was no means of factoring his behaviour into the assessment of future risk.
4. Ashley Newby, a Community Corrections Officer within the ESO Team, also provided a risk management report. In her report, she noted that the defendant provided an incorrect name to the woman he met at a nudist beach back in 2020. He frequently dyes his hair and has lost a significant amount of weight. She expressed concern that he has the capacity to withhold information from any woman relating to his identity and criminal history. Again, the issue relating to the nudist beach happened before the imposition of the last ESO. There is no evidence of him using a false name since but the fact that he did so once is still relevant.

Determination

1. As set out in s 9 of the Act, the Court may determine an application for an ESO by either making an ESO or dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO the safety of the community must be the paramount consideration of the Supreme Court.
2. In determining whether or not to make an ESO, I must have regard to the matters set out in s 9(3). As will be evident from this judgment, I have regard to those matters. I have had regard to all of the evidence relied on by the State, although it has not been necessary to refer to it all.
3. Other than the somewhat qualified expert evidence to which I have referred, there is little in any of the factors referred to in s 9(3) which would support the proposition that the defendant continues to pose an unacceptable risk of committing a further serious violence offence. That is because: 1. He has complied with the existing ESO; 2. He lives appropriately in the community undertaking employment and pro-social activities; 3. His criminal history is limited to one offence, albeit an offence of the most serious kind; 4. In circumstances in which he has not engaged in or built any long-term relationship, there is nothing in his conduct since being convicted which would assist in determining the level of his risk, except that he has not, during the period under supervision, exhibited any behaviour relevant (in a negative way) to the risk of intimate partner violence; 5. Indeed, this point is emphasised by both experts, Dr Davis and Dr Singh. It is very difficult to undertake a risk analysis having regard to the various tools in the circumstances of this particular defendant; and 6. The views of the sentencing judge many years ago do not really impact on this assessment and there is no other information available as to the likelihood that the defendant will commit a further serious offence.
4. Determining whether the defendant poses an unacceptable risk is an evaluative task. That evaluation must take place in the context of the position the defendant is now in and having regard to all of the evidence. The evidence in favour of the State's application is somewhat less than compelling.
5. The essential difficulty which arises in this matter is that the defendant has not been in the community, free of supervision, for many years. He has been subject to either an ESO or ISO since being released from prison. He has complied with all of the conditions of supervision, thus demonstrating he is able to comply with those conditions, but the Court is required to assess the risk if not under supervision.
6. Even the State's experts have had difficulty offering an opinion on this issue. The range between Dr Davis and Dr Singh is between low to moderate and high but their views are highly qualified. Dr Davis says that even his low to moderate assessment is conservative, meaning that the risk may be less. The risk was expressed in similar terms on the last occasion by Dr Dewson.
7. I raised with Mr Mykkeltvedt (on behalf of the State) as to how the risk assessment could be any different at any time in the future if the conditions of an ESO are designed to generally prevent the defendant from ever having an intimate partner. His history of compliance suggests that he will continue to comply with conditions which require him to notify his DSO should he form a relationship and the DSO might, in their discretion, inform the woman of the defendant's history.
8. There are only limited incidents of so-called concerning behaviour and it is not clear how these limited incidents inform the risk.
9. The first incident occurred prior to the imposition of the ESO. Further, Dr Davis suggests that the defendant's interest in nudism does not increase the risk of intimate partner violence.
10. The next incident appears to demonstrate compliance with the ESO rather than non-compliance. Walking along the street and talking to a woman who he met at the pub who may have been intoxicated is not an indicator of the potential for violence towards a partner.
11. The fact that he was observed to be naked and masturbating on one occasion may be concerning behaviour but the risk in this case is not the risk of sex offending or violence towards a random person.
12. I accept the suggestion that the fact that the defendant has taken to both alcohol and gambling since he has been released from custody raises additional criminogenic factors but there is no evidence of the prior offending being related to alcohol or gambling.
13. Mr Ardasinski raises these factors in his risk assessment report but then says that it is unknown how they might impact upon the risk of future intimate partner violence. It is important to observe that it is the State which must establish the unacceptable risk.
14. The defendant has been in the community for three years after serving a very lengthy sentence. He has not shown any indication in that period of a tendency for violence but he has not been in a relationship. Of course, the question is not how long he has been under supervision but whether he poses an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO. Nor is the question, at this time, whether the risk might be reduced at some future time. If kept under supervision for a further two years, he may comply with all the conditions or he may not.
15. Perhaps a further two years without incident might tend to suggest that the risk of intimate partner violence would be assessed as reduced at that time but, again, that is not the question I am addressing. Further, Dr Dewson suggested more than two years ago that the risk at this time would be less than she suggested at that time (low to moderate) if he demonstrated compliance with the conditions of supervision for two years.
16. Nor is the impact on the defendant's liberty a relevant consideration in assessing whether the defendant poses an unacceptable risk.
17. It is important to focus on the statutory test. I must be satisfied to a high degree of probability. This means something more than the civil standard, although not beyond a reasonable doubt. I am asked to be so satisfied based on all of the evidence relied on by the State but specifically having regard to the evidence of the experts.
18. Yet, I would not be so satisfied based on Dr Davis' opinion. A qualified view expressed as low to moderate risk and expressed to be conservative would not lead me to be satisfied to a high degree of probability that the defendant poses an unacceptable risk, having regard to all of the other evidence.
19. Dr Singh's view is more pessimistic on risk but her opinion is expressed in a highly qualified way. Indeed, she appears to have used diagnostic tools which even she doubted.
20. In the end, I am very much left with the impression of the experts being uncertain in their opinions. The fact that the defendant killed his first wife 34 years ago is significant but, I am not making a determination of risk all these years after merely having regard to the fact of the offending, as serious as it was.
21. The purpose of the legislation is to protect the community but there is no onus on the defendant to convince the Court that he should not be subject to supervision. It is the State who must adduce evidence sufficient to establish to a high degree of probability that the risk is unacceptable.
22. The evidence is not sufficient to convince me in this matter. I am not satisfied to that required standard that the risk of the defendant committing another serious violence offence if not supervised is unacceptable.
23. In the circumstances, the summons is dismissed.
24. I order the plaintiff to pay the defendant's costs.

Endnotes

1. State of NSW v Keir (Final) [2020] NSWSC 570.
2. Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).
3. (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51] (Beazley P).
4. Ibid at [44], [56]-[58] (Beazley P), [126]-[128] (Basten JA) and [148]-[149] (Gleeson JA).
5. R v Keir [2004] NSWSC 964.
6. R v Keir [2004] NSWSC 1194 at [26]-[27] (Campbell JA).
7. State of NSW v Keir (Final) [2020] NSWSC 570 at [31].
8. [2021] NSWSC 1365 at [49].
9. State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14] (R A Hulme J).
10. State of NSW v Keir (Final) [2020] NSWSC 570 at [9]-[19].

Amendments 15 August 2022 - [69] - First sentence, "The defendant does have a ..." corrected to "The defendant does not have a ..." [84] - Third sentence, "major mental illness or recent effect of behavioural ... " corrected to "major mental illness or recent affective, behavioural ..." 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: 15 August 2022