State of New South Wales v King

State of New South Wales v King - [2019] NSWSC 151 - NSWSC 2018 case summary — Zoe

Criminal Offending

In its written submission, the State produced a detailed chronology of the defendant's passed offending, which is annexed to this judgment as Annexure B (the entries for 17 September to 30 November 2018 are discussed further below).
In the preliminary hearing in this matter, Wilson J gave a broad description of the defendant's past offending: State of New South Wales v King [2018] NSWSC 1408 ("King No 1") at [5]-[25], which I adopt and extract below: [5] That conviction is simply the latest in a history of criminal offending - a history which, the State argues, is demonstrative of the risk posed by the defendant of committing serious offences if not supervised in the community. [6] The defendant is a 46 year old man who is one of six children to his family. Born in Sydney in 1972, the defendant's family moved to Lismore when he was aged about 8 years of age. Much of the defendant's criminal history arose in Lismore. [7] At age 14, the defendant was dealt with by the Lismore Children's Court for an offence of carnal knowledge, being placed on a 12 month probation order (which was not disturbed on appeal). The following year he was before the courts for stealing, malicious injury, a number of break and enter type offences, and trespassing. He was, variously, placed on probation, committed to an institution, or made subject to a supervised suspended control order. [8] In 1988, the defendant again made fairly regular appearances before the Children's Court, for offensive manner, offensive language, and obscene exposure. He was frequently marked as being not before the court. The following year saw offences (often multiple counts) of break and enter with intent, offensive language, assault, trespass with intent to steal, entering a building with intent, driving with a mid-range prescribed concentration of alcohol ("PCA"), being an unaccompanied learner, offensive behaviour and, from the previous year, failing to appear. [9] The year 1990 contains a similar list of convictions for offences of like nature, although dealt with before the Local Court, the defendant having attained the age of 18 years. That year also saw the defendant before the court for the first time for drug offences, serving terms of imprisonment for possession and self-administration of drugs. [10] In 1991, 1992, and 1993 the defendant was regularly before the Local Court at Lismore for dishonesty and drug offences, serving a number of short sentences of imprisonment. In 1994, he was dealt with for further drug and dishonesty crimes, together with offences of assaulting and resisting police. [11] In 1995 the defendant was before the Lismore District Court for an offence of robbery in company committed in 1993, but not dealt with earlier because the defendant had failed to appear. On 10 April, a sentence of 4 years imprisonment, with a non-parole period ("NPP") of 2 years with supervision specified, was imposed upon him. There were other offences committed that year, including multiple counts of larceny, resisting police, and assault. [12] On his release to parole in 1998, the defendant was convicted of a number of driving offences, including a mid-range PCA offence, and his parole was revoked. He was returned to custody but, upon later release, resumed the pattern of a criminal lifestyle, with convictions from 1999 for offensive behaviour, intimidating a police officer, offensive language, entering enclosed lands, assault, break enter and steal, damaging property, and assault occasioning actual bodily harm ("AOABH"). [13] The new millennia saw no change in the defendant's conduct. The only years since 2000 in which there have been no new entries in the defendant's criminal history are those when he was in custody serving sentences. [14] In 2000, he was convicted of (sometimes multiple counts of) offensive language, intimidate police officer, larceny, AOABH, contravene apprehended domestic violence order ("CADVO"), and possess offensive weapon or implement. In 2001, the conviction entries are for (sometimes more than one count of) AOABH, assault, break enter with intent to steal, enter enclosed lands, having custody of a knife in a public place, larceny, and damaging property. The defendant failed to appear in relation to most of these matters, and was convicted in his absence, with warrants issued. In 2002, sentences of imprisonment were imposed, after the various 2001 warrants were executed. There were additionally a number of fresh offences, of two counts of CADVO, enter enclosed lands, and remain on prescribed premises. Sentences of imprisonment were imposed for the more serious matters. [15] In the few months of 2003 in which the defendant was at liberty, he was convicted of larceny and returned to prison to serve a sentence. He spent most of 2004 in custody, for offences of armed with intent, and destruction of property. He was convicted ex parte of larceny, with sentence not imposed until 2006. [16] The defendant was arrested and charged on 2 September 2005 with two counts of sexual intercourse without consent. He was ultimately convicted and sentenced for one count to a term of imprisonment for 5 years and 10 months, with a non-parole period of 4 years and 3 months. An appeal to the Court of Criminal Appeal against the asserted severity of the sentence was unsuccessful. [17] The victim of the sexual assault was a young woman whom the defendant had met the day before the offending conduct. The defendant had been drinking alcohol prior to assaulting his victim. [18] The defendant was released to parole on 31 December 2011. By early March 2012, he had been charged with a high range drink driving offence - an offence for which he received a fine and a disqualification from driving the following month. [19] In August of that year, he was charged with stalking and intimidation, assault, damaging property, and CADVO, all being domestic violence offences. The defendant was again imprisoned. One week after his release from prison from serving the sentences imposed for those offences, the defendant was again charged with high range PCA, driving whilst disqualified, taking and driving a conveyance, and entering a building with intent. He spent much of 2013 in custody serving the sentences imposed upon him for those offences. [20] Upon release later that year, he was charged with another offence of high range PCA, and an associated charge of driving whilst disqualified. He failed to appear in October 2013 and was convicted ex parte, with warrants issuing for his arrest. When the warrants were executed later in 2013, the defendant was gaoled, for the whole of 2014. Prison offences of possessing a mobile phone or SIM card were dealt with before Cessnock Local Court that year, with concurrent gaol terms imposed. [21] On release in 2015 the defendant was charged with AOABH and CADVO, for which he served further terms of imprisonment. Both offences were domestic violence offences. Less than a fortnight after his release from serving those sentences, the defendant was back before the Local Court at Casino in relation to charges of offensive manner, resisting a police officer, and intimidating a police officer. He was later convicted ex parte for the two more serious offences, receiving further terms of imprisonment by way of sentence. [22] On 16 November 2015, the defendant was charged with the index offence of recklessly causing grievous bodily harm ("GBH"), together with related charges of AOABH, CADVO, and damaging property. The victim was his partner (and the subject of some of the earlier assaults in the defendant's record), Misty Roberts. On an occasion between 5 and 11 November 2015 the defendant bit Ms Roberts, leaving a lesion and swelling (the AOABH). On another occasion in the same period he struck Ms Roberts to the head, knocking a tooth from her mouth and causing facial bruising. [23] The defendant was sentenced by Wells SC DCJ at the Lismore Local Court on 2 December 2016 to terms of imprisonment for AOABH and reckless GBH, with nine months imposed for the former, and two years and six months for the latter. A NPP of 18 months was fixed for the more serious offence. That is the sentence that expires on Saturday. There was a s10A Crimes (Sentencing Procedure) Act 1999 (NSW) conviction for the related CADVO offence. [24] The sentencing judge described these offences as "towards the lower end of objective seriousness". She noted that the defendant's account was that he was so intoxicated he could recall nothing of them. Referring to the defendant's "fairly dreadful record" her Honour observed that violence, "is all too much of a habit for him, to be violent towards his partners and, furthermore, to show no remorse or shame for what he has done". [25] Her Honour concluded that the defendant was at high risk of reoffending.

[3]

Nature of Offending

Counsel for the defendant properly conceded that the defendant had a lengthy criminal history dating back to when he a juvenile and that a significant proportion of his offending behaviour related to offences of violence. He emphasised entries in the offending history relating to assault and AOABH. There had been a prevalence of such offences since the late 1990s, which typically occurred in the circumstances of a domestic relationship.
The defendant has committed violent offences on no less than 11 separate occasions since 1992. That record is, notwithstanding the limited period of time he has spent in the community, owing to the vast amount of time he has been in prison.
His victims are frequently vulnerable female partners. His offences have often involved punches or strikes to the head region (including uppercut punches), kicks to the head and body whilst the victim is on the ground and sometimes involved the threatened use of weapons. The offences are often committed whilst he is enraged and disinhibited by alcohol.
The defendant's offences of violence are not solely limited to females. He has also committed offences of violence against other persons he becomes aggrieved with, typically being staff who refuse to serve him alcohol or police responding to an incident involving him.
I accept the submission of the defendant that less weight should be placed on the offence of carnal knowledge in the assessment of risk for the purposes of s 5B(d). The offence occurred when the defendant was a juvenile and involved a consensual act of sexual intercourse, which was not occasioned by alcohol abuse or violence. A custodial sentence was not imposed.
Attention may be drawn to the defendant's offending in 2000, with respect to a victim ("V2"), which is described in the chronology produced by the State as follows: Defendant commits common assault, AOBH and two counts of contravene AVO on V2 (at Lismore). Punched V2 to face and kicked her whilst she was on ground. Her elbows and knees lacerated from her rolling on the ground in an attempt to get away. Suffered very swollen and blackened eyes and numerous abrasions and reported blacking out at one point. Their 2-year old son ran to get help from V2's father. Then assaulted V2's father throwing rock at him. Sentenced to 6-months imprisonment fixed.
It is also true, as submitted by the defendant, that the defendant has not committed a "serious sex offence" for the purposes of the Act. However something more should be said about the defendant's 2005 conviction for sexual assault.
On 2 September 2005, the defendant committed one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The victim met the defendant at a gathering on 1 September 2005. They travelled as part of a group to a house in Ballina where they consumed alcohol. The following day the defendant drove the victim back to Lismore. At one point she went to a public toilet and the defendant approached and committed an act of digital vaginal penetration on her. She struggled with him and fell to the floor, striking her head as she did so. The defendant was arrested that same day.
On 24 July 2007, Dr Nelson prepared a psychological report for use in sentencing for the sexual assault offence. The defendant reported that at about the age of 24 years (in about 1996) he commenced using methamphetamine in addition to alcohol and cannabis abuse. He was injecting methamphetamine in his mid-twenties. His methamphetamine use culminated in an admission to the Richmond Clinic in a psychotic state on two occasions, the last being in June 2005 after which he was the subject of a community treatment order.
In sentencing on 8 August 2007 Judge Norrish referred to the evidence given by his mother as to her ongoing support and the assistance she has given him in the past, including her belief that his attitude had recently changed in relation to his past abuse of alcohol.
His Honour also had regard to the expert opinion of Dr Nelson, namely that the defendant displayed two severe personality disorders being borderline and paranoid. Persons with such disorders tended to be highly disordered with profoundly unstable relationships and moods, experienced excessive suspicion of others and had a tendency to be defensive while maintaining delusional beliefs of superiority. There was also some indicators of depression. Dr Nelson's principal diagnosis was that of disordered personality with borderline paranoid depressive and dependent features. The defendant required treatment for his personality disorder and drug and alcohol rehabilitation.
Dr Nelson also diagnosed the defendant with post-traumatic stress disorder concerning his childhood sexual abuse. However, Judge Norrish did not make a positive finding in this respect.
As observed by Wilson J, Norrish DCJ sentenced the defendant for the sexual intercourse without consent to 5 years and 10 months imprisonment to commence 1 March 2006 (following the expiration of a larceny sentence) with a non-parole period of 4 years and 3 months.
It follows from that analysis, I accept the submission of the State that, although the defendant's offence of sexual intercourse without consent, committed in 2005 contrary to s 61I of the Crimes Act, it did not constitute a "serious sex offence". It remains, however, a serious matter. Although about 13 years has passed since its commission, the defendant has been in custody for the majority of that time.
I will return to the opinions of Drs Seidler and Samuels regarding the sexual offence later in this judgment. I accept the submission of the State that the weight that should be attributed to the sexual assault offence in any assessment of future risk should not be diminished by virtue of the offence not having been captured by the definition of a "serious sex offence" having regard to the provisions s 5(1)(a) of the Act.
I return to the contention of the defendant that the injuries, the subject of the index offence did not amount to "grievous bodily harm".
That submission was not developed and it is not entirely clear whether the defendant was, by the submission, traversing his conviction for that offence. If that is the approach taken then it may not be accepted.
The evidence of the defendant's plea of guilty, as well as the acceptance of that plea by Wells SC DCJ, of itself, proves the grievous bodily harm element for the purposes of s 35(2) of the Crimes Act.
The defendant's plea of guilty to that offence constituted an admission by him of all necessary legal ingredients for the same (including the essential facts necessary to satisfy the elements): Maxwell at 510-511 (per Dawson and McHugh JJ). That is so, irrespective of that specified in the agreed statement of facts tended in the sentencing proceedings before Wells SC DCJ.
The fact of the defendant's plea of guilty can be taken as evidence of an admission against interest by him of the facts taken to constitute that offence: Bennett v Western Australia (2012) 223 A Crim R 419; [2012] WASCA 70 at [49] (per Martin CJ).
As previously mentioned, a sentencing Court does not proceed to sentence an offender without first accepting a plea of guilty. Such acceptance amounts to the Court's own determination of a person's guilt (frequently referred to as the person's "conviction" for the offence): Maxwell at 507; Perejmibida at [26]-[27]; HA v DPP.
The Court's determination of guilt forms part of its judgment. That determination or acceptance of guilt is indicated by its formal entry of the plea upon the record or in some other manner such as by the passing of sentence: Maxwell at 509 (per Dawson and McHugh JJ) and at 529-30 (per Gaudron and Gummow JJ); HA v DPP at [10] (per Dunford J).
Her Honour Wells SC DCJ, in imposing sentence on the defendant, can be taken to have accepted the plea of guilty. That constituted her Honour's own determination of his guilt with respect to each necessary element. Moreover, the finding by her Honour that the injury and was not at the worst end of the scale and fell towards the lower end of objective seriousness for this offence, implicitly involved a finding that the injury amounted to a grievous bodily harm.
In any event, there is insufficient basis on the material before the Court to doubt that the injury sustained by V5 amounted to grievous bodily harm on the basis of the agreed statement of facts when taken in conjunction with the defendant's plea of guilty (and the acceptance of same by Wells SC DCJ).
The term "grievous bodily harm" is defined in s 4 to include, inter alia, relevantly, "any permanent or serious disfiguring of the person".
In Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 ("Haoui"), a conviction appeal for an offence of dangerous driving causing grievous bodily harm, Beazley JA held: [141] In my opinion, the jury verdict that Mr Mousselamani suffered "grievous bodily harm" was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was 'red' for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short.
On the other hand, Johnston J (with whom McCallum J agreed), with respect to this issue, held: [159] With respect, I do not agree with the conclusion of Beazley JA upholding Ground 3 concerning the element of grievous bodily harm. In my view, the evidence revealed that Mr Mousselamani suffered a significant injury which required significant surgery. [160] His Honour directed the jury that the words grievous bodily harm "do not require that the injuries are a permanent one" or "that the consequences of the injury are long lasting, or life threatening" but that "they do require that the injury is a really serious one" (SU17). No challenge was made on appeal to the correctness of this direction, which accords with authority. [161] I agree with the characterisation of the learned sentencing judge in his remarks on sentence that the injuries "amounted to grievous bodily harm but very much at the low end of that scale" (ROS2). [162] There is no bright-line test for determining whether a particular injury or injuries constitute grievous bodily harm. In my view, it has not been demonstrated that the finding of the jury that the injuries constituted grievous bodily harm is unreasonable or cannot be supported, having regard to the evidence: s.6(1) Criminal Appeal Act 1912. It was open to the jury to be satisfied beyond reasonable doubt that the element of grievous bodily harm had been established in this case... I would reject [unreasonable verdict ground].
Swan v R [2016] NSWCCA 79 ("Swan") concerned an appeal against conviction. The appellant was convicted after trial for offences including that against s 35(1) of the Crimes Act.
Garling J (with whom R A Hulme agreed) summarised at [71] the principles relevant to determining whether an injury constitutes "grievous bodily harm" as: (a) it is to be interpreted according to its natural and ordinary meaning; (b) on its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury; (c) there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree; (d) not every injury is capable of amounting to grievous bodily harm; (e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.
The grievous bodily harm injury in Swan was said to be a fracture to the transverse process of the L3 vertebra, which involved a fracture to a bone which was part of a lumbar vertebra.
Garling J considered such an injury might be capable of amounting to grievous bodily harm (at [74]). However, in the circumstances of that case, it was not reasonably open to the jury to find, beyond reasonable doubt, that this element was proven. Wilson J dissented, finding it was reasonably open to find the injury amounted to grievous bodily harm, albeit very much at the lower end of the range.
Swan and Haomi both concerned appeals against conviction following trial. The appellants were not taken to have admitted the essential ingredients to the offence by virtue of their pleas of not guilty.
Nothing in the principles stated in those cases should result in any different conclusion in this respect.
For completeness I accept the submission of the State that the injury sustained by V5, as described in this judgment (as set out in the agreed statement of facts), may properly be described as really serious bodily injury: Director of Public Prosecutions v Smith [1961] AC 290 at 334 (per Viscount Kilmuir LC); R v Perks (1986) 41 SASR 355 (per King CJ).
That said, the injury occasioned by the index offence was clearly at the lower range of seriousness for the index offence (as found by Wells SC DCJ, who also took into account the offence was not planned or premeditated). It nonetheless remained a serious offence.
Before leaving the index offence, it is instructive to refer to some of the other remarks on sentence by Wells SC DCJ in that respect. Her Honour stated that it was "too much of a habit for him to be violent towards his partners and, furthermore, to not show any remorse or shame for what he has done". He had not completed any of his residential rehabilitation programs, with respect to his difficulties with alcohol, cannabis, and violence. There was a risk of "institutionalisation". The defendant had shown little, if any, regard for apprehended violence orders or content conditional liberty orders by courts.
Lastly, before turning to the next consideration under s 9(3), the defendant challenged the evidence of Dr Seidler that there had been an escalation in offences of assault or assault occasioning actual bodily harm relating to domestic violence. The defendant submitted there is consistency of these offences but I consider that Dr Seidler was entitled to point to the offences against V5 in 2015, as representing an escalation, by reference to the index offence.

[4]

Parole and Interim Supervision Order

The discussion by Wilson J in King No 1, provides a useful discussion as to the defendant's conduct since his sentencing by Wells SC DCJ. Those observations, which I adopt, were as follows at [26]-[33]: [26] The defendant was initially released to parole on 16 September 2017, but returned to custody less than a fortnight later after his parole was revoked. The defendant had failed on release to attend the Lismore Community Corrections office as directed, and had failed to live at approved accommodation. His whereabouts were not known to the authorities. He went back to gaol on 4 October 2017. [27] The defendant was again released to parole on 18 January 2018, and his conduct since being released has been less than satisfactory. Although directed to reside with his sister in Lismore, and to have no contact with Ms Roberts or to go to Coffs Harbour where she lives, the defendant left his sister's home after a week or so, and was reported as having been seen by police in Coffs Harbour, with Ms Roberts, drunk. The defendant was warned about the consequences of failing to adhere to the terms of his parole but not, on this occasion, breached. [28] By 22 February 2018, the parole authority considered it necessary to fit the defendant with an electronic ankle tag, so as to more closely monitor his movements. This monitoring exposed further breaches by the defendant of conditions of parole, including breaching curfew, associating with Ms Roberts, and drinking. His parole was revoked for a second time on 28 March 2018. On his return to custody the defendant acknowledged that, when in the community, he had been drinking six litres of cask wine and beer each day. [29] On 31 May 2018, the defendant was released to parole for a third time. A significant condition of the grant of parole was that the defendant reside at Maayu Mali in Moree, a full-time residential rehabilitation service. He participated in the 3 month programme offered by Maayu Mali, but he was not regarded as compliant by staff. He was reported by staff to be manipulative, disruptive, and evasive of responsibilities within the residence. He repeatedly asked to be discharged so that he could go to Coffs Harbour and resume his relationship with Ms Roberts. [30] He was considered to be attending the programme only as a means of securing his release from gaol, rather than because of any real commitment to change. Indeed, in an interview with Community Corrections officers in July 2018, the defendant acknowledged a daily pattern of drinking all afternoon and evening, and then sleeping through until late morning. He said that he could not get through a day without drinking, an addiction he blamed on childhood trauma. [31] The defendant obtained counselling through the St Vincent de Paul Society, and continued with it between June and (at least) August 2018. The defendant tendered a positive report from Donna Broughton, a drug and alcohol counsellor, who reported "To Whom it May Concern" on 2 August 2018 that the defendant had seen her weekly from 5 June 2018, and was working "tirelessly" to process the "trauma and mistakes of the past". She thought he had made progress in managing his emotions. Ms Broughton suggested that for "mental health growth" and to remain substance free, the defendant should be permitted to leave Lismore and reside in Coffs Harbour, where he has organised support systems for himself and Ms Roberts. [32] It is not clear whether Ms Broughton is aware of the defendant's heavy daily drinking, or of the role that alcohol has played in his previous assaults upon Ms Roberts. [33] Despite receiving a final warning of ejection from the Maayu Mali programme only a fortnight before its expiration, the defendant managed to complete it, and was discharged on 24 August 2018. He had not tested positive for any illicit drug during his three months on the programme, and had undertaken some trauma counselling. Whilst an anti-depressant had been prescribed to the defendant, his compliance with the medication regime was not known.
Some further observations should be made regarding the defendant's conduct during and after the period he attended the Maayu Mali in Moree: 1. On 15 August 2018, during a meeting with Moree Community Corrections, the defendant presented "in a better frame of mind", indicated he was now accepting of the processes of parole and admitted he was anxious about going into the community. He stated his relationship with V5 "will be different, as neither of them are drinking any more" and rejected the possibility of him attending Namatajira Haven with respect to alcohol rehabilitation for approximately 3 weeks stating he needed to "start my life". 2. On 24 August 2018, the defendant completed the residential rehabilitation program at Maayu Mali and was directed by Community Corrections to reside with his brother, Mr Greg King, in Lismore pursuant to his parole conditions. He was fitted with an electronic monitoring device at this time, with a restriction zone enacted for Coffs Harbour, and directed to abstain from alcohol. 3. On 28 August 2018, Community Corrections directed the defendant not to have face to face contact with V5. 4. On 4 September 2018, the defendant advised Community Corrections his main goal was to be back in Coffs Harbour with V5 as he has support services set up for him there and that "he has learnt from his past and knows what he has to change".
The State made a submission regarding matters relevant to s 9(3)(e2) and (f). That submission was not in dispute, save for one aspect regarding conduct of the accused relating to the entry for 30 November 2018 in Annexure B to this judgment. I will return separately to that question but otherwise extract with my acceptance the submission of the State, in this respect, as follows: 43. The defendant has a poor history of complying with conditional release most particularly conditions as to reporting, non-consumption of alcohol and nonassociation. He frequently fails to report shortly after his release and quickly lapses back into alcohol abuse and reoffending. Non-parole periods were fixed on numerous occasions in an unsuccessful attempt to facilitate his rehabilitation in the community. As recently as March 2018 his parole was revoked for non-compliance, including him associating with the victim of his Index Offence, disregarding curfew and not abstaining from alcohol. 44. Although he succeeded in completing the 3-month Maayu Mali Residential Rehabilitation programme, his participation in the same was described by some to be problematic at times such that he was issued warning notices. It is particularly concerning that shortly after ISO imposed, engaged in verbal altercation with victim of Index Offence and then continued to behave aggressively in the presence of police. 45. Since mid-1995 the defendant has spent approximately 5 out of 23 years out of custody, namely: Period out of custody Duration out of custody (approx.) 25 Feb to 25 May 1998 3 months 22 Jan to 7 Aug 1999 6 ½ months 6 Jan to 18 Apr 2000 3 months Nov 2000 to Sep 2001 11 months Oct to Nov 2001 1 month 27 Apr to 10 Oct 2002 6 months 10 Jul to 11 Aug 2003 1 month 7 Feb to 20 Feb 2004 ½ month 20 Nov to 23 Dec 2004 1 month 29 Mar to 2 Sep 2005 5 ½ months 31 Dec 2011 to 5 Oct 2012 10 months 4 to 10 Dec 2012 1-week 7 to 19 Sept 2013 ½ month 12 Jul to 10 Sep 2014 2 months 21 Jan to 7 Mar 2014 1 ½ months 6 Sep to 16 Nov 2014 2 ½ months 16 Sep to 4 Oct 2017 3 weeks 18 Jan to 28 Mar 2018 2 months Total Approx. 56 months

[5]

On 17 September 2018, at Lismore, the defendant was arrested by New South Wales Police and charged with committing a common assault on V5. That charge was withdrawn and dismissed at the Lismore local Court. An AVO was made in mandatory terms for V5's protection but permitted contact.
The Court received evidence as to the circumstances giving rise to those charges, which were accurately set out in the following submission by the State: 16. Police allege the defendant and Ms Roberts were together in a park area near the Lismore Transit Depot on 17 September 2018. The defendant had consumed alcohol. He argued with Ms Roberts over her wanting to leave and him wanting her to accompany him as he socialised and continued to drink alcohol. Both commenced screaming at one another. A member of the public witnessed the defendant allegedly pushing Ms Roberts during the argument (which is the subject of the assault charge). 17. In a written statement Plain Clothes Senior Constable (SC) Ricard Troncoso alleges: (1) SC Troncoso attended the park (following police being called by member(s) of the public). (2) upon arrival multiple persons at the scene pointed to the defendant. (3) when SC Troncoso engaged with the defendant, the defendant was verbally abusive stating "What the fuck to you want. I did nothing. Fuck off", "Well you can get fucked", "Yeah, there is nothing to tell you cause its between my missus and I so you can get fucked" and "I know who I am, I don't have to tell yous. I fucking come to this place, my missus is down town and now I'm fucking getting all up on yous putting shit up on heer [sic] so fuck off I don't have to explain myself to yous". (4) the defendant denied doing anything to Ms Roberts at the scene. (5) SC Troncoso smelt alcohol on the defendant's breath and assessed him to be "slightly affected by alcohol". (6) at one point the defendant spoke to Ms Roberts at the scene saying "…I never assaulted you, Fuck!" to which Ms Roberts said "That's the last shit know, its game over". The defendant tensed his arm, made a fist with his hand and raised his armed above his head. (7) after being asked to get into the police van the defendant raised his voice and hand, making fists, and screamed "I'm fucking, you better ask the questions mate" and "Ask her mate!". (8) SC Troncoso spoke to Ms Roberts at the scene, who stated that the defendant had pushed her describing a "little shove that's all" and demonstrated pushing on the arm. 18. SC Troncoso was wearing a body worn camera at the scene and filmed his interaction with the defendant and Ms Roberts. 19. A member of the public, W20, filmed footage of an altercation between a male and female at the scene prior to the police's arrival. [Footnotes omitted.]
The State submitted that the Court would not positively find that the defendant assaulted V5 on17 September 2018. The Court would be satisfied, at the very least, it was contended, that the defendant was engaged in a verbal altercation with V5 on that occasion. When engaged by police at the scene, the defendant's breath smelt of alcohol and he appeared moderately affected by alcohol. He was also aggressive and verbally abusive to the police officer and V5.
It was also submitted that those facts are relevant to the determination of the extended supervision order application. That incident occurred shortly after his completion of alcohol rehabilitation, and within days of an interim supervision order being made. It evidences his propensity for aggression, it was submitted, and the difficult dynamics in his relationship with V5.
The defendant submitted that, in the absence of sworn evidence from police officers, that evidence has little weight. The defendant disputed the allegations and, without the evidence having been tested in the normal way, it would be unfair to the defendant to place too much weight upon the evidence.
I accept the submission of the defendant that considerable caution needs to be exercised in the use of this evidence.
No conclusion may be reached that the defendant assaulted V5 or engaged in any other criminal conduct in relation to that incident. However, the episode does underline just how contact with V5 by the defendant at the present time may be problematic for both the defendant and V5 and how such engagement possibly escalates risk factors for him.
His explanation that the identification of the presence of alcohol was a result of having mixed with person consuming alcohol was not terribly convincing particularly given his history of alcohol abuse (even if the subject of more recent improvements). The independent experts considered this event was relevant to the defendant's overall risk of offending. I will give it some, but modest, weight in assessing such risks.

[6]

Treatment and Rehabilitation Programs

On 13 January 2010, the defendant declined to be assessed for participation in the Custody-based Intensive Treatment program ("CUBIT") for sex offenders.
On 27 May 2011, the defendant declined to be referred for eligibility to participate in the Violent Offender Therapeutic Program ("VOTP").
As at 3 January 2018, the defendant reportedly declined the offer to participate in an Intensive Drug and Alcohol Treatment Program as he did not wish to "move to a metro gaol".
Whilst in custody the defendant was assessed suitable for EQUIPS Foundation, EQUIPS Addiction and EQUIPS Domestic Abuse programs. The defendant refused to be referred to those programs on three occasions as he did not see any benefit for himself in attending.
The State submitted, correctly in my view, that the defendant's engagement in the Maayu Mali was problematic. Whilst limited weight may be placed upon the statement made by the defendant to Community Corrections as to his violence, namely, "it does take two though" on 17 July 2018, it does, however, raise questions about the genuineness of his engagement and insight into his propensity for violence (I will return to these questions in discussing the assessment of that independent experts).
The defendant has spent much of 2018 in restrictive environments, whether that be in custody (March to late May 2018), in a rehabilitation facility (June to August) or in a supervised residential facility in Campbelltown (September to present). Since his move to Campbelltown he has not come to the adverse attention of police.
As to the last of those residential arrangements, the following may be noted: 1. On 21 September 2018, the defendant was directed to reside at the Integrated Support Centre (ISC) at Campbelltown, Sydney. On admission he was prescribed antidepressant medication. 2. On 24 September 2018, the defendant reported to the ESO Team that he wanted to reside in Coffs Harbour where V5 was living or in Lismore where his family was living. He did not understand why he was subject to supervision given that he had successfully completed a residential rehabilitation program in Moree. 3. On 30 September 2018, the defendant stated in an interview with the ESO Team he wanted to resume his relationship with V5 in the Lismore area and conceded that V5 herself struggled with alcohol issues (which the ESO Team explained might put him in a high-risk situation). 4. On 10 October 2018, the defendant advised that the Local Court had varied his bail conditions to remove the no-contact prohibition for V5. He now wished to relocate to Lismore or Coffs Harbour to resume their relationship.
On 11 October 2018, during an interview with the ESO Team, the defendant was noted to be attending Alcoholics Anonymous (AA) meetings each Friday and Saturday and reported benefiting from the sessions. The defendant also denied drinking on 17 September 2018 and claimed "…he was with a lot of 'drinkers' that he had known and thus smelt of alcohol" (the State submitted the Court would be very circumspect about this claim).
That same day the ESO Team discussed with the defendant him undertaking a domestic violence and anger management program with Tharawal Aboriginal Corporation and him engaging with a psychologist/social worker at that service with respect to domestic violence, post-traumatic stress disorder and childhood abuse. Discussion was also had about the direction in place prohibiting him contact with V5. The defendant was advised that, if an extended supervision order is made he would not be permitted contact with V5 for at least 18 months (at which time that prohibition would be reviewed). Discussion was also had regarding the defendant finding suitable alternative accommodation from that of the ISC.
On 24 October 2018, the defendant reported he was "deriving great benefit from his participation in the Tharawal program" but he did not want to settle in Sydney and wanted to return to his former area.
On 2 November 2018, the defendant reported he was engaging with a psychologist and counsellor with Tharawal Aboriginal Corporation and discussing his childhood and other issues. He was also attending a men's group with that service. The defendant then stated he "wanted to get rid of those counsellors" as he indicated that they were not meeting his expectations and he wanted to speak to his psychologist on a daily basis.
On 6 November 2018, the ESO Team was notified by the defendant's counsellor at the Tharawal Aboriginal Corporation that the defendant had signed a document withdrawing consent for its staff to contact the ESO Team staff with information as to his engagement with herself and the psychologist. The ESO Team determined it would attempt to work with the defendant to change his position on this.
On 9 November 2018, the defendant reported he would be seeking accommodation in Lismore, whilst attending Lismore for Court with respect to his recent criminal charge, and would be moving back to the area rather than looking for accommodation in Sydney.

[7]

Risk Assessment Report

The Court has before it a Risk Assessment Report prepared by Ms Amanda Pilley dated 17 April 2018, endorsed by Dr Cherice Cieplucha, Chief Foresic Psychologist with the Risk Management Programs Unit of Corrective Services New South Wales. Ms Pilley is employed as a Senior Psychologist with the High-Intensity Program Unit: Violent Offenders Therapeutic Program. Ms Pilley conducted an interview with the defendant on 5 April 2018 via audio-visual link.
Wilson J in King No 1, provided a summary and analysis of this report which, with respect, is correct. Part of that judgment, which substantially represented a summary of the report, is set out below (at [36]-[62]): Psychosocial History [36] The defendant is a 46 year old Aboriginal man, with five siblings. The family relocated from Sydney to Lismore when the defendant was around 8 years of age. Whilst the defendant reported a close relationship with each of his siblings and parents throughout childhood, these connections dissipated into adulthood, such that his mother is considered to be his only current support. [37] The defendant reported a history of sexual abuse at the hands of an extended family member over a three year period from the age of 8, which left him feeling "violated' and "isolated". He felt unable to disclose the abuse to anyone at the time and commenced use of alcohol and drugs as a coping mechanism to deal with associated symptoms of Post-Traumatic Stress Disorder ("PTSD"). [38] The defendant has one son who is now 18 years old, with whom he has minimal contact. The defendant also disclosed that an ex-partner had previously suffered a third-trimester miscarriage - an event which had a significant impact on him, leading to increased substance abuse and the subsequent breakdown of that relationship. [39] The defendant left High School at the completion of Year 9, after being suspended for verbally abusing and pushing the Vice Principal. It is reported that the six months prior to this incident had been punctuated by incidents of violence and altercations with other students. [40] He has a sporadic and limited employment history, including periods of work as a tyre fitter and in a saw mill. For the last 15 years, the defendant has been in receipt of unemployment benefits. History of Violence and Sexual Violence [41] Ms Pilley referred to the defendant's extensive criminal history, dating from the age of 15 with a total of 23 convictions for violent offences. His offending has occurred primarily, although not exclusively, in the context of domestic relationships, and is generally coupled with abuse of alcohol. [42] The defendant's first offence was a sexual offence of carnal knowledge, at the age of 14. He was twice arrested for obscene exposure in 1988 and 1990. [43] In 2005, the defendant was charged with two counts of sexual intercourse without consent, pleading guilty to the first count - a plea accepted in full discharge of the indictment. [44] Ms Pilley reports that the defendant demonstrated only superficial acceptance of responsibility for his offending behaviour. Whilst he acknowledged his alcohol abuse as a coping mechanism to alleviate stress, he minimised its contribution to his offending conduct and blamed the victim. The defendant displayed limited insight into strategies he could adopt to prevent further offending, violence and substance abuse, and Ms Pilley considered that: "It is likely the attitudes underpinning his offending are so natural to him that he does not recognise how discordant they are with general societal views and lacks the motivation to challenge and change those attitudes." Response to Community and Institutional Supervision [45] Ms Pilley assessed the defendant's response to community supervision as "poor", characterised by the repeated breach of court orders due to re-offending, failure to report to authorities, failure to abstain from alcohol, and an inability to obey reasonable direction from a supervising officer to reside at an approved address or attend a scheduled programme. [46] Ms Pilley made reference to multiple Parole reports, including one dated November 2016, that repeatedly describe the defendant's behaviour as unacceptable for release into the community and his generally "poor" attitude towards supervision. Most recently, after being released on parole on 18 January 2018, the defendant was questioned within 11 days due to disengagement with services and non-compliance with conditions, including a repeated failure to charge his electronic monitoring device at the allocated time, a failure to attend appointments, disregard for curfew hours, suspicions in relation to the consumption of alcohol and failure to reside at an approved premises. When questioned about this conduct, the defendant maintained that his behaviour had improved, emphasising that he, "only breached, it's not like I re-offended." [47] Ms Pilley also reviewed the defendant's OIMS notes, which demonstrated an extensive history of non-compliance with correctional centre direction and routine, amassing 50 offences while in custody including possession of drugs and drug implements, smoking, disobeying directions, possession of an offensive weapon or instrument, fighting, failure of prescribed urinalysis, intimidation, unlawful receipt of artwork, and abusive language. The defendant has been charged by police whilst in custody for offences of unlawful possession of offensive weapon (2000), possession of a mobile phone/sim card (2014), and destroy or damage property (2015). [48] The defendant has reportedly been segregated on multiple occasions and regressed in classification as a result of offences in custody, poor or manipulative behaviour. In 2008, he was implicated in a major disturbance at the Lithgow Correctional Centre. He also received a verbal warning from the Corrections Intelligence Group in July 2009 in relation to disruptive activities and threatening and aggressive conduct towards staff, and has been involved in the Security Threat Group Intervention Programme. Psychiatric and Substance Abuse [49] The defendant has been admitted to Richmond Clinic in Lismore for treatment of schizophrenia, with his latest admission in 2005. Ms Pilley also referred to a psychologist's report from Mr Nelson, dated 24 July 2007, which indicated that the defendant suffered from a disordered personality with borderline, paranoid, depressive and dependent features. As noted at [37], the defendant also has a diagnosis of PTSD as a result of childhood sexual abuse. [50] To Ms Pilley, the defendant detailed symptoms of depression and anxiety, hopelessness and helplessness, sadness, social isolation, diminished interest in activities, lethargy, irritability, restlessness and poor concentration. He indicated his concerns that others were trying to harm him and that he was being watched. Ms Pilley noted that such comments could represent indicators of delusional ideation, but that they are more likely explanatory as a manifestation of his PTSD, his previous sexual abuse, and contextual factors including being the victim of a number of assaults and a stabbing whilst in custody on 3 February 2017. [51] The defendant reported a desire to talk about his mental health and past trauma to alleviate his current symptoms, but has had no recent contact with mental health staff or professionals and is not prescribed any medication. Substance Abuse [52] The defendant reported a long history of substance and alcohol abuse, commencing at the age of 12. He described a tendency to binge drink over a period of several days to the point of becoming unconscious, then taking a break for a few days, before again resuming his alcohol consumption. A number of his past charges and convictions have been related either directly or indirectly to substance abuse, including the most recent offence, where he reported having drunk for approximately six hours prior to the commission of the offence. [53] The defendant disclosed the periodic use of cannabis since the age of 16. He reported an instance of experimental use of methamphetamines, although after it triggered a psychotic episode, he reportedly ceased to use the substance. Involvement in Offender Programmes [54] Ms Pilley reported that the defendant has shown minimal motivation to engage with rehabilitation services. He entered Oolong House, an in-house rehabilitation programme, on 15 July 2003 but, after being allowed leave to attend a family funeral, did not return. In 1998, he was reported to have attended two sessions of Alcoholics Anonymous and two session of anti-violence group counselling, but to have shown poor commitment to both programmes. [55] Whilst in custody, the defendant attended counselling sessions with Alcohol and Other Drug services attached to the Security Threat Group Intervention Programme in 2011; however he refused to engage with the process. [56] The defendant has been declared a suitable candidate for the EQUIPS Foundation, EQUIPS Addiction and EQUIPS Domestic Abuse programmes, but refused to be referred to these programmes on three occasions in 2017, reporting that he did not see any benefit in attending. [57] The defendant was assessed as suitable for the Security Threat Group Intervention Programme (STG-IP) on 7 April 2010 and, despite an initial refusal to participate, completed it on 2 December 2011. There is no information, however, to suggest that he attended any therapeutic programmes connected with the programme. [58] Similarly, the defendant refused consent for referral to both the Custody-Based Intensive Treatment Programme (CUBIT) in 2010, and the Violent Offenders Therapeutic Programme in 2011. Risk Assessment [59] The defendant was assessed using the Level of Service Inventory - Revised actuarial risk assessment tool ("LSI - R") in March 2018, as falling within the high risk category for general and violent offending. [60] Adopting the Violence Risk Scale (VRS) conceptual actuarial risk assessment method, the defendant was assessed as falling within the high risk range for future violent offending, with the following criminogenic factors assessed as 'high": pro-criminal attitudes and values, interpersonal aggression and relationship instability, violence during institutionalisation, substance abuse, released to high risk situation, impulsivity and (non) compliance with supervision. [61] Using the Static Risk Factors Actuarial Assessment - Sex Offending (STATIC-99R), the defendant was assessed as being in the high risk category, or "well above average risk" for sexual recidivism, relative to other male sexual offenders. The defendant was assessed using the Dynamic Risk Factors Actuarial Assessment - Sexual Offending (STABLE-2007) as having a high density of criminogenic needs relative to other male sexual offenders. Combining the two assessments to generate a "composite assessment risk/needs", the defendant was determined to have a risk profile of "well above average risk". [62] Ms Pilley concluded that in order to adapt to a law-abiding lifestyle, the defendant will need to "abstain from alcohol and change the way he thinks and behaves", including avoiding old associates, locations and people that are high-risk and associated with substance abuse, including family members. Ms Pilley considered that the defendant would benefit from an extended period of supervision and engagement with Community Corrections, to facilitate access to community based employment, mental health and rehabilitation programmes.

[9]

Opinion as to the defendant's functioning, insight and risk of violent offending

The defendant reported to Dr Seidler that he first consumed alcohol when he was 9 years of age and drank independently from 12 years of age. His use of alcohol from that point quickly became heavy and problematic (at [50]). Whilst alcohol use is the most significant substance risk issue, the defendant also reported using crystal methamphetamines in 2017 and there is an appreciable risk he might use that type of substance again in the future.
The defendant's history provides little confidence that he can maintain an alcohol and offence-free lifestyle in the community. Nor did he present with a well-developed plan to avoid offending other than him making generalised comments about how he would not reoffend.
The defendant acknowledged experiencing difficulties in the Maayu Mali although he reported that he still attained some benefit from it.
The defendant's report to Dr Seidler of his sex offending in 2005 differed significantly to the facts admitted and relied on in sentencing. The defendant's report of that offending is described by Dr Seidler as follows: [The defendant] acknowledged his role in this offence but he claimed that what occurred was ostensibly consensual. [The defendant] claimed to have met the victim the day or so before the offence and he described this woman as having been a heavy user of crystal methamphetamines. [The defendant] also claimed that the victim had been quite aggressively coming on to him, which he had resisted. However, for reasons that [the defendant] could not account for, he stated that he 'grabbed' the victim 'on the privates' and kissed her after she had apparently done the same to him after following him into the toilet near a park. [The defendant] stated that he needed to go to the toilet and that the victim followed him in and he did not know it was a female toilet.
In relation to the defendant's level of insight for the recklessly causing grievous bodily harm offence, Dr Seidler reported: I asked [the defendant] to discuss his index violent offence against his current partner. He described this as having occurred in the context of similar relational stressors as outlined above. In large part, [the defendant] blamed the victim for his behaviour, referring to her insecurities, controlling behaviour, jealousy and "nagging", as well as her apparently having 'stretched' the truth 'a bit' in her statement to police. However, [the defendant] also described feeling 'bad' for his behaviour, stating 'there is no excuse. Alcohol with her insecurities and my thought patterns don't mix'. On specific questioning, [the defendant] acknowledged that the pattern of behaviour in his current relationship is toxic but he claimed to love his partner and he suggested that she is not willing to 'lose' him. Therefore, he has encouraged her to engage in treatment and address her substance abuse so as to minimise the risk of further abusive behaviour in the union. [The defendant] claimed that he will leave the relationship if his partner cannot do this as he does not want to offend again. Whilst this statement is admirable, it still places a large portion of responsibility with his partner, the victim of his violence, for breaking the cycle of abuse in the union.
In summary, in Dr Seidler's view, the defendant: 1. had struggled with alcoholism throughout his life, chronically relapsing to heavy alcohol abuse whenever he was at liberty in the community. His strongly expressed desire to maintain sobriety, and his confidence he can do so, is naïve and seriously understated the risk of relapse in his case;. 2. presented with an antisocial personality disorder which has driven much of his general offending as well as his sexual offending which appeared to be a function of his impulsivity, egocentricity and generalised lack of respect and empathy for certain others; 3. was a chronic violent offender, both within and external to his relationships, with his violence in domestic contexts being more severe and persistent. Alcohol operates as a disinhibiting factor; 4. had a significant history of violence which had continued unabated and remained unaddressed, despite his claims to the contrary; 5. alcohol abuse, antisocial attitudes and peers, poor emotional and interpersonal coping skills and lack of a structured routine were factors in his offending. He presented as naïve about his potential for relapse and unrealistic about his capacity to achieve change unassisted. He also continued to demonstrate a lack of true responsibility and accountability for his past abusive and illegal behaviours. He required support, structure and supervision to keep him motivated and on track to achieve his goals; 6. presented with chronic emotional coping deficits and poor self-regulation, which has contributed to his violence; 7. the most salient risk for reoffending was relapsing into alcohol abuse as well as being in an intimate relationship where there was conflict or emotional challenges; and 8. future victims of violence would mostly likely be an intimate partner but the risk also extended to secondary victims with his risk for future sexual abuse being much lower.
With respect to the defendant's pattern of violent offending, Dr Seidler gave evidence during cross-examination that: [W]e have seen an escalation obviously that the index offence if you like is more serious than previous offences. Secondly I think we have seen an increase in his violence as his criminal career has gone on. The third issue is I think we have also seen an increasing, and this is not a real word, privatisation if you like of that violence so it has moved away from pub brawls into the home where there is less supervision, so the person is more likely to be uninhibited I suppose in their expression of violence. So there are several factors that for me would raise some concerns as to whether that violence would potentially increase but they are based on those factors I have just identified. … There's an escalation in frequency so his offending becomes more violent over time, if that makes sense. Not in terms of the severity other than the index offence which you referred to before.
The defendant criticised Dr Seidler's reference to an escalation in his violent offending by reference to the index offence. Whilst Dr Seidler's opinion was a clinical and not a criminological assessment, it appears to me the assessment was open to her, given the seriousness of the index offence (even if at the low end of that type of offence) and the injuries inflicted.
Dr Seidler elaborated, again in cross-examination, on the implications of the change in the defendant's offending pattern over time, with regard to the risks posed by his offending, giving evidence that there has been: [A] recent escalation with the index offence and the offences are moving increasingly private within the domestic home which means that there is not the issue of being in public and likely to be intervened with by somebody else so there is less likelihood of a person being inhibited…
Dr Seidler considered the recency of the index offence to be significant as to the escalation and the defendant's risk of future offending, giving evidence in cross-examination that: Well, significance insofar as there is a fairly common adage in forensic mental health that the best predictor of future behaviour is recent past behaviour. So recent behaviour is significant in the sense that it's more likely in the person's current repertoire of behaviour that's not related to twenty years ago. So the significance is that it's more recent.
When some of the defendant's past offences were put to Dr Seidler in re-examination, such as his assault on V2 in April 2000 whereby he punched her to the face and then kicked her to the body and face whilst she was on the ground, Dr Seidler agreed that the potential for injury with such offences is significant. The nature of that type of offending was also relevant to her clinical assessment as to the risk posed by him in terms of future violent offending.
Dr Samuels observed that the defendant has often impressed people in the past as to his motivation to change, although he had never followed through with that and only lasted a few months in the community before reoffending.
Dr Samuels further noted: [The defendant] also made it very clear to me that he is determined to return to Coffs Harbour to be with his partner, despite all the issues that have ensued between the two of them. I was left with some concerns about his level of insight and understanding of his offending behaviour and felt that some of the plans he had for the future were somewhat unrealistic and a little grandiose, given the reality of what has occurred to date.
The defendant does not suffer from a psychiatric condition. He does have some residual post traumatic-type features he does not meet the DSM-5 criteria for post-traumatic stress disorder at this stage. The defendant did satisfy the DSM-5 criteria for: 1. substance use disorder, predominantly for alcohol but at times stimulants and cannabis, and 2. antisocial personality disorder, with a history of conduct problems consistent with the evidence of manipulative behaviours as regards his assertions about changing his lifestyle (which is never sustained), pervasive disregard for others as manifested by, inter alia, his impulsivity and aggressiveness (repeated assaults) and his lack of remorse.
The defendant's salient risk factors included: 1. continued contact with V5, with his most recent serious offending directed towards her and current pending charges regarding further alleged violence upon her; 2. tendency to minimise what occurred with past offending (e.g. sexual offending) and omit salient details, as evidenced by his account of the sexual assault committed in 2005 which was a "serious sexual offence where [the defendant] entered a woman's toilet, was extremely forceful and intimidating and injured the victim physically"; and 3. consumption of alcohol (described as his most "pertinent dynamic risk factor") whereby the defendant is at high risk of offending both for physical and sexual violence when intoxicated. The defendant generally claims to have no memory of what occurs during such offending and has few protective factors.
In Dr Samuels' opinion: [The defendant] has displayed a longstanding pattern of impulsivity, irresponsibility and failure to conform with social norms, and I think it is unlikely that this pattern of behaviour will change without significant psychological therapy and maturation. [The defendant] is a physically fit, healthy man and will continue to pose a risk to others when intoxicated into the future. I do have serious doubts about his ability to conform with an ESO but if he is able to, this will be a very encouraging and significant mark of forward progress. At this point I would see a five-year order as being appropriate.
With respect to the defendant's behaviours and the impact of alcohol abuse on his risk of reoffending, Dr Samuels gave evidence in cross-examination: I think his underlying personality structure and possibly the exposure to trauma makes him, at times, a little volatile and aggressive and I think under certain circumstances there is a potential for him to act in an aggressive manner if his needs are not met or he's coerced to do something. And I think under those circumstances, those more minor assaults, pushing, could be evident. But I think if you throw alcohol or substances into the mix, the potential for far more violent offences is there.
With respect to the nature of the defendant's past offending (i.e. blows to the victim's head, kicking on the ground), Dr Samuels agreed in re-examination in terms of the potential injury that might be caused was concerning with the past offences being "…significant serious patterns of violence".

[18]

The Defendant's Evidence

In Mr Duncan's correspondence on behalf of Maayu Mali, he states that the defendant participated in all centre activities to address his drug and alcohol issues which were listed in his correspondence. These included self-awareness groups with Ms Broughton and cognitive behavioural therapy which incorporated "Thoughts, Beliefs and Values and Healthy Recovery in regards to Drug & Alcohol Addiction".
Mr Duggan also noted that the defendant "denied any advocacy on his behalf for any case management in relation to himself and his key worker in achieving his treatment goals. [The defendant] believes it is empowering "for him to accomplish on his own accord and we are comfortable to allow [the defendant] to display his independence".
Ms Broughton's report, which concerned the defendant's participation in counselling, was positive. She stated that the defendant engaged in counselling, worked tirelessly in processing "the trauma and mistakes of the past" and put new behavioural strategies in place. She referred to his "management and regulation of emotions towards a calm and responsive attitude no matter the situation".
Mr Broughton said the defendant always behaved in a respectful and well-manner toward her and commended him on the work he had done to this point. She considered he should reside in Lismore and mentioned that he had organised support systems in Coffs Harbour for himself and his partner to continue mental health growth.
The defendant also relied upon a report of Ms Mackie, a psychologist with the Tharawal Aboriginal Corporation. The defendant had been a patient of Ms Mackie since 22 October 2018.
Ms Mackie indicated that, except for knowing that the defendant had spent a long time in custody she did not know his offending history. That had not formed part of their counselling sessions.
On 5 December 2018, Ms Mackie conducted a clinical assessment of the defendant and came to the conclusion that he was suffering from post-traumatic stress disorder. She described the symptoms that resulted in that conclusion and described a stabbing incident in February 2017 which "related to the development of his current PTSD symptomatology". His symptoms were, she opined, exacerbated due to him not feeling safe in the Campbelltown area. This is the area where one of the individuals who attacked him in jail had affiliates in a gang.
Ms Mackie also stated that the defendant presented with clear indicators that he was motivated to continue to remain abstinent from alcohol. He had indicated to her that he would like to make his parents, particularly his father, proud of him. The defendant also presented as a very spiritual and cultured man. His traditional values and roles were extremely important him.
Ms Mackie opined that he was heading down the track of wanting to change his life and to help other Aboriginal people who were in a similar position. He longed to live "on country" in Coffs Harbour or Lismore and had enrolled to study at TAFE next year.
Finally, Ms Mackie opined:: [the defendant] would become depressed and dejected if he was separated from his country and family for any further period. He may suffer from a cultural illness, "Longing for Country". He has been separated from country and family for almost the entirety of his adult life. It is also important for [the defendant] to be able to connect with and visit his ancestors who have passed on in his traditional ways. His grandfather was an important role model, and one which [the defendant] has tried to emulate. It is highly important for [the defendant] to continue practising traditional ways and not forget his culture and spirit which is as important to him as life itself.
I accept the evidence led on defendant's behalf is generally positive and reflects an intention in the defendant to overcome his long-term afflictions and remove himself from criminal activities. The expressions by Ms Mackie as to his separation from country and the importance of this in his life are important and must not be underestimated in the assessment of the defendant's case. However, the evidence needs to be approached with some caution, particularly in light of the independent expert evidence.
Ms Broughton and Ms Mackie did not have long-standing therapeutic relationships with the defendant. It is unclear what information or materials they had received concerning his past history and difficulties in contrast with the extensive material received by those experts. Ms Mackie readily conceded she knew nothing of the defendant's offending history.
Reference should also be made of the opinions expressed by Dr Samuels as to the defendant's capacity, however well-intentioned, of impressing people in the past as to his desire and ability to change which has not come to fruition. The State pointed to the reports in 1997 including a pre-release report that the defendant appeared to be a "changed man" who had made significant progress in psychological counselling. Reference is also made to the report to Community Corrections dated 28 February 2018, by which an officer recorded the defendant being very motivated and positive about his future and accepting the needs to change his life. These aspirations were by and large not met. These factors affect the weight that may be given to the defendant's evidence for the purposes of undertaking deliberations with respect to s 5B(d).

[19]

Conclusion: s 5B(d)

I earlier referred to various aspects of the defendant's submissions concerning his offending history. Those submissions emphasised that whether the index offence lies in the low range of objective seriousness is a relevant consideration in relation to an assessment of the risk of the commission of another single "serious offence". It was also relevant to the exercise of the Court's discretion as to whether an order should be imposed.
That submission may be accepted as was a further submission, which I earlier addressed, that the offense of reckless grievous bodily harm was in fact, in the low range.
The defendant also submitted that both Drs Seidler and Samuels agreed that the likelihood of the commission of further offence was limited to offences involving violence rather than sex offences, although the defendant did not wish to be heard that a sex offence did not involve some violent aspects. It was submitted that the Court should treat as speculation any contention by the State that the nature of the violence inflicted by the defendant during the course of his criminal history, including the punching and kicking of victims in various parts of their body, produced "a likely risk" of very serious injury. The more likely outcome was that any further offending would result in lower order injuries of the type the defendant had previously committed. It was submitted that Dr Samuels agreed that the likelihood of further violence in the future would be consistent with the types of assaults which had occurred in the past which were lower level assaults (which did not involve a serious violence offence).
It was submitted, by the defendant, that in reviewing the risk of the commission of a serious offence it is highly relevant to consider past behaviour. The defendant had never really committed a serious violence offence. The experts placed little emphasis on the legal definition of serious violence offences and based their conclusions on their general opinion that violent offences are by their nature very serious. Because the experts refer to violence generally, including lower-level offences, their evidence is potentially unreliable and unhelpful in the assessment of risk.
The Court should also have regard to the fact the defendant has not committed any acts of violence since 2015, although it is accepted that a proportion of this period relates to time in custody and at a residential rehabilitation centre.
Overall, it was accepted that the defendant had a troubled criminal history which included numerous offences for violence but a recidivist violence offender is not necessarily a person who is likely to commit a "serious violence offence". The fact that the defendant may not have ever, in reality, committed a serious violence offence, it was contended, is highly relevant in this respect.
In my view, the submissions advanced by the defendant in this respect failed to grapple with the true nature of the defendant's historical offending and the force and the significance of the independent expert evidence bearing upon the risk of the defendant committing another serious offence if not kept under supervision under an extended supervision order. Further, I prefer the opinion of those experts over that of Ms Mackie and Ms Broughton, having regard to the material available to them to make their assessment and their respective fields of expertise.
Whilst it is true that the history of the defendant's offences of violence have been below the threshold for serious offences, save for the index offence, and the index offence itself, whilst constituting, as I found, a serious offence, was in the low range, those descriptions of the offending do not sufficiently comprehend the relationship between that offending and the risk of committing another serious offence by the defendant (which I consider to be unacceptable).
The defendant has spent the vast majority of his adult life in prison. He has an entrenched history of violence and alcohol abuse.
I agree with the submission that he has an established cycle of exiting prison sober, rapidly relapsing into binge drinking, resuming unstable relationships and then offending violently before returning to custody. Since 1992, the defendant, as previously mentioned, has committed violence offences on no less than 11 separate occasions, notwithstanding the limited period of time that he has spent in the community owing to the fact he was in prison for the vast majority of his adult life.
His victims are frequently vulnerable females and the offences involved punches or strikes to the head, kicks to the head and body often whilst the victim is on the ground and once involving the threatened use of a weapon. The offences are frequently committed whilst he is engaged in rage and disinhibited by alcohol.
The defendant has recently completed alcohol rehabilitation in the community. However, his engagement with such rehabilitation remains problematic. Dr Seidler opined that, whilst the defendant strongly expressed desire to maintain sobriety and a confidence that he can do so, such confidence is naive and seriously understates the risk of relapse in his case. Dr Samuels expressed concerns about the defendant's level of insight and understanding of his offending behaviour and felt that his plans for the future were somewhat unrealistic and a little grandiose. He also found that the defendant had displayed a long-standing pattern of impulsivity, irresponsibility and a failure to conform to social norms.
In addition to those considerations, there are other further significant difficulties with the defendant's contention that the most likely outcome of further offending would be below the threshold of serious offences for the following reasons: 1. As discussed above, there is a significant risk that the defendant may relapse into alcohol abuse and continue relationships with vulnerable partners that are marked by instability and conflict. There is a high risk of him acting in a violent manner in those circumstances. 2. The defendant was diagnosed by both experts with an antisocial personality disorder. Dr Samuels said the defendant displayed a long-standing pattern of impulsivity. Dr Seidler scored the defendant to be at high risk of future criminal violence under the HCR-20 instrument. She scored the defendant to be five on the STATIC-99R, which placed him at the above average risk category of sex offending. Dr Samuels opined that the risk calculated using actuarial risk measures, like STATIC-99R and VRS, likely underestimated the defendant's level of risk given that such estimates are usually over a longer period. As Dr Seidler explained, the use of such risk assessment tools do not stipulate the types of violent offending, which may occur in the future but that it was up to the clinician or assessor to take the information available to them through documentation, interviews and the like to make a clinical assessment as to the likelihood of future behaviour. 3. Dr Seidler assessed that there were several factors which raised concerns as to whether the violence previously engaged in by the defendant in his criminal offending would potentially increase too. She also opined that the frequency of his offending would increase. She pointed to the public nature of his more recent offending. This indicated that the defendant was becoming less inhibited. Dr Samuels opined that, if alcohol or substance abuse is involved, the potential for far more violent offences exists. There remains real doubt as to the defendant's present progress regarding alcohol abuse. 4. I do not consider the fact that the defendant has only one previous serious offence falling within the low range, confines (as the defendant contended) the risk of a further violence offence to that category of offending. This is both based upon the expert opinion to which I have referred to, but also the propensity of the defendant to strike his victims to the head - heightening the risk of his victims suffering grievous bodily harm. The defendant has also, on one occasion, possessed and threatened to use a weapon, namely, a knife. That the injuries incurred as a result of the violence inflicted by the defendant have not resulted in more serious offences cannot be attributed, as the defendant seems to do, to some measure of control or design exercised by the defendant or the nature of the violence he inflicted, particularly having regard to the opinions of the independent experts to which I have referred. I agree with the submission of the State that it is mere good fortune that a more serious injury has not resulted.
Thus, there is an unacceptable risk of the resultant injuries being sufficiently serious as to meet the definition of serious offence having regard to the threshold involved under the Act.
I am satisfied the defendant poses a high risk of committing future offences of violence and further satisfied that the risk of any injury caused by future acts of violence as being sufficiently serious as to constitute a risk of grievous bodily harm or more serious injuries attracting more severe consequences, if the defendant is not the subject of supervision under an extended supervision order. Those risks are unacceptable due to the nature of risk I have described as deriving from proper analysis of the defendant's violent offending history and expert opinion.
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 an extended supervision order.

[20]

Should an Extended Supervision Order be made?

The defendant submitted that, notwithstanding an affirmative finding under s 5B(d), the Court should exercise its discretion to refuse to make an extended supervision order. A considerable part of this submission overlapped with the submission advanced with respect to other determination under s 5B(d). I will not repeat my findings in that respect, and, for the most part, consider the findings made and conclusion reached, with respect to s 5B(d), should result in a conclusion that a discretion should be exercised in favour of an extended supervision order.
It was submitted by the defendant that he had made considerable progress in relation to his rehabilitation as was acknowledged by Dr Samuels and as reflected in the defendant's evidence. It was submitted that the evidence that the defendant had smelled of alcohol in May 2018 did not mean that he consumed alcohol. I have dealt with those submissions effectively under the consideration of s 5B(d).
Notwithstanding the defendant's commendable efforts in this respect, his engagement with and success under rehabilitation (and ultimately control of alcohol consumption) remains problematic and, as opined by the experts, he continues to display an overly optimistic belief that he can abstain from drinking and has concerning views as to his responsibility for his violent offending. There remain serious questions about his insight and impulsivity. I have earlier found that the proposition that the defendant had not consumed any alcohol in May 2018 may be doubted even though a finding may not be made that he was intoxicated. The defendant's engagement in the May 2018 incident with V5 also raises doubts about his rehabilitation, as mentioned by the expert witnesses. That incident also raises concern about association with V5.
The defendant referred to the fact that he did not commit any criminal offences since 2015, a period of three years.
That submission, however, overlooks that the defendant was released on parole on 16 September 2017 and had parole revoked on 28 March 2018. I have previously made mention of his performance on parole and other forms of supervision.
A further submission was made which overlapped with submissions as to appropriate conditions, to which I will return, namely, a highly significant issue for the defendant was his Aboriginality and his need to be close to family and land where he belongs in the northern parts of New South Wales. Reference was made, in this respect, to the evidence of Ms Farroway that, if an extended supervision order was imposed, it is inevitable the defendant would be required to live in Sydney. Reference was also made to the prospect of the defendant seeing V5 during the currency of his order.
I consider that the issue raised on behalf of the defendant, concerning his Aboriginality, is a particularly important issue and one that requires careful consideration. However, it must be borne in mind that the defendant has spent a very significant part of his life in custody because of his offending history and that one function of any extended supervision order is rehabilitation which is not exclusive of the defendant's attendance at special functions near his family and land. The order may, therefore, not only gradually allow for greater cultural engagement but a long term restitution of the defendant's engagement in his land and with his family.
In the opinion of the experts, and Ms Farroway, the intensive structures that are currently in place for the defendant under the interim supervision order have proved beneficial and are assisting him to abstain and remain offence free. Appropriate action can be taken if he is non-compliant with directions or if there is an alteration in any circumstances that put him at imminent risk of committing a serious offence. I accept that evidence.
In my view, having regard of the conclusions reached, with respect to considerations arising under s 5B(d) and the further considerations undertaken under this heading, the Court should exercise its discretion pursuant to s 9(1) of the Act to make an extended supervision order.

[21]

Principles

The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 ("Wilde") held that s 11 vests the Court with a "broad" discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). The purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).
Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to "facilitating rehabilitation" even when they do not personally require an offender to "undertake" rehabilitative steps (at [49]).
The Court of Appeal further held at [53]-[54]: [53] …Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. [54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups.
In State of NSW v Keith Farringdon [2018] NSWSC 874 ("Farringdon"), the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.
In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant re-offending "and thereby aiding his rehabilitation" (at [37]). In applying the "test" set out in Wilde at [53]-[54], his Honour bore in mind "that one can expect the 'Departmental Supervising Officer' (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion".
His Honour imposed the disputed conditions for the reasons outlined at [47]=[58]. Button J held (at [59]): [59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.
With respect, I accept Button J's statement of principles in Farringdon.

[25]

Condition 26

The defendant contended that condition 26 should be made the subject to the following exception: …except for association with V5 in circumstances that are supervised by the department.
Reliance was placed upon the evidence of Dr Samuels who, it was submitted, supported the defendant fostering a relationship with V5 in the interest of him rehabilitating.
In my view, the condition should be imposed without the limitation sought by the defendant.
Dr Seidler doubted the capacity of the defendant and V5, at the present time, to cohabitate safely without exposing the defendant to significant risk of reoffending and V5 to future harm. Neither the defendant nor V5 have the skills to successfully manage the risks arising in that relationship, which are "significant", nor the capacity to abide by strict conditions imposed to permit safe interaction.
Dr Seidler elaborated further, giving evidence that: [T]here are relationships that can be toxic that affect people's mental health in quite serious ways, so it depends on how you define rehabilitation and it depends on significance. It would make him happier to be with her. If our goal on rehabilitation is to stop him drinking and stop him re-offending in a violent way, I am not necessarily sure that being in that relationship would further his rehabilitation so I think it depends on what definition you use and whose position you are taking it from. But I do think that the relationship is significant to him and he wants to be with her.
Dr Seidler set out a number of matters she would want to see before contact took place between the defendant and V5, namely: So for example if we took this in the sexual abuse domain, if we are looking at a perpetrator and a victim of a sexual abuse, if that contact were to occur as a therapist, I would be stipulating that the offender in that situation had taken responsibility for their abusive behaviour, had an understanding of the triggers to that behaviour, had an appreciation of victim impact, had an awareness of their grooming tactics and cycle of behaviour. I would also want to know that the victim in that situation was, in treatment, was ready psychologically to have that contact with the offender. That they were stable enough, that they also weren't taking any responsibility for the violence and abuse that was perpetrated against them and that they were able to identify the manipulation and grooming tactics that were used on them…So there needs to be a level of accountability, honesty, responsibility and preparedness to even make supervised contact appropriate, in my view.
In Dr Seidler's view, whilst accepting that the possibility of future contact between the defendant and V5 would be the "wrong approach" it is not necessarily the wrong approach to prohibit such contact at the present time. Her opinion was, in my view, persuasive and readily extrapolated to the supervised visit proposed by the defendant.
I do not accept the submission advanced by the defendant, as to the evidence of Dr Samuels, if that submission was to the effect that Dr Samuels supported current contact or supervised visits between the defendant and V5. I consider that Dr Samuels supported a restriction in contact of the kind proposed by the State at the present time. His evidence was to the effect that there was reason to restrict contact, at the present time, but as the defendant obtains stability that restriction should not continue.
In examination-in-chief, Dr Samuels confirmed that he had considered the strategy outlined in Ms Farroway's affidavit (which included the proposal to prohibit contact with V5 in the short to medium term). Dr Samuels confirmed his view that it was reasonable. Specifically, the evidence he gave on this was as follows: Q. And in terms of Ms Farroway's affidavit, it outlines a strategy for management of Mr King should an ASO be made? A. Yes. Q. Subject to certain conditions of course? A. Yes. Q. I am just going to ask you to assume some of those for the purposes of comments that Mr King would reside out of the Lismore area, reside in Sydney? A. Yes. Q. There may be permission given to him to attend cultural and family events in Lismore subject to certain risk assessments and checks? A. Yes. Q. That there may be a relaxation of that restriction over time based on his progress and that in the short to medium term that he would not be permitted to have contact with [V5]? A. Yes. Q. Do you consider that that management strategy is reasonable on the material that you reviewed? A. I think it is reasonable and I have highlighted in my report that I do consider that the relationship with V5 particularly, if alcohol becomes involved is a combination leading to a potentially high risk scenario, potentially adverse outcome. So I would see those as being reasonable. [Emphasis added.]
In cross-examination, the evidence given by Dr Samuels on this issue was consistent with the above conclusion. That evidence was as follows: Q. Sorry, V5. I think your evidence about her and this defendant is that you had concerns about the relationship overall, is that correct, in terms of A. I do, yes. Q. And those concerns you have are related to his potential to abuse alcohol and then be violent and also problems that you may be aware of with her as well; is that correct? A. Yes. And there's certainly evidence or suggestions from the material I've reviewed that V5 places herself in situations of risk and is not probably doesn't have the capacity to protect herself and will constantly I understand it's not always [the defendant] making the approaches, it's often V5, and that in itself increases the risk. Q. But you would appreciate, just from your discussions with him and what you've become aware of from reading all the documentation, that he's quite devoted to her? A. Yes. Q. And he wants to continue a relationship with her in the future? A. He's made that absolutely clear and that's what I gather from the assessment, that he's absolutely determined to go back and resume that relationship. But doesn't appear to have a great deal of insight into the dynamics in that relationship or the potential for problems for himself or for V5. Q. But would you agree that it is feasible that, with correct treatment, with correct strategies in place, and overall rehabilitation, that there might be some prospect that they could live a relationship without violence? A. I think that's absolutely true but I think it would be I mean, I think it's commendable and it's certainly a long period for [the defendant] that he's been alcohol free, we hope he's been alcohol free for this period, but it's still relatively early days. I would regard him as somebody who would be at moderate to high risk of relapse of substance misuse and I think that there would really need to be quite a prolonged period of stability in terms of substances before I think that could safely occur. I think he really would need to deal with some of the underlying psychological issues. They may well need to have some relationship type counselling. V5 herself probably needs some significant therapy to be able to look after herself and protect herself. I think one of the risks and we've just seen, and you both took me to the case, with the police interview or record of the encounter in Coffs Harbour, or wherever it was, V5 didn't, you know whether or not we don't know whether it happened. But I think that one of the patterns has been she has a reluctance to press any charges or make any complaints and I think that's part of her inability to protect herself. So she would need to be also would need to make some rehabilitative strides I think for a relationship to be safe and successful. But yes, I agree that in time, that is possible. Q. Just to make it clear to you, doctor, I'm not suggesting to you that they should immediately resume a relationship A. Yep. Q. - unsupervised at this point in time. But what I'm suggesting to you is, in terms of his overall successful rehabilitation, a rehabilitation program that is likely to encourage him to undertake and be part of, don't you see it as important that there is a component in that whereby a strategy is put in place with a view to trying to allow that relationship to happen, if it's able to happen, under supervision, under safeguards, to accommodate those wishes that he has and the devotion he has to her? A. I think it's very important to have a goal to work towards and I think that may be a great motivator, yes. Q. And any proposal which was to the effect of: Look, under no circumstances we're ever going to look at the possibility of such a relationship. That's likely to be a negative thing to him and it's likely to send rehabilitation backwards, isn't it? A. I think that would be a great disincentive and I think that would be an unreasonable I think they're good reasons at the moment to restrict access but certainly as Mr King attains stability and moves to an established remission from substance use, he should then have the same rights as anybody, yes.
I accept the submission of the State as follows: Further to the evidence of Ms Farroway, if an ESO is made the ESO Team intend to restrict the Defendant having contact with V5 at the present time. The evidence is not that the ESO team rules out the possibility of future contact taking place. The evidence is that before the ESO team permits such contact it would want to be satisfied that the risks posed by such contact could be reasonably managed. The risk of such contact is not merely limited to V5. It also extends to the Defendant, as such contact could jeopardise his ongoing progress, abstinence from alcohol and not reoffending. In deciding this issue, the ESO team would take into account various matters including the Defendant's progress and that of V5. Since the Defendant has been residing in Sydney and having no contact with V5 (although she has attempted contact with him via text message), he has not come to the adverse attention of police. That is to be contrasted to when he was living in the Lismore area, such as the occasion he was found in her company by police intoxicated on 12 February 2018 and again on 17 September 2018 following an altercation between them.
I do not consider that it is the position of the State that future contact with V5 has been ruled out. I accept, as in Farringdon, the ESO Team will approach that issue in a common sense, practical and reasonable way.
Further, I accept the submission of the State that it would be inappropriate at this time to permit contact between the defendant and V5, as a victim of domestic violence.
I also accept the concession by counsel for the State that the receipt by the defendant of a text or similar message as an involuntary act would not constitute a breach of the orders.

[27]

Condition 49

The State suggested in its final submission an alternative to proposed condition 49. This was based on the evidence of Ms Farroway.
That alternative order was as follows: The Defendant must agree to his healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner's general opinion as to his development of insight into offending risk factors and attitudes and strategies to abstain from alcohol and illicit substance use and to reduce his risk of offending.
The defendant proposed, in the alternative, the following condition: The defendant must agree to his healthcare practitioners providing information to the DSO concerning confirmation of his attendances, his level of engagement, his progress and recommendations for additional support. This does not include confidential communications which the Defendant has with the relevant health care practitioner.
I consider the State's alternative condition to be practical, workable and consistent with Ms Farroway's and Dr Seidler's evidence as reflected below.
Ms Farroway gave evidence as follows: [I]n instances where we have consent to speak to a health care practitioner, whether it is a counsellor or some other treating physician, the nature of our enquiries would only be for those matters relevant to the management of the person and their risk factors. So matters of a general health nature, personal illnesses, health conditions, we would not seek to find information on and we certainly would not seek information about something as personal as past abuse or treatment regarding trauma or something of that nature, because it generally is not relevant to the management of risk and the management of a person on one of these orders ... We speak to them to gauge from them their professional opinion about how the person is going, about how the person is participating and engaging in the treatment around their risk factors. So practitioners won't relay to us the details of what they are covering during their sessions or in their treatment. What they convey to us is their professional opinion regarding how that is going. It could be in relation to things such as is the person beginning to develop some insight into their risk, beginning to develop some understanding of ways to mitigate risks that may present to them, are they beginning to be able to articulate the scenarios that would be high risk to them that they would seek to avoid. We speak in a general sense about how they are engaging as opposed to the nature of what is said and what is exactly occurring in the sessions.
Dr Seidler's evidence, with respect to the same, is extracted below: Q. So all they need to know is confirming that he is attending and that he is engaging? A. I wouldn't say that is all they need to know, as a therapist who provides treatment to people on orders, I believe that a supervising officer needs to know if their risks has changed, if their mental health is deteriorating, if they are breaching the conditions of their order and I think that is my responsibility, as a therapist who works with a client on an order to communicate relevant information to the relevant supervising officer. Q. But not in detail of the information they provide for example about sexual assault incidents that occurred? A. No.

Parties

Applicant/Plaintiff:

State of New South Wales

Respondent/Defendant:

King

Legislation Cited (4)

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

Crimes (High Risk Offenders) Act 2006(NSW)

Crimes Act 1900(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Cases Cited (27)

THE INDEX OFFENCE

It is appropriate to deal with the index offence at the outset of this judgment due to submissions advanced by the defendant as to the operation of s 5B(a) and (b) and, in particular, in that respect, that the present application did not satisfy the requirements of those provisions because the defendant was neither an "offender" nor a "supervised offender". This contention was later abandoned, but nonetheless requires attention, in my view, albeit with a greater brevity that might otherwise be required, as it concerns the power of the Court to entertain the application.
Between 5 and 11 November 2015, the defendant and his partner ("V5"), set up camp at the Cambridge Plateau picnic area at Coronation Park, Casino. On one occasion, the defendant committed an assault occasioning actual bodily harm by biting V5's upper right forearm leaving a 2 centimetre lesion and swelling ("AOABH"). On another occasion, within the same period, the defendant caused his partner bodily harm by striking her to the head with his hand, knocking out her lower left incisor tooth, and causing a nasal septal cartledge haematoma ("the index offence").
The defendant was arrested and charged on 16 November 2015. On 2 December 2016, after pleading guilty, her Honour Judge Wells SC at the Lismore District Court sentenced the defendant to terms of imprisonment for AOABH and reckless grievous bodily harm. He was sentenced to 2 years and 6 months imprisonment (9 months for the AOABH and 2 years and 6 months for the index offence). A non-parole period of 18 months was fixed for the more serious offence, namely, the index offence.
Those offences form part of a lengthy history of criminal offending, which will be discussed later in this judgment.
Before exposing in greater detail the abandoned issues and, what ultimately then became the primary issue in the proceedings (namely, the satisfaction of requirement of s 5B(d)), it is useful to first give an overview of the relevant statutory framework and principles (the statement of the latter having been derived from a recent judgment of the Court in the State New South Wales v Cook (Final) [2019] NSWSC 51 at [22]-[29]).

OBJECTS OF THE ACT

The Act's primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community "must be the paramount consideration" when determining an extended supervision order application: s 9(2).
The word "ensure", which is referred to in the objects of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [61].

Unacceptable Risk

The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of "high risk sex offender" as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60].
As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, two observations may be made.
First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely "drastic" consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 ("Kamm") at [41] and [43] (per Harrison J)).
Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows: [127] In considering the question of whether the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision, I give the words "unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey at [43] as follows: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." [128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."

Section 5B(a): Was the Defendant an Offender

The first issue raised by the defendant concerned operation of s 5B(a) of the Act and, by necessary connection, the provisions of s 5B(b), so far as that provision picks up the definition of "offender" in s 4A.
The thrust of the defendant's submission, in this respect, was as follows: 1. The definition of "offender" in s 4A required the Court to make its own determination as to whether the elements of the recklessly cause grievous bodily harm offence are satisfied. This is so notwithstanding the defendant having been convicted and sentenced for the same. 2. The Court cannot be satisfied that V5's injury, based on what was contained in the agreed statement of facts (placed before the District Court in the sentencing of the offender for the index offence), amounts to a "grievous bodily harm" injury. It follows the Court would not be satisfied that the offence constitutes a "serious offence" or more specifically a "serious violence offence" as that term is defined in s 5A. 3. It follows the Court would not be satisfied that the defendant has served a sentence of imprisonment for a serious offence so as to satisfy the "offender" requirement in s 5B(a).
I do not consider that that is how the provisions of ss 5B(a) and 5A of the Act should be construed.
Prior to the commencement of the amendments on 6 December 2017, the Act provided for the making of an extended supervision order or continuing detention order with respect to either a "high risk violent offender" or a "high risk sex offender". The terms "sex offender" and "violent offender" were defined in s 4 as follows: sex offender means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence. … violent offender means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a serious violence offence.
Amendments to that Act, which commenced on 6 December 2017, essentially amalgamated those two categories into the one category, namely "offender".
The term "offender" is defined in s 4A as follows: 4A Meaning of "offender" For the purposes of this Act, an offender is a person who: (a) is of or above 18 years of age, and (b) has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence. [Emphasis added.] (The term "serious offence" means "serious violence offence" or "serious sex offence": see s 4(1)).

Section 5B(b) Supervised Offender

By s 5B(b), the Court must be satisfied that the defendant constitutes a "supervised offender" as defined in s 5I.
Section 5I relevantly provides in the defendant's case: 5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision): (a) while serving a sentence of imprisonment: (i) for a serious offence, or … (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole. [Emphasis added.]
Section 5I picks up the definition of "offender" in s 4A. As such, s 5I cannot be satisfied unless the defendant has been sentenced (following conviction) to imprisonment for a serious offence.
The additional work done by s 5I is that it requires that the offender, at the time the application for the order is made (e.g. filing of the summons), be in custody or subject to supervision while serving a sentence of imprisonment for a serious offence or whilst under supervision of an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. It does not suffice if they have previously been sentenced for a serious offence but his or her sentence expired prior to the filing of the application. That is consistent with the judgment of R A Hulme J in State of New South Wales v Haouchar [2018] NSWSC 1436 ("Haoucher") at [7]. In Haoucher, his Honour observed the definition in s 5I "is concerned with the offender's status 'when the application for the order is made', which, in the case before R A Hulme J, referred to the time the summons was filed.
The defendant was under supervision while serving a sentence of imprisonment, in the community, for the index offence, at the time the original summons was filed on 14 August 2018. The precondition in s 5B(b) is thereby satisfied.

[2012] WASCA 70

[2018] NSWSC 1408

(2015) 253 CLR 141

(2003) 57 NSWLR 653

(2016) 91 NSWLR 636

(1996) 184 CLR 501

(1986) 41 SASR 355