State of New South Wales v Kramer

The orders sought

1. The orders sought in paragraphs 5-7 of the State's summons were not pressed. The orders which it finally sought were: a. [P]ursuant to ss. 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order (ESO) for a period of 3 years; b. pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the proposed conditions set out in Schedule to the Amended Summons filed on 19 July 2023 as later amended.
2. The conditions finally sought are attached to this judgment.

Issues

1. There was no issue about the Court's power to make the final orders sought in Mr Kramer's circumstances, or that it had satisfied the formal requirements of the statutory scheme.
2. In issue between the parties was whether the evidence on which the State relied should be admitted; whether the orders sought should be made and the conditions it proposed imposed.
3. But the State's evidence having been received, Mr Kramer did not contend that the Court could not be satisfied, to the required high degree of probability, that he posed an unacceptable risk of committing another serious offence, if not kept under the supervision the State proposed. But he did contend that the evidence relied on was based on false, misleading and irrelevant information.

The disputed evidence

1. The State relied on the affidavits of:

• Ms Slattery-McDonald, the High Risk offender applications and operational governance officer in the extended supervision order team;
• Mr McLachlan, a solicitor employed in the office of the Crown Solicitor;
• Ms Kirkwood, the acting High Risk Offenders Applications and Governance Officer; and
• Ms Najjar, another solicitor employed in the office of the Crown Solicitor, together with exhibit SN-1.

1. There were numerous documents attached to these affidavits, including Mr Kramer's NSW and Queensland criminal history, parole records, detention records and records relating to his interim supervision. Written directions he had been given during that supervision, about which he complained in part, were also tendered.
2. The State also relied on the 2023 expert reports of Dr Dayalan, a psychiatrist, and Dr Youssef, a forensic psychologist, appointed as the result of Wright J's orders, and the 2022 report of Dr Parker (Senior Psychologist, Serious Offenders Assessment Unit), which Wright J had considered.

The circumstances in which final orders were sought

1. Mr Kramer's circumstances were discussed in the July judgment and established on the evidence led at final hearing. They relevantly include that: 1. When the application was made, Mr Kramer was in custody serving a sentence for a 2013 offence of having caused grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), for which he had been sentenced to imprisonment for eight years commencing on 30 July 2015; 2. Mr Kramer had also been convicted of murder in 1995, and in 2015 for another violent offence committed in 2012 (reckless wounding causing actual bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW)), as well as of other offending including drug offending and breaches of bail; and 3. Mr Kramer also has a significant history of punishment in custody from 1994, having since spent the vast majority of his life since age 24 in custody. This included punishment for assaults, fighting, intimidation, possessing drugs, refusing or failing to provide samples for drug testing and failing urine tests. His last recorded punishment was in October 2021, after a period of almost three years without recorded punishment.
2. Mr Kramer's murder conviction followed his active involvement in an armed robbery at a Pizza Hut store, although it was not he, but a co-offender who then shot and killed an employee. His conviction resulted from proof beyond reasonable doubt of his awareness that one of his co-offenders was armed with a loaded shotgun and had said that 'if someone gets in my way I will shoot them'. He was sentenced by Hunt CJ in CL who found him to have been a calculating and practised liar, albeit not a skilful one. His severity appeal was later dismissed and he spent his entire 15 year sentence in custody without parole.
3. Mr Kramer's 2012 wounding offence was committed while he was intoxicated, when he attacked his victim from behind and bit his ear so badly that it required surgical repair, during what was described as a prolonged and violent assault. The 2013 offence was committed while he was on bail, also involving an attack on a victim from behind, with Mr Kramer punching him, knocking him down and kicking him in the head, as well as on this occasion, biting off a substantial portion of his ear. Mr Kramer then attempted to attack this victim with a knife, but he managed to escape and call 000.
4. Mr Kramer pleaded not guilty to both offences and represented himself at trial before Haesler DCJ. His Honour concluded that his pleas flew in the face of overwhelming evidence and that both offences had been unprovoked.
5. Ultimately, Mr Kramer was convicted of the alternative offence he had been charged with for his 2012 offence, being reckless as to causing actual bodily harm contrary to s 35(4) of the Crimes Act, which attracted a maximum sentence of 7 years imprisonment, with his drunken state found to be the most likely explanation for that offence. For that offence, he was sentenced to a term of imprisonment of 4 years with a non-parole period of 3 years. He was also convicted for his 2013 offence, causing grievous bodily harm contrary to s 33(1)(b) of the Crimes Act, for which he was sentenced to a term of imprisonment of 8 years with a non-parole period of 5. The offence attracted a maximum sentence of 25 years imprisonment and a standard non parole period of 7 years.
6. The 2013 offence was found to have involved a deliberate attempt to maim and scar his second victim, having left him with a physical injury as well as significant mental scars, which were found to be the result of Mr Kramer's gratuitous cruelty. Both offences were found to have fallen in the mid-range and special circumstances were also found, Mr Kramer even then being considered to have become institutionalised, given his record of entrenched and serious recidivism and the sentences he had served as a result.
7. As the result of the concurrency of the two sentences imposed upon him, Mr Kramer only became eligible for parole on 29 July 2020 for the balance of the term of his second sentence. His total effective sentence was 10 years imprisonment with a 7-year non-parole period. In the end Mr Kramer served the whole of this sentence in custody, contrary to Haesler DCJ's hope that he would have the benefit of a period of supervision in the community.
8. Mr Kramer is now aged 53 years. He moved to Australia from Papua New Guinea aged 7, left his home at age 15 and has limited contact with his family, including his son. His offending history began at age 13 with a break enter and steal offence and his first violent offence, an assault, at age 15. He has spent the vast majority of his adult life since age 24 in custody here and since his release after he served his murder sentence, he has returned to custody 7 times for further offending.
9. Mr Kramer is now living in the Integrated Support Centre at Campbelltown where accommodation after release from custody is usually available only for 3 months, with extensions granted only in extenuating circumstances. There were no reports of major adverse conduct there, but it appears that Mr Kramer will have to obtain other accommodation.

The parties' cases

1. The State's case was that the evidence, including the recent experts' reports, established that Mr Kramer posed an unacceptable risk of committing a further serious violence offence which cannot be managed in the community without the extended supervision order it sought being imposed upon him.
2. Before Wright J there had been a problem with obtaining suitable post-release accommodation for Mr Kramer, which had persuaded his Honour that he then posed an unacceptable risk of committing another serious offence if not kept in detention until such accommodation could be found, after which he would require ongoing supervision: July judgment at [23].
3. Such accommodation later became available, with the result that the State's application for interim extended supervision orders which were made by Adams J. They resulting in Mr Kramer's release into the community on 23 August. Those orders were later extended by Yehia J. The State contended that on all the evidence now before the Court, it would be satisfied, to a high degree of probability that Mr Kamer continued to pose an unacceptable risk of committing another serious offence, if not kept under the proposed ongoing supervision.
4. Mr Kramer contended that the order and conditions sought were likely to exacerbate his risk of further offending; that the evidence, especially the opinions of experts, rested on false, irrelevant and misleading information; that the State sought to control, rather than supervise him; that how current conditions had been implemented had been unreasonable and were precluding his ability to reintegrate into society; that he did not pose the risk of domestic violence which the State had communicated to others that he posed; that he had no problems with drug abuse, but accepted that alcohol was a trigger for him re-offending and that he had thus resolved never to drink alcohol again; and that the conditions were contradictory, on the one hand not permitting him to associate with other offenders who he had spent most of his adult life with, but also not permitting him to communicate by social media with other members of society.

The statutory requirements

1. I am satisfied on the evidence that the formal statutory requirements for the making of the final orders sought have been satisfied by the State. It establishes that: 1. the offending for which Mr Kramer was in custody serving his sentence when the State made its application falls within the definition of "serious offence" in s 4 of the Act: s5B(1). It also falls within the definition of a "serious violence offence" in s 5A, given that his conduct caused grievous bodily harm to another. 2. the other requirements of ss 5B, 5I and 6 are also satisfied, Mr Kramer being a "supervised offender" still in custody serving his sentence when the application was made; 3. the State's application was also made within the period specified in s 6(1), the last nine months of the sentence he was serving; it was supported by the documentation specified in s 6(3); and the proposed conditions of supervision were provided as envisaged by s 6(4); and 4. he is now subject to the interim orders Adam J made, which have been extended and remain in force;
2. The Court must also have the satisfaction required by s 5B(d), namely, a high degree of satisfaction that Mr Kramer poses an unacceptable risk of committing another serious offence, if not kept under the order sought for his extended supervision.
3. In considering the evidence by which the State seeks to establish that the order it seeks should be made and the conditions sought imposed, the safety of the community must be the paramount consideration. The matters specified in s 9(3) must also be taken into account. They are: (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence.
4. What the State must establish, in respect of the required high degree of probability of further serious offending, is as explained in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Namely, "something 'beyond more probably than not'".
5. The existence of the risk, that is the likelihood of Mr Kramer committing a further serious offence, must be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. The risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely", as explained in TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199 at [6]-[12].
6. But the Court is not required to determine that the risk of Mr Kramer committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of him committing such an offence: s 5D of the Act.
7. The term "unacceptable risk" must be understood in light of the explanation in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. This involves an evaluative task undertaken in the context of this statutory scheme, the primary object of which is specified in s 3(1) to be to "ensure the safety and protection of the community": [55]. That assessment must be undertaken "in the context of making the community secure from harm as opposed to guaranteeing its safety and protection": at [61].
8. Thus, consideration must be given to matters such as Mr Kramer's past conduct, the seriousness of his possible future conduct and the period over which the risk he poses may come to fruition. The assessment must be based on an absence of protective measures and a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders: Lynn at [126].
9. The impact of the order on Mr Kramer's liberty is not relevant to the determination of whether the threshold in s 5B is satisfied. But it is relevant to the exercise of the discretion given by s 9, to determine the application: Lynn at [56]-[57]. Accordingly, consideration must be given to the case Mr Kramer advanced, albeit he did not lead evidence to support his submissions.

Should the orders sought be made?

1. The State relied on the expert reports and other documents, many of which they had considered, to establish its case.
2. Dr Parker's September 2022 risk assessment report was made in circumstances where Mr Kramer had refused the opportunity to participate in an interview. It was thus based on material obtained under s 25 of the Act and referred to information about his family, education, employment and substance use history, as well as his psychiatric and cognitive factors and treatment, his history of violent offending and his general criminality.
3. Amongst other things Dr Parker concluded that Mr Kramer fell within the highest categories of risk for violent offending and that the risk he posed of committing violence when sober was heightened when he is intoxicated.
4. It was Wright J who directed Mr Kramer to attend examinations with two experts appointed under s 15 of the Act to conduct separate psychiatric or psychological examinations and to furnish reports to the Court about the results of those examinations. He complied with that direction, although he did not consider those appointed to be independent. It should be noted that what s 15 requires is that they be qualified and that they report to the Court.

Report of Dr Dayalan

1. Dr Dayalan assessed Mr Kramer to be in the high risk category of violence risk.
2. He had interviewed Mr Kramer in custody, as well as considering the documentary material identified in his report. He noted that Mr Kramer denied ever having been diagnosed with a psychiatric condition and did not believe that he suffered one, despite a history of having consulted a psychologist for a few years while at the Junee Correctional Centre and then having been prescribed antidepressants and mood stabiliser medication. He claimed that he had then felt stressed and feared for his safety, after he had been stabbed. His mental state had improved after he had moved and he claimed that he had not taken the medication he had then been prescribed.
3. Mr Kramer had no explanation for his break and enter offences at age 12 or 13. He had begun using cannabis at age 15, living in a culture which encouraged its use, but he claimed he treated it only as a social thing. He admitted assaults and stealing and that the murder he was convicted of had occurred after he had been drinking all day and an armed robbery had been discussed. He claimed, however, that he had only gotten involved to assist his brother.
4. Mr Kramer expressed remorse and guilt for the murder and spoke about his reckless indifference to the victim's safety, as well as his later participation in a restorative justice conference and having then done whatever the victim's family had asked of him.
5. His attitude to his later assaults was noted to be different and Dr Dayalan observed that it became difficult to elicit responses from him. Mr Kramer denied guilt for drug offences and contravention of a domestic violence order of which he had been convicted. He refused to give details of the 2012 assault and claimed to have no memory of the 2013 assault. He admitted fighting in custody, but he claimed he had acted in self-defence and that he had been assaulted in custody a number of times. He also claimed his offences were not impulsive, although he also said he had reacted quickly with aggression. He did not believe he had a problem with temper, but suspected people could be intimidated by his assertiveness.
6. Mr Kramer explained that he had refused to participate in violent offender programs which were only available in custody to those who admitted their offending behaviour. He had intended to appeal his convictions for his last two offences and so was not eligible.
7. Mr Kramer had a medical history which included multiple head injuries with associated loss of consciousness from assaults. He had begun drinking alcohol at age 15 and abused alcohol for months after the murder, because of his feelings of guilt and shame. He did not intend to use either alcohol or cannabis again, having attended AA and NA meetings in custody and considering that drugs were a short-term fix and that problems then only got worse.
8. Mr Kramer reported a happy and supportive childhood; denied exposure to any domestic violence; claimed to have done average at school, having completed year 10; not having suffered any bullying; having a good circle of friends; enjoying sport and never having been suspended or expelled. He had learned to speak a number of other languages. After school he had a history of employment until age 24, having worked with his father in his business for two years, then in outdoor furniture making and later as a jig setter and roof tiler.
9. He reported no family history of mental illness. His only contact with his brother now was through letters. He had had two long-term relationships and a son from a short-term relationship.
10. Dr Dayalan explained that Mr Kramer became tangential when discussing topics he was not comfortable with and his account indicated a predisposition for persecutory interpretation of events.
11. Dr Dayalan outlined documents he had considered, including Mr Kramer's NSW and Queensland criminal records from 1983; a 2008 report of threats, including death threats made to staff in custody; a 2008 report of the Serious Offenders Review Council which noted numerous adverse reports of Mr Kramer's extremely belligerent behaviour since December 2006 towards staff, as well as argumentative and disruptive behaviour in classes, with programs he had undertaken considered not to have addressed his offending behaviour; his review of reports of repeated fighting and refusing to comply in custody; Haesler DCJ's remarks; Mr Abbott's 2022 pre-release report and the November 2020 psychology recidivism risk assessment report, made after Mr Kramer had refused to participate in an interview; Corrective Service case note reports, which identified his poor custodial behaviour and in June 2023, that he had nowhere to live after his release, having been assessed as not suitable for various placements; Mr Parker's September 2022 and June 2023 reports, which indicated that Mr Kramer had refused to engage with community corrections to discuss post release plans; Mr Gaffney's October 2022 risk management report, which referred to intimidatory and antagonistic behaviour towards correctional staff; Ms Kirkwood's July 2023 affidavits, which explained proposed conditions of supervision and that suitable accommodation had not been located; and Wright J's judgment.
12. Dr Dayalan explained his opinion, that Mr Kramer had suffered a conduct disorder in childhood and had a pattern of offending in adulthood which indicated difficulty conforming to societal norms, with antisocial traits exhibited, which he described. He considered that Mr Kramer presented with features of paranoid personality disorder and a paranoid disposition towards those in authority, with a tendency to react angrily to perceived attacks. In his opinion, Mr Kramer suffers a personality disorder with antisocial and paranoid personality traits. But his cannabis and alcohol abuse disorders were currently in remission. It was also noted that he denied any symptoms consistent with PTSD or an anxiety disorder.
13. Dr Dayalan explained the challenges presented in predicting the probability of a specific event occurring in future, despite the use of validated risk assessment instruments. He explained the HCR-20 clinical judgment tool widely used in forensic psychiatry to assess and manage risk of violent psychiatric patients. He also identified the historical and clinical factors relevant to Mr Kramer's assessment and his conclusions about the risk management variables and ongoing problems he presented, both in custody and in the community, given his yet unproven capacity to use strategies to cope with stresses he would have to deal with.
14. Dr Dayalan also explained the violence risk appraisal guide, a risk assessment instrument he considered had been shown to have utility in the prediction of violent recidivism in mentally disordered offenders.
15. The facts Dr Dayalan considered relevant to Mr Kramer's risk included that he had not lived with his parents to age 16; his alcohol, drug and criminal history; his past failures on conditional release; his violent history; his prior incarceration; his conduct disorder before age 15 years and his antisociality.
16. Dr Dayalan also concluded that he presented with a high loading of static risk factors which indicated he had an increased risk of violent offending behaviour in the long-term. Further, that his clinical and risk management variables indicated that he required close supervision, monitoring and a comprehensive management plan to manage that future risk in the short-term. It would also have to address his reluctance to acknowledge problem areas and to engage in treatment.
17. Dr Dayalan also explained that personality disorders are chronic and enduring in nature, and that while traits can fluctuate and reduce with treatment and support, antisocial personality disorder has a well-established association with an increased risk of violence. He considered that Mr Kramer also had a limited insight into his risk of relapse into substance abuse after release, which had been an important contributory factor to his prior serious violence offences, especially alcohol, which has a disinhibiting factor which results in increased violence.
18. He thus considered that Mr Kramer required drug and alcohol rehabilitation and would be assisted by psychological treatment and potentially, antipsychotic medication, given his propensity for a persecutory interpretation of events and interactions.
19. Given the extent of his risk factors and his prior history, Dr Dayalan considered that Mr Kramer did pose a risk of committing a further serious violence offence in future. One of the most important dynamic risk factors identified was substance use. Relapse would increase his risk and pursuing active treatment, vocational rehabilitation and stable relationships would decrease his risk. Historical risk factors were unlikely to change, but others could be positively affected by their pursuit. Unsupervised release would also increase his risk of relapse and other adverse factors.
20. Given that his risks had not been addressed in custody, Dr Dayalan considered that it was unlikely that he would voluntarily participate in structured programs after release, even though statements that he would participate in the EQIP program indicated some willingness to comply with conditions which he had indicated he would require in the community.
21. It was also relevant that there had been some reduction in his in-custody offending; a brief period of employment; no suggestion of substance abuse; and a theoretical understanding of anger management. In the result, Dr Dayalan considered that ongoing detention was unlikely to help address his risk factors and might increase them, given his institutionalisation. He also considered that Mr Kramer's abstinence form serious violence offences in custody was due to his abstinence from substance abuse.
22. Provided Mr Kramer had suitable accommodation, Dr Dayalan thus considered the supervised release the State proposed could help manage the serious risk he posed, but he considered that close supervision would be required, to promptly detect any breach in the community. He also observed that conditions might be gradually eased over time if he reintegrated, but that given his paranoid predisposition, psychiatrists and psychologists would need to share information about serious risks of harm with Mr Kramer's supervising team. He also considered that a 3-year period of supervision was required as a minimum.

Report of Dr Youssef

1. Dr Youssef concluded that Mr Kramer presented a high level of dynamic risk of further violent recidivism.
2. Dr Youssef had also interviewed Mr Kramer and had considered similar information to that considered by Dr Dayalan. In her report she explained the risk assessment tools she had used: the Violence Risk Appraisal Guide - Revised; the Historical Clinical Risk Management Tool - 20, Version 3; and the Structured Assessment of Protective Factors for Violence Risk. She also explained their limitations and the opinions she had formed.
3. Dr Youssef noted that Mr Kramer had explained his view that she was not impartial, but for the State, given that he was not paying her, but that in their first interview he was polite and able to articulate well, being very familiar with the documents. In his second interview he was agitated about a water bottle, but while he had considered not participating, did so.
4. Mr Kramer gave Dr Youssef a similar, albeit more detailed account of his childhood, schooling and relationship history, as well as an account of his relationship with his brother and why, on his instigation, he had no current relationship with his family. He also gave a similar account of his medical and substance use history, again being adamant that he had no problematic use of cannabis or alcohol. He disagreed with Dr Parker's 2022 diagnosis that he was likely to be an aggressive psychopath.
5. Mr Kramer's post release plans included securing employment with block chain technology and studying dance and psychology. He initially did not believe he needed to see any mental health professionals after his release, but on second interview said he was willing to see a forensic psychologist. He was also then willing to accept proposed conditions. But he said he would appeal his conviction and then considered his biggest protective factors to be being permitted to maintain contact with serial killers.
6. Dr Youssef also noted Mr Kramer's lengthy history of offending, which he acknowledged, while observing that many of his charges had been withdrawn or did not proceed. He also acknowledged seeking a thrill and rush from his offending, as well as antisocial behaviour which he would have to manage, which he considered might reflect a genetic trait. He claimed not to be impulsive, but a highly premeditated, calculated individual.
7. Mr Kramer did not deny his multitude of charges, emphasising that he had mostly represented himself. He considered that the murder he was convicted of had resulted from poor problem solving on his part, committed at a time when he believed he had nothing to lose, because he thought he had contracted HIV. He denied any domestic violence, claiming the charge he was convicted of had been concocted. His account of the 2012 and 2013 offences included that he had been affected by alcohol on both occasions; a claim that he had no memory of the 2013 offence and insistence that he was the victim on both occasions and that he had not received a fair trial, having represented himself.
8. Mr Kramer had spent 90% of his life since age 24 in custody. For a considerable part of this he had been kept in segregation, having ongoing difficulties with other inmates and staff. He had also been assaulted and threatened with assault. Case notes reflected his problematic, confrontational, disrespectful and intimidatory interactions with staff.
9. Mr Kramer had persisted in his refusal to participate in the violent offenders program, which he considered would increase his potential for recidivism. He had pursued individual therapy with a psychologist for some years and was prepared to pursue such therapy further, if the focus remained on him, but not group therapy.
10. Mr Kramer had some insight into alcohol and negative associates being unhelpful, but not that they posed risk factors. He firmly believed he would not again engage in extreme violence. He had not previously been supervised in the community, but had repeatedly breached conditions of bail. Still, he now considered he would be low risk if released. He was concerned about being prevented from making money and interacting with women.
11. Mr Kramer had refused to interact with community corrections about post release accommodation, which he considered the Attorney General was responsible for finding for him. Dr Youssef was concerned that if this behaviour continued post release, adequately managing him would be difficult.
12. Dr Youssef also explained the difficulty of predicting future behaviour, even using available actuarial tools. She explained the tools she had used. In the case of the violence risk appraisal guide, which had moderate predictive accuracy, Mr Kramer rated the highest category for risk of violent recidivism, with 76% of those in that category expected to meet the criteria for violent recidivism in 5 years and 87% within 12, albeit his actual risk could be higher or lower. These recidivism rates do not discriminate in terms of severity of offending.
13. She considered that the Historical Clinical Risk management tool provided a more comprehensive evaluation of Mr Kramer's risk. It includes 20 risk factors associated with violent recidivism, on three different scales: historical, which do not change over time, clinical, which can be reduced with targeted treatment and risk management, being factors which can aggravate or mitigate risks.
14. Mr Kramer's historical factors were identified to be his history of:

• problems with violence dating back to 1985, with different types of violence engaged in, both reactive and instrumental, targeting a diverse range of victims; and his history of problems with antisocial behaviour since age 13;
• relationship problems, which had resulted in him having unstable relationships; few opportunities for intimate relationships; engagement in domestic violence; relationships with antisocial peers; and a history of tension, interpersonal conflict and emotional distance from his family;
• employment problems;
• substance abuse;
• personality disorder;
• violent attitudes from late adolescence and continuing in custody; and
• problems with treatment and supervision response.

1. The clinical factors Dr Youssef identified included Mr Kramer's ongoing problems with insight into his violence related functioning and his belief that he was at low risk of re-offending; his problems with instability in his mood, especially when he perceived a problem, challenge or obstruction, albeit there had been a marked decrease in his institutional misconduct in recent years; and his recent problems with treatment and engaging with community corrections, perceiving malevolent intentions on the part of others.
2. The risk management factors identified included his apparent future problems with professional services and plans; his living situation; lack of personal supports; treatment, supervision, stress and coping with future life events.
3. Dr Youssef also explained the structured assessment of protective factors for violence risk, which examined individual factors that potentially mitigated an individual's risk of violence recidivism, which has been shown to be a valid and reliable tool for risk assessment and planning. It considered 17 protective factors grouped as internal, motivational and external.
4. Apart from intellectual functioning, Mr Kramer was assessed not to have fully present protectional factors, given his personal history and struggle with coping with self-control in custody. While Mr Kramer planned to work once released, he had no specific goals or plans for work or leisure; and while he had recently agreed he would be assisted by the services of a forensic psychologist, he remained suspicious of staff he will have to deal with.
5. Mr Kramer could only identify one person with whom he has maintained contact and is unlikely to turn to others for support. But Dr Youssef considered that it was imperative for him to develop a support network in the community, to help control his risk factors. She also considered that he needed to be subject to electronic monitoring and a schedule to help provide him with much needed structure.
6. Dr Youssef concluded that if Mr Kramer were to reoffend it was likely to be reactive to a situation where he felt rejected or disrespected, then rapidly escalating to anger and an inability to control his rage. His behaviour then was likely to involve high levels of gratuitous violence and assault requiring the intervention of others, which could involve the use of a weapon. Witnesses and bystanders were unlikely to deter such behaviour towards his victims, who could be male or female, related or unrelated, such violence occurring in the context of a domestic or acquaintance relationship. Substances were not a necessary condition of such aggression, which Mr Kramer could be instrumental in pursuing.
7. Dr Youssef considered that Mr Kramer's coping style oscillates between avoidance and overcompensation, engaging in self-aggrandising and controlling behaviours, to compensate for core unmet needs, he being suspicious of others and mistrusting their motivations as malevolent. His compensatory behaviour is typically aggressive.
8. Dr Youssef concluded that Mr Kramer has an antisocial personality disorder, given his past and present behaviour. He scores highly for psychopathy and also meets the criteria for alcohol and cannabis use disorders. Use of substances would exacerbate his risk factors. He would thus be assisted by psychotherapy and a relapse prevention plan.

Other evidence

1. The purpose of the various proposed conditions was explained by the State in a document and also addressed in the evidence. Mr Kramer's criminal and institutional history was also thereby explained.
2. Ms Najjar's evidence explained Mr Kramer's criminal record, how the proceedings came to be commenced, and the steps taken to obtain relevant information, risk management assessments and reports and counsel's advice.
3. In her 12 July affidavit, Ms Kirkwood explained how Mr Kramer's supervision order would be implemented in practice by the Department's extended supervision orders team, which operates 7 days per week and the Department's Offender Integrated Management System. Mr Kramer is intended to have regular contact with a supervising officer and to have file notes maintained in this system. They are intended to reflect interactions with Mr Kramer, as well as contact with others, including service providers, police, family and third parties and to be used in decision making.
4. The system also provides for case plans, face to face contact, unannounced visits, support and guidance as well as ongoing assessment of the risk Mr Kramer poses and consultation with others about his condition compliance, behaviour and progress.
5. Ms Kirkwood explained the proposed conditions' focus on both the protection of the community and assisting Mr Kramer with support networks and therapeutic interventions, to help give him insight into his risk factors and reduce his risk of reoffending. They thus provide for regular contact and close monitoring.
6. Ms Kirkwood also explained how the electronic monitoring operated, including by the provision of a schedule of movements, with four stages of reducing levels of monitoring, dependent on ongoing risk assessment. Provision is also made for relaxing certain conditions over time, which involves account being taken of the supervised person's views. Other proposed conditions were also explained, including at approved accommodation and various proposed restrictions, including in relation to drugs and alcohol, non-association and weapons, as well as regulation of things like access to the internet and electronic communications.
7. Mr McLachlan's affidavits explained Mr Kramer's accommodation situation and efforts being pursued to obtain other suitable accommodation for him, as well as various institutional information and the risk assessment which had resulted in conclusions reached about the necessity for various conditions, including electronic monitoring. They also explained how complaints about implementation of such conditions can be pursued and annexed reports about Mr Kramer while he was under the interim extended supervision order, including in relation to his attendance at AA meetings; others he had to associate with where he was residing; his internet use, access to social media and the risks of such internet use; and frustrations he was experiencing in trying to transition into the community and what he had to learn.
8. Ms Slattery-McDonald's evidence explained that Mr Kramer is presently accommodated in a facility which provides 24-hour support for high-risk offender residents who require a step down before transitioning from custody into the community. The case workers allocated to the residents help them locate other suitable accommodation. Mr Kramer is working with initial transitional support to help him access other housing. She also explained Mr Kramer's ongoing contact with inmates still serving sentences for murder and attempted murder.

Given the evidence the orders sought must be made

1. I have explained the further evidence relied on to support the making of the final orders sought in some detail, as well as the case Mr Kramer advanced.
2. His position is undoubtedly difficult. He was unrepresented, did not lead any evidence to advance his case and considered himself to be in a procedurally unfair position, which did not allow him to well articulate his case or its basis. That situation was not within the Court's control. But it had the result that there is limited evidence to support the case which he advanced.
3. What the evidence did establish, I am satisfied, is that the safety of the community favours the making of the orders which the State sought, establishing as it does that despite Mr Kramer's views, he does pose an unacceptable risk of further violent offending, especially if not closely supervised in the way the State proposes.
4. Mr Kramer accepts that he has a problem with alcohol abuse, which has caused him to vow never to drink alcohol again and not to advance objections about conditions which go to his alcohol use.
5. Despite his insistence that he does not have a drug abuse problem, his criminal record includes drug offences and, in custody, some history of drug use, albeit he claims he only used prescribed drugs. He also has a long history of offending and incarceration to the point where it must sensibly be accepted that he is now institutionalised. That is consistent with his lack of engagement with steps available to him to take, so that he could be released on parole, and explains the challenges he faces, some of which he explained, in his reintegration into the community.
6. His history of serious offending has unarguably involved considerable and very concerning violence, despite his apparent inability to accept his responsibility for some of the offending of which he has been convicted. It is relevant that while he has also been violent in custody, he has not there committed further offences of serious violence and more recently, such offending has abated. As was his case, he also has a very limited record of domestic violence, with only one offence for which he was fined $500 for breach of an interim AVO order.
7. On the expert evidence not only has Mr Kramer still not accepted his responsibility for his serious, violent 2012 and 2013 offending, he has also been diagnosed to be suffering conditions which it must be accepted contribute to his high assessed risk of further serious violent offending. He also does not accept that he has these problems. Nor did he pursue available courses in custody for such offending.
8. Having considered the various information I have referred to, which is also now in evidence, the experts who assessed Mr Kramer all agree about the high degree of risk of further violent offending which he poses. I am satisfied that their opinions must be accepted, despite Mr Kramer's views about what they are based on. Their opinions, formed after having examined Mr Kramer and undertaken the assessments they explained, albeit with the limitations they discussed, in my view provide an unarguable basis for the conclusion that the statutory satisfaction that he poses an unacceptable risk of such further offending, must be arrived at.
9. But for the views which the experts have reached about how treatment and reintegration into the community will help decrease the risk to the community that undoubtedly Mr Kramer poses, his detention may have continued.
10. It is for Mr Kramer to now make good use of the opportunity which his supervised release gives him. Not only to ensure that he does not engage in further offending and a resulting return to custody, but so that his conditions of supervision can be relaxed to the point where the State will not pursue further applications for his continued supervision. That was its stated aim.
11. It is for Mr Kramer to establish that he does have a sound basis for the belief he claims to have, that even now he does not require such supervision, because he will not offend further. That will be achieved by his ongoing good behaviour and successful, supervised integration into the community he says he wishes to be a part of, rather than continuing to associate only with those who he has so long been incarcerated with.

What conditions should be imposed?

1. In particular issue were some of the conditions the State seeks in order to help ensure the safety of the community and to support Mr Kramer in avoiding further offending and yet another return to custody. It must be accepted that the result of their imposition is control of things which he would be free to do if he was not subject to a supervision order. But that necessarily results, if he is to be released under the type of supervision which statutory scheme envisages.

Conditions relating to drug abuse

1. Mr Kramer opposed conditions relating to prohibited drugs, his case being that his trigger for offending was alcohol, not drugs and that these conditions gave the State the means to control him, including by specifying places he could not go to. However, he also said that he had been given permission to go to Kings Cross, a place well known for drug supply and that he was also housed with others who abused drugs.
2. That does not accord with any improper control or implementation of his current conditions or the conditions potentially exacerbating his risk of re-offending. His account is rather consistent with these conditions operating satisfactorily and Mr Kramer adhering to them.
3. Given Mr Kramer's criminal record and his account of how his current conditions were being implemented, I am satisfied that those proposed should be imposed. That accords with the views of the experts, his criminal record and the evidence which establishes the unacceptable risk which he poses.

Condition 27

1. This condition provides: "The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary."
2. Mr Kramer opposed this, even though he accepted that his criminal record inevitably had to be disclosed to others at times. He said he himself had to do so when explaining his electronic monitoring. But he contended that the State had wrongly disclosed to a friend of over 30 years that he had a history of domestic violence offending, which he did not have, that resulting in his loss of her support. But there was no evidence which supports this.
3. It may be accepted that his supervision and the safety of the community may reasonably at times require disclosure of his record to others. But any disclosure must, of course, be accurate. On the evidence Mr Kramer does have only one conviction for breaching an interim AVO for which he was fined $500.
4. While there is an available procedure for Mr Kramer to pursue if he considers that what is disclosed is not accurate or reasonably necessary, he is also concerned that he will be misconstrued as being aggressive, rather than assertive, as he intends to be when he interacts with those who supervise him.
5. That is not within the Court's control, but could plainly be addressed in various ways, including by Mr Kramer first raising any concern he has with the implementation of any condition, in writing. His concern about disclosure of his record has now been raised in these proceedings and the State accepted should be considered by those with responsibility for implementation of the conditions which will be imposed upon him.
6. Ultimately, it is within the Court's power to vary or remove any condition which it imposes, if it is not operating as intended. That would of course require an application with supporting evidence to be made to the Court.
7. But on the evidence presently before the Court, I am satisfied that this condition should be imposed.

Condition 31

1. This condition provides: "The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information."
2. Mr Kramer opposed this condition in circumstances where written directions had been given, which he understood had the effect that while he was not entitled to associate with antisocial peers, he also could not communicate online with new prosocial friends he made.
3. This was disputed. The written direction he had been given under condition 38, which precludes his access to online services without prior approval, was: "The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi-player video games and other telecommunications-based services including text and voice services You are approved to have the social networking service Facebook, Facebook Messenger, and the online dating application Bumble. You are only allowed to request and/or accept friends on Facebook with whom you have had a previous friendship or have associated with in person. You are only permitted to use video chat via Facebook messenger.
4. The State accepted that this direction could have been better expressed. But it submitted that it was not intended to confine Mr Kramer's online communications to those he knew before the interim supervision order was imposed. The written direction should obviously be revisited to make this clear.
5. Still I am satisfied that conditions 31 and 38 should sensibly be imposed as part of the supervision which Mr Kramer plainly requires, given the risk he poses and his own explanation of what he has had to learn about online communications and the risks which that undoubtedly nowadays involves for everyone in the community, about which he said he is beginning to learn.

Orders

1. For the reasons given: 1. I order pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 3 years. 2. I direct pursuant to s 11 of the Act that the defendant, for the period of the extended supervision order, comply with the conditions attached to this judgment. Schedule of Conditions 13 November 2023 (50959, DOCX)

Amendments 16 November 2023 - Duplication of Cases Cited on the Cover page. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2023