State of New South Wales v Love

THE POSITION OF THE PARTIES

1. The State submitted that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order ("CDO") or an extended supervision order ("ESO").
2. It was contended by the State that outcome is justified because the Court would: 1. Upon the basis that the preconditions in s 5C and s 5Bare satisfied, the Court can be satisfied that the relevant matters alleged in the material filed by the State would, if proved, justify the making of either a CDO or ESO: s 18A(b). The State submitted that the material before the Court supported a finding to a high degree of probability that the defendant posed an unacceptable risk of committing a serious offence if not kept under detention pursuant to a CDO. If so satisfied, the Court should make an interim detention order ("IDO") and order that two experts be appointed to assess the defendant and report back to the Court (assuming the Court also accepts that the defendant's current custody will expire before these proceedings are finally determined). 2. Alternatively, the Court can be satisfied that the relevant matters alleged in the material filed by the State would, if proved, justify the making of a ESO under s 5B of the Act: s 10A(b). If so satisfied, the Court should make an interim supervision order ("ISO") and order that two experts be appointed to assess the defendant and report back to the Court (assuming the Court also accepts that the defendant's current custody will expire before these proceedings are finally determined).
3. The defendant submitted that the test for making an IDO or an ISO is set in ss 5B and 5C as follows: 1. The Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision or detention (as the case may be) under the order (ss 5B(d) or 5C(d) of the Act). 2. The Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence (s 5D of the Act).
4. The defendant opposed the making of an IDO or an ISO. In particular, the defendant did not concede the defendant is an unacceptable risk of committing a serious offence if not kept under an IDO or ISO.
5. The defendant also opposed the making of the orders sought appointing two qualified psychiatrists and/or registered psychologists pursuant to s 15(4) of the Act.
6. However, the defendant accepted the statutory preconditions in s 5B(a), (b) and (c) and s 5C(a), (b) and (c) were met in this case.

Objectives

1. The primary object of the Act is to ensure 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 a CDO or an ESO application: s 17(2) and s 9(2), respectively, of the Act.

Preconditions

1. Section 5C of the Act provides that the Court may make an order for the continued detention of a person if: 1. the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community; and 2. the person is a detained offender or supervised offender (within the meaning of s 13B); and 3. an application for the order is made in accordance with s 13B; and 4. the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
2. Section 5B of the Act provides that the Court may make an order for the supervision in the community of a person if: 1. the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and 2. the person is a supervised offender (within the meaning of s 5I); and 3. an application for the order is made in accordance with s 5I; and 4. the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
3. The index offence is a "serious offence" within the definition in s 4(1) and s 5A of the Act, because it is a "serious violence offence", ie, it involved conduct that caused grievous bodily harm to another person while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person.
4. The defendant is an "offender" within s 4A of the Act because he is above the age of 18 and was sentenced to imprisonment following his conviction for the index offence.
5. The defendant meets the requirement of a "detained offender" because he is in custody serving a sentence concurrently or consecutively, or partly concurrently and partly consecutively, with the sentence for the index offence: s 13B(2)(a)(iv).
6. The application for a CDO has been made within 9 months of the expiry of the defendant's total sentence: s 13B(3)(a).
7. The defendant satisfied the first three requirements of s 5C (and s 5B): 1. he is currently serving a sentence of imprisonment for the index offence; 2. he is a detained offender (or, for the purpose of s 5B, a supervised offender) as, when the application was made, he was in custody serving a sentence of imprisonment for the index offence: s 13B(2)(a)(i); s 5I(2)(a)(i); 3. the application is made in accordance with ss 13B and 5I. It is made in respect of a detained offender (or, for the purpose of s 5B, a supervised offender), while he is in custody and is not made more than 9 months before the end of his total sentence: s 13B(1)(a), (2)(a)(i), (3)(a) and (5); ss 5I(1), 5I(2)(a)(i) and 6(1)).

Relevant Principles: Unacceptable Risk

1. The threshold requirement for making a CDO requires the Court to be satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order. Similarly, the threshold requirement for making an ESO requires the Court to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. The risk is not a general one, but a risk of committing another serious offence.
2. The Court is not required to determine that the risk of an offender committing a serious offence is more likely that not in order to determine that there is an unacceptable risk of the person committing such an offence: s 5D of the Act.
3. As to the relevant principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [34] as being relevant to an IDO or ISO. By way of emphasis or elaboration, two observations may be made.
4. 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 consequences to a victim if particular offending occurs (cf State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (per Harrison J)).
5. Secondly, I accept the passage of the judgment of N 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."
6. Submissions were made by the State that there was different approach in this Court between what was described as a two-stage approach and a one-stage approach in assessing whether there is an unacceptable risk of the defendant committing a further serious offence. However, it was accepted that it was unnecessary to deal with the same in this preliminary hearing.

Preliminary Hearing and Interim Relief

1. The Court may make an IDO if, in proceedings for a CDO, it appears to the Court (s 18A): 1. that the offender's current custody (if any) will expire before the proceedings are determined; and 2. that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO.
2. The Court may make an ISO if, in proceedings for an ESO, it appears to the Court (s 10A): 1. that the offender's current custody or supervision will expire before the proceedings are determined; and 2. that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
3. The first condition is satisfied, because the defendant's sentence will expire on 2 December 2019. I consider that the offender's custody will expire before the proceedings are determined.
4. Some additional remarks may be made regarding the second condition.
5. In State of New South Wales v Lynn [2013] NSWSC 1346 ("Lynn"), Beech-Jones J considered a predecessor to s 7(4) at [17]: [17] Subsection 10B(b) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead it requires a narrower inquiry as to whether what is alleged in that support documentation would, if proved, justify the making of the high risk violent offender extended supervision order. The test for whether an order will ultimately be made is that specified in s 5E(2), namely, satisfaction "to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision".
6. The task of the Court at the preliminary hearing stage is akin to a prima facie case test: State of New South Wales v Manners [2008] NSWSC 1242 at [8]-[9] (per Johnson J) and State of New South Wales v Reay [2014] NSWSC 1362 at [29] (per Button J).
7. A preferable formulation is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J).
8. In State of NSW v Sancar [2016] NSWSC 867, Garling J said this about the nature of the task before the Court (at [74]): [74] This Court is engaged in an evaluative task. This evaluative task requires the Court to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be proved at a final hearing. This includes the expert opinions of Mr Ardasinski. Having done so, the Court must then ask itself whether it is satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
9. The Court is, however, not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of New South Wales v Hampton [2018] NSWSC 360, Lonergan J said at [40]: [40] Whilst it is not my task to predict decision-making at final hearing or to weigh in detail the evidence and make formal findings about that evidence, I consider it necessary to provide some analysis of what seems to be conclusions by Dr Parker that are contradicted or not supported by other material tendered in support of the application.
10. It is nonetheless appropriate to give weight to risk avoidance at this juncture, even though the Court will be best placed to more closely assess the defendant's risk upon receipt of the expert opinions prepared pursuant to s 7(4) of the Act.
11. In State of NSW v Guider [2019] NSWSC 646 ("Guider") at [28] Button J observed: [28] Sixthly, senior counsel submitted that it is not inappropriate for a "risk adverse" approach to be adopted at this preliminary stage. In support of that submission, he relied upon what was said by Bell J in Attorney-General for NSW v Winters [2007] NSWSC 611 (as recently cited in State of New South Wales v Sturgeon [2019] NSWSC 559), and what was said by the Court of Appeal of this State in Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [44] - [46].
12. In Attorney-General (NSW) v Tillman [2007] NSWCA 119 ("Tillman") at [44] (per Mason P and Santow and Tobias JJA), their Honours observed: [44] There is a strong presumption against construing a statute so that it trenches upon a fundamental right such as the liberty of the subject. However, that presumption is weakened in the present context and would not prevail over the clear and explicit language of the statute with its clearly stated protective and rehabilitating objects. Thus s 16 applies where the offender is already in custody and where the claim for final relief is for a continuing detention order. In the instant case, the "supporting documentation" demonstrated that, if proved, the making of a continuing detention order would be justified. Moreover s16(2) and (3) sets the outer limits for the period of any interim detention order and any renewals, namely 28 days maximum for any individual order and no more than 3 months in total with any renewed orders.
13. In determining whether to make an IDO or ISO at the preliminary hearing, it is not relevant to determine which of the two orders sought, CDO or ESO, is likely to be made at the final hearing; an IDO can be made if the Court is satisfied that either order would be justified: s 18A(b). In Tillman the Court of Appeal stated: "it would not be a proper exercise of that discretion, in our opinion, for the Court to make an ISO instead of an IDO simply because the probabilities suggested that an extended supervision order was the more likely (final) candidate" (at [99], referring to what was then s16(1)(b) of the Act).

The Defendant

1. The defendant is presently 29 years of age.
2. The defendant has been assessed as mentally ill and in need of ongoing psychiatric treatment. He is affected by numerous psychiatric and neurological disorders: he has been diagnosed with a severe tic disorder (Gilles de la Tourette's), schizophrenia and may have some form of personality disorder instead of or as well as psychosis.
3. Although there has been improvement in his mental health in recent times, he has poor insight into his mental illness. He is subject to a Forensic Community Treatment Order ("FCTO") made by the Mental Health Review Tribunal ("the Tribunal") on 17 October 2019 (until 16 October 2020).

The Index Offence

1. On 19 February 2016, the defendant committed the offence of recklessly inflicting grievous bodily harm (the "index offence"), contrary to s 35(2) of the Crimes Act 1900 (NSW). At the time of the index offence, the defendant was a prisoner at Parklea Correctional Centre. The defendant admitted to committing the index offence and agreed that there were no prior issues between the defendant and the victim.
2. An account of the index offence is set out in Judge Hanley SC's remarks on sentence: [A]t the time of the commission of the offence the offender was a prisoner at Parklea Correctional Centre. He was serving a term of imprisonment in relation to two counts of malicious damage and resist arrest. His earliest release date was 5 August 2016.This offence occurred on 19 February 2016. He was housed in Area 3C Wing. He returned to his cell door to discover food has been stolen. He informed the prison officers. He was infuriated because they appeared to ignore his complaint. He saw Shane Potts a fellow inmate previously unknown to the offender who was waiting in the buy-up queue in the vicinity of the counter. For no justifiable reason he walked up to the victim and hit him to the side of the face with a closed fist. There is no suggestion Mr Potts was in any way responsible for the theft of the food. The blow caused Mr Potts to fall unconsciously to the ground. He sustained a fractured jaw and a fracture to his neck. HE sustained a T1 spinal process fracture. He received a large number of surgical staples to close a laceration at the back of his head caused as a result of his fall to the ground. He has advised the police he has largely recovered but has sustained a scar to his head which is covered by his hair.
3. Judge Hanley SC sentenced the defendant to imprisonment for 3 years and 6 months (non-parole period of 2 years) for the index offence (commencing on 2 May 2016). The non-parole period expired on 1 May 2018 and the entire sentence expired on 1 November 2019. The defendant was not granted parole by the State Parole Authority of New South Wales.
4. When sentencing the defendant for the index offence on 21 December 2016, Judge Hanley SC found that the index offence was slightly below mid-range in objective seriousness. His Honour stated: It is clear the offender has poor prospects of rehabilitation and is likely to reoffend unless he can address the underlying causes for his continued violent behaviour which appears to be demonstrated by an incapacity to exercise any control over his emotions. Should he be capable of undertaking a programme whilst in custody and on parole… then those prospects will increase.
5. Counsel for the defendant submitted that the index offence "is at the lowest possible range of offences" caught by the Act, in that it involved an act of recklessness rather than specific intent (s 5A(1)). I have taken that consideration into account in reaching my conclusion in this matter.

THE MANDATORY CONSIDERATIONS

1. The State submitted that the matters to which the Court is required to have regard, in ss 9(3) and 17(4), would support the making of the orders sought by it. Those mandatory considerations are considered in turn below.
2. There was no present controversy as to the factual summary provided by the State, even though some issues were raised as to the significance or weight attached to those factual circumstances. The foundation for the assessment of mandatory considerations derives from the State submissions with adjustments to deal with issues raised by the defendant.

Criminal History

1. The defendant has a lengthy history of offending. That history includes, inter alia, the following offences: assault officer in execution of duty; assault occasioning actual bodily harm in company; intimidating police officer in the execution of duty without actual bodily harm; having custody of an offensive implement in a public place; common assault, armed with intent to commit indictable offence and stalk/intimidate with intent to cause fear of physical/mental harm (domestic); and custody of a knife in a public place.
2. The RAR prepared by Mr Ardasinski noted the defendant's criminal history revealed "a clear escalating pattern to his violence". He opined: Since Mr Love's most serious violent offending has involved grievous bodily harm against a relatively random victim, and he has committed violent attacks in the community which have resulted in actual bodily harm, it is possible that future violence could approach the threshold of a "serious violence offence" as defined in the Crimes (High Risk Offenders) Act 2006.
3. Notwithstanding the above criminal history, counsel for the defendant correctly submitted that none of the defendant's other convictions constituted a "serious violence offence" as defined in s 5A of the Act and that the Court must have regard to that matter in assessing risk.

Risk Assessment Report

1. At the outset of the RAR, Mr Ardasinski stated that the defendant was not formally interviewed for the purposes of preparing his report. On 2 September 2019, the date scheduled for interview, Mr Ardasinski approached the defendant in the common area of the Mental Health Screening Unit at the Metropolitan Remand & Reception Centre. On that occasion, Mr Ardasinski formed the view that the defendant was "too mentally unstable at the time" and was therefore "unable to provide informed consent". As a result, his assessment was prepared using file materials only. Counsel for the defendant initially contended that there are, in the absence of a formal consultation, limitations to the report, and any actuarial assessments included therein, prepared by Mr Ardasinski. However, that submission was not pressed for the purposes of this preliminary hearing.
2. Mr Ardasinski assessed the defendant and noted that the defendant fell within the highest range of the Violence Risk Appraisal Guide - Revised ("VRAG-R"); the high risk range of the Violence Risk Scale - Screening Version ("VRS-SV"); the high risk range of the Violent Offending Historical-Clinical-Risk-20 Version 3 ("HCR-20"); and the elevated risk category of the Risk of Sexual Violence Protocol ("RSVP").
3. Mr Ardasinski identified the following to be risk factors for re-offending: major mental illness; poor capacity to deal with stress, emotional dysregulation and maladaptive coping, including use of drugs and alcohol, and marked impulsivity; weapon possession and potential use; feeling aggrieved or disrespected, ruminating on the same and a lack of consideration as to impact of offending on self or others; and sexual preoccupation/hypersexual arousal and hostility towards women.
4. According to Mr Ardasinski, the available records indicate a resistance on the part of the defendant to psychiatric treatment as well significant behavioural issues, including aggression towards correctional staff, damage to property, drug-seeking behaviour, compulsive masturbation and excessive nudity. According to Mr Ardasinski, this "erratic" behaviour evidences his mental instability.
5. Mr Ardasinski identified the following potential protective factors which could work to offset those risks: 1. the defendant has limited family contact, though family members remain supportive of him; 2. community corrections have voiced concerns regarding identifying a stable and suitable residence for the defendant if released unsupervised to the community; and 3. although the defendant maintains some friends, a number of those have been identified as anti-social and therefore are not considered to be protective.
6. Mr Ardasinski opined that based on these assessments the defendant presents as "an overall high risk of violent reoffending relative to other male offenders".
7. He opined: It is unlikely that Mr Love could live in the community offence-free. There is no precedent of him living in the community as an adult and committing serious violent offence in the community. However, he has been medicated with an antipsychotic the past several times he has lived in the community and he is now entirely unmedicated. Given the poor stress coping he has demonstrated from within the relatively supportive and contained environment of the MHSW, I would consider it virtually certain that Mr Love is likely to live in the community without due regard for his risk factors for violence. Without the support and supervision provided by the Department, he may well return to problematic drug use and a new violent offence cold eventuate from a constellation of risk issues combining at the one time in the community, inducing stress.
8. Mr Ardasinski concludes as follows: The overall totality of evidence suggests that Mr Love falls squarely in the High risk category of violent offending relative to other adult male violent offenders. There is a significant risk of impulsive, reactive violence, including serious violence, if he were to be released to the community in his current mental state.

Other Psychological Assessments

1. The defendant has previously undergone psychological assessments, which include, inter alia, the following: 1. On 17 March 2016, the defendant was assessed using the LSI-R and his risk/needs were assessed as falling within the high-risk category for general and violent offending. 2. On 23 November 2016, the defendant was interviewed by Forensic Psychologist, Kathryn Wakely, for the purpose of a psychological assessment. Ms Wakely assessed the defendant as having a high level of risk for recidivism. 3. Counsel for the defendant contended that the Court should place greater reliance on the psychiatric reports of Dr Ma, Forensic Psychiatrist and the joint report of Dr Haque, psychiatric Registrar and Dr Sharma, Forensic Psychiatrist who have all been involved in assessing the defendant in custody and who have provided on-going treatment in custody and presented their opinions before the Tribunal on 17 October 2019. If that submission is intended to suggest that greater weight should be placed upon those opinions to that of Mr Ardasinski then I would not accept the submission. There is no proper basis for doing so in this preliminary hearing. Mr Ardasinski's report is thorough and that of an experienced senior psychologist. The opinions as to risk were properly derived from risk assessment instruments and are not inconsistent with previous opinions. It may also be noted that Dr Haque confirmed a long history of schizophrenia and that the defendant was mentally ill.

Report prepared by Corrective Services NSW

1. In the RMR, Ms Robinson indicated that it will be greatly difficult to manage the defendant in the community, given his risk factors, his mental state and the need for him to take and complete appropriate psychiatric treatment. The RMR also stated that the "implementation of structured post release plans continue to be hampered by Mr Love's resistance to intervention, including inconsistent compliance with mental health medication, unaddressed substance abuse issues and lack of cooperation during the interview process".
2. As to the defendant's response to supervision, Mr Ardasinski identified instances in the past where the defendant's response to supervision has been unsatisfactory, including failure to undertake treatment intended to address his mental health and drug and alcohol issues. He also opined: 1. if subject to a CDO, the defendant could be detained within a specialised mental health unit within a correctional centre to receive assertive psychiatric treatment, which "may moderate his risks of further mental health destabilisation and staff would be able to monitor risk to other inmates and stabilise him over several months"; and 2. "In the event that Mr Love is subject to an Extended Supervision Order (ESO), it is likely that he would be subject to strict monitoring, intensive supervision and case management by CSNSW, along with oversight from a community mental health treatment team. His post-release housing would need to be suitable, and approved by Community Corrections".
3. As at the time of the preliminary hearing, the State noted that CSNSW had not been able to find any suitable post-release accommodation for the defendant (if released on 2 December 2019). These difficulties were set out in the affidavit of Ms Grabham.
4. Additionally, the psychiatric report to the Tribunal prepared by Dr Shweta Sharma dated 16 October 2019, as part of that application for the FCTO, acknowledged that the defendant does not have any stable post-release accommodation.
5. Counsel for the defendant conceded that the RMR outlines that there is presently no accommodation deemed suitable in the community for the defendant.

Treatment and Rehabilitation Programs

1. The defendant has not completed any treatment or rehabilitation programs since committing the index offence. Mr Ardasinski states that the defendant has resisted participation in such programs.
2. The defendant was referred to the EQUIPS program in late 2015/early 2016 but did not complete the program because, at the time, there was insufficient time to complete the program before his sentence expired (at that time, expected to be August 2016).
3. Counsel for the defendant submitted, notwithstanding the defendant's resistance to participation, neither the VOTP nor EQUIPS program are suitable for the defendant as he is a person who has current psychiatric symptoms of a serious mental illness. In particular, it was submitted, he has been diagnosed by two psychiatrists as a mentally ill person for the purpose of s 14 of the Mental Health Act 2007 (NSW). It was further submitted that the Court would not place significant weight on the defendant's reluctance to participate in programs in custody as the defendant's mental health issues substantially (if not, completely) inhibit his ability to have any insight into the potential value of any such course. That submission may be accepted so far as it illustrates that the defendant was not merely or obstinately resisting steps towards his treatment and rehabilitation the non-attendance highlights the lack of mitigation of risks by such treatments or rehabilitation.
4. On 29 July 2019, Dr Tessa Daws opined that the defendant was a mentally ill person. An order was made to transfer the defendant from a correctional facility to a mental health facility to facilitate a period of involuntary treatment, pursuant to s 55(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
5. During the early parts of September 2019, the defendant's mental health deteriorated. His worsening mental state was compounded by his refusal to take his medication.
6. In the RAR, Mr Ardasinski suggested that the defendant would be unsuitable to participate in any group programs in his current mental state due to risks to other inmates.
7. Counsel for the defendant contended that any psychiatric treatment or cognitive behavioural therapy directed at addressing the defendant's offending behaviour should occur in the context of his therapeutic care and management under the Mental Health Act through a Community Treatment Order ("CTO") or as an involuntary patient in the immediate future. As counsel conceded, however, that type of consideration is typically accompanied by expert opinion which is not presently available.

Compliance

1. The defendant's bail record reveals multiple instances of non-compliance with bail conditions. Given this history of non-compliance with bail conditions, his significant history of previous offending, his disciplinary issues whilst in custody and his mental health issues, the State submitted there is limited basis to conclude that the defendant would comply with the obligations of an ESO.
2. Mr Ardasinski noted the defendant's response to supervision has previously been described as poor. He refers to reports on file, one of which provides: Mr Love's response to supervision has been unsatisfactory. He fails to accept the supervision and guidance of Community Corrections, and fails to undertake treatment in regard to mental health and drug and alcohol issues.
3. As to the same, counsel for the defendant advanced submissions with respect to the FCTO currently imposed to ensure the defendant's compliance with his medication whilst in custody. Reference was made to the report of Dr Ma, who stated that if the defendant was released prior to the expiration of that order, the psychiatric case manager or delegate would transfer the care of the FCTO to the defendant's nominated community mental health team. In that light, it was submitted: 29. In the event that an IDO were not made by the Court, then the FCTO could be transferred to a CTO by arrangement of the treating team with the defendant's local Community Mental Health Team ('CMHT'). Upon transfer to a CTO the CMHT would be responsible for managing the CTO in the community. If the defendant were to be released on a CTO into the community, the CMHT could initiate breach action in the event that the defendant did not comply with the CTO, for example with his depot medication. Such breach action would result in the defendant's detention as an Involuntary Patient in accordance with s 14 MHA. 30. The MHRT - Civil Division would oversee the defendant's care under the CTO or as an Involuntary Patient.
4. Counsel for the State submitted that release to a CTO without any kind of supervision would be inadequate. The defendant was hesitant to take medication and was unlikely to continue his depot injections. Without such medication the risk significantly increased. The CTO response appears to be relatively slow and there is no power over accommodation. That was a crucial issue for safe release to the community. The defendant's period of stability is relatively brief and the subject of an FCTO.
5. There is some force to those submissions, but as earlier mentioned, the Court would ultimately be better assisted by expert opinion as to the particular arrangements which may be suitable in the future having regard to the defendant's circumstances.

Behaviour in Custody

1. The defendant has exhibited significant behavioural issues while in custody, having been involved in 53 incidents which resulted in institutional misconduct charges. These include 18 charges for intimidation, 7 charges for assault and 4 charges for fighting. Some of those disciplinary incidents are referred to below: 1. On 18 July 2018, while in custody, the defendant was charged with assaulting a law officer (not a police officer). The offence occurred on 24 February 2018 and involved the defendant spiting on a Correctional Centre Officer. The defendant was convicted of the offence and sentenced to 4 months imprisonment. 2. On 15 November 2018, while in custody, the defendant was charged with assaulting a law officer (not a police officer). Again, the incident involved spitting at a law enforcement officer. The defendant was sentenced to 6 months imprisonment. 3. On 30 April 2019, while in custody, the defendant was found in possession of two gaol made weapons. The defendant was found guilty of being in possession of an offensive weapon or instrument and was placed in segregated custody. The defendant was moved from Goulburn Correctional Centre to High Risk Management on the same date.
2. Mr Ardasinski states that this conduct is academically linked to recidivism.
3. As to the defendant's poor behaviour in custody, counsel for the defendant contended that the majority of the institutional infractions that have occurred while the defendant has been custody have occurred at a time when the defendant was not treated for his mental illness. It was also noted, there are no Justice Health records, save for a note that the defendant ceased his medication in custody in 2017, that suggest the defendant was in fact prescribed medication prior to that time during that period of incarceration.

CONCLUSION

1. In my view, the matters alleged in the supporting documentation before the Court in this preliminary hearing would, if proved, justify the making of a CDO for the following reasons: 1. The material supports a conclusion that the defendant poses an unacceptable risk of committing a serious offence if not kept in detention or under supervision because: 1. Considerable weight should be given to Mr Ardasinski's RAR and assessments derived from clinical, actuarial and professional risk assessment tools. Those assessments suggest a high risk of violent reoffending. The conclusion reached in the RAR after dynamic assessment of the defendant's crimogenic needs and risk scenarios was that the defendant fell within the high risk category of violent offending relative to other adult male violent offenders. There is a significant risk of impulsive, reactive violence including serious violence. 2. It is true that the only serious violence offence in the defendant's criminal record was the index offence, which was at the lower end of seriousness for that offence and that the risk assessment deriving from the tools used by Mr Ardasinski does not delineate specifically a serious violence offence. However, that critique suffers from its own limitations. First, whilst the index offence involved a charge of recklessness, the consequences of the offence was, if considered as part of an evaluation exercise, relevant to risk. Similarly, the nature of the defendant's actions in relation to the offence of assault occasioning actual bodily harm may have easily resulted in more severe consequences. Mr Ardasinski opined that the defendant's most likely scenario for further offending would involve him assaulting a stranger or an associate due to him feeling emotionally dysregulated as a result of a grievance. He may be carrying a knife which would increase the risk of lethal violence and he has used his feet in assaults. Mr Ardasinski opined that no weapon was used in the defendant's violence in custody but he had been markedly unstable and remained "a grave risk of serious violence in the community". It may be noted in that respect that the defendant was recently found in possession of a sharpened half can opener secreted in his cell mattress. Mr Ardasinski's opinion must be seen as a combination of clinical assessment assisted by the use of tools, albeit that he is yet to interview the defendant due to his state of mental illness. 3. The defendant has been assessed as a "mentally ill person". In early September, his mental health deteriorated and on 12 September 2019 he was transferred from to the Mental Health Screening Unit of Long Bay Hospital, for the purposes of involuntary treatment with medication, following an order under s 55(1) of the Mental Health (Forensic Provisions) Act. Whilst in Long Bay Hospital, the defendant was treated for schizophrenia, anti-social personality disorder and substance disorder. He was administered a long acting injectable medication. Although his mental health has improved as a result of that treatment, he continues to have poor insight into his mental illness and treatment needs and he remains at risk of poor compliance (with his medication regime) and relapse. 4. Noting my previous observations as to the true significance of the defendant not having completed treatment of rehabilitation programs, it is relevant that he has not undertaken such programs. The RAR stated that "in his current mental state, Mr Love would be unsuitable for consideration to participate in group programs due to his risk to other inmates and unstable mental health…". 5. The defendant has committed further offences whilst in custody since he committed the index offence. 1. Those factors justify the making of a CDO or ESO particularly when combined with the obligation of the Court to treat as paramount consideration the safety of the community. In that respect, the following factors are additionally relevant: the index offence was committed whilst the defendant was in custody; the defendant's risk factors and criminogenic needs and his poor response to supervision and incidents of aggression in custody. I accept the submissions of the State that the material reveals obvious and entrenched criminogenic needs and mental health issues which bear on the risk of offending and he is not being adequately treated and may relapse. 2. It may not be properly concluded on the material before the Court that the recent progress of the defendant on medication has resulted in stabilisation of his mental health. The defendant continues to have poor insight into his mental health needs. There is a real risk he will not comply with treatment and will relapse. The material before the Court does not permit a conclusion that an FCTO will adequately alleviate those risks. Expert opinion will no doubt address whether community health services may adequately manage the defendant's behavioural issues. There must be presently some real doubt in that respect.
2. The aforementioned conclusions, when considered in the light of two particular factors mentioned below, warrant the conclusion, as sought by the State, that there are strong discretionary reasons for the Court favouring the making of an IDO. Those factors are as follows: 1. There is no suitable post-release accommodation available for the defendant. That is a significant factor in favour of the making of an IDO (at least until such time as the Court can have the benefit of two independent expert reports). As noted above, the defendant does not meet the eligibility criteria for many accommodation service providers. Nor are any of his nominated family/friends suitable to house him. The need for suitable accommodation was also alluded to in the report prepared in aid of the application for a FCTO. 2. As mentioned above, the improvements in the defendant's mental health and stability are recent and then only under a supervised mental health treatment regime. 3. The nature of the risk as I have described above.
3. The Court shall then grant the IDO sought by the State together with an order pursuant to s 15(4) of the Act, albeit one, by agreement, appointing two qualified psychiatrists. I will also grant proposed order 8.

DIRECTION

1. The Court orders that the State shall bring in short minutes of order reflecting this judgment by 4pm on Friday, 29 November 2019. 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: 29 November 2019