State of New South Wales v Lynn

The Legislative Scheme

1. The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation. Although when the Act first commenced both of these objects were given equal status, following amendments in Schedule 1 of the Law Enforcement and Other Legislation Amendment Act 2007 (NSW), the primary object of the Act is the safety and protection of the community alone.
2. The State's primary application is for Mr Lynn to be placed on a CDO. Section 5C of the Act provides that this Court may make a CDO if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme 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.
3. It is uncommon for there to be any dispute as to whether the first three of these statutory criteria are met.
4. Firstly, the person must be an "offender" who is serving (or who has served) a sentence of imprisonment for a "serious offence" and must be either in custody or under supervision in the community: s 5C(a). "Offender" is defined in s 4A of the Act as a person who is at least 18 years of age and who has at any time been sentenced to imprisonment for a "serious offence". "Serious offence" is defined in s 4 as including a "serious sex offence" and/or a "serious violence offence".
5. Section 5A(1) of the Act provides the definition for a "serious violence offence". It is in these terms: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).
6. Section s 5A(1) does not prescribe specific offences under the Crimes Act 1900 (NSW) which are captured by the term "serious violence offence". Rather, it lists certain elements of such offences which must be present in order to satisfy the statutory criteria of a "serious violence offence". The physical element is an act causing death or grievous bodily harm. The mental element is to either intend or be reckless about causing death, grievous bodily harm or actual bodily harm.
7. The second condition under s 5C of the Act is that the person must be a "detained offender" or "supervised offender" within the meaning of s 13B of the Act. A "detained offender" is an offender who, when the application for a CDO is made, is inter alia, in custody on a CDO (s 13B(2)).
8. The third condition under s 5C is that the application for the CDO must be made in accordance with s 13B of the Act. Section 13B(1) relevantly provides that an application can only be made in relation to a "detained" offender. Section 13B(3)(b) of the Act relevantly provides that an application for a CDO in respect of a detained offender may not be made more than 9 months before the expiry of the existing CDO.
9. The evaluative task the court is required to undertake is the fourth condition under s 5C of the Act. Before a CDO can be made the Court must be "satisfied to a high degree of probability" that the defendant poses "an unacceptable risk of committing another serious offence if not kept in detention under the order". It is to be noted that s 5D provides that 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.
10. The making of a CDO is discretionary. Under s 17(1) of the Act, the Supreme Court can dispose of a CDO application in one of three ways: by making a CDO, by making an ESO or by dismissing the application. Section 5B of the Act provides that this Court may make an ESO if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."
11. In determining whether or not to make a CDO or an ESO, the safety of the community is the paramount consideration: s 17(2). A number of further mandatory considerations are provided for in s 17(4). Under s 17(4), the Court may regard any matter it considers relevant but must take any relevant the matters enumerated at s 17(4) (a)-(i). I shall consider these mandatory requirements further below.
12. The Act commenced on 3 April 2006 (under a previous name) and the relevant provisions have been judicially considered on numerous occasions since then. When the Act was amended again, effective from 6 December 2017, the statutory test for determining whether an offender could be placed on a CDO was changed. I have considered those changes in State of New South Wales v Jones [2018] NSWSC 459 at [15]-[31], State of New South Wales v Barrie (Final) [2018] NSWSC 1005 at [21]-[32] and State of New South Wales v Russell (Final) [2020] NSWSC 396 at [33]. I am satisfied that the structure of the Act suggests that two separate decisions are required by the Court when considering a CDO application. The first test is whether a CDO could be imposed: s 5C of the Act. If that first test is satisfied then the second test is whether, having regard to the mandatory considerations in s 17, a CDO would be imposed.
13. Section 15 of the Act sets out the relevant pre-trial procedures for an application for a CDO. Relevantly, s 15(3)(4) provide as follows: 3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (Emphasis added.)
14. Section 18A of the Act provides that this Court may make an order for an IDO if it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order. (Emphasis added.)
15. Thus, the statutory test to be applied at the preliminary hearing in order to determine whether the application should proceed to a final hearing is whether it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO. It is only if that test is satisfied that I would make the orders sought at the preliminary hearing regarding the appointment of experts and the making of a 28 day IDO.

The Supporting Documentation

1. The State relied upon the affidavit of Jonathan Vasiliou sworn on 3 July 2020 (the plaintiff's solicitor) with Exhibit JV-1 and the Offender Integrated Management System ("OIMS") notes for the period 4 June 2019 to 11 March 2020 with additional notes for the period 16 April 2020 to 18 June 2020 tendered at the hearing. The exhibit included documents in relation to Mr Lynn's criminal history, risk assessment reports, psychological and psychiatric reports, previous high risk offender applications and OIMS notes.
2. The defendant relied upon the affidavit of Hayley Le affirmed on 6 August 2020 (the defendant's solicitor) which set out further details about Mr Lynn's delayed entry into the VOTP program early this year
3. Both counsel provided helpful written submissions prior to the hearing.
4. Given that I must have regard to the s 17(4) factors, I propose to briefly summarise the supporting documentation under those headings and then turn to consider the question of the appropriate orders in this matter. Before I do so, it is helpful to commence with a brief summary of Mr Lynn's background. I have taken the following summary from the decision of Ierace J at [13]-[15] : "The defendant's background, as gleaned from forensic and court reports, is to the following effect. He is the younger of two siblings, the other being a sister, two years older than him. He was born in Tamworth. His parents separated when he was aged eight and he and his mother moved to Sydney. It appears that there was some verbal and physical violence in the context of the break-up. When aged 13, he started living with his father. His lifestyle was itinerant; he claimed to have attended three different primary schools and five different High schools, leaving in Year 9, apparently expelled for fighting. He obtained his Year 10 Certificate through TAFE. His father died of natural causes in 1997. When aged 14, he formed a relationship with a girl who was a year older, and moved out with her about two years later. The defendant and his partner had two children, born in 1992 and in 1997. He lived with her until her suicide in 1999. Thereafter, their children were cared for by their maternal grandmother. He has admitted using cannabis and heroin since the age of about 14 and heroin intravenously for the first time when aged about 17. He also used steroids at about that time. He has admitted to amphetamines being a drug of choice in his teen years. There is evidence from drug tests that he has used amphetamines in recent years, as well."
5. Mr Lynn's mental state has been assessed on a number of occasions over the years. He was diagnosed by Dr Edward Tan on 25 August 1994 as "suffering from Personality Disorder with explosive tendencies and an associated Reactive Depression". Although subsequent reports have consistently diagnosed him with various personality disorders and a substance abuse disorder, he has never been diagnosed with a mental illness. I will discuss some of these assessments further below.

The offender's criminal history and any pattern of offending behaviour disclosed by that history: s 17(3)(h)

1. At the hearing, the State provided a chronology of the defendant's offending taken from the decisions of Hidden, Button and Ierace JJ and the applicant's criminal history. No objection was taken to that chronology on behalf of Mr Lynn. It reveals the following.
2. In December 1996, Mr Lynn was visiting his de facto partner at a residential drug and alcohol facility where he fell asleep. On being awakened, he became aggressive and threw a clock at the wall. This happened in the presence of a female staff member. When a male resident intervened and tried to get him outside the premises, Mr Lynn kneed him in the groin, punched him in the face and pushed him into the front wall of the premises, causing a hole in the fibro. He was then pushed into a glass pane window, which smashed. People came to the victim's aid and the two men were separated. Mr Lynn was seen shortly afterwards threatening other people with a knife. This led to a conviction for common assault, for which he was placed on a bond.
3. In July 1997, Mr Lynn was seen stealing clothing from a department store and when a security staff confronted him he responded aggressively and ran from the store. When he was apprehended by another employee, Mr Lynn picked up a pair of scissors from a desk and threatened staff with them before leaving.
4. In August 1997, Mr Lynn was seen stealing items from a department store and attempted to strike a security officer. He produced a folding knife from his clothing and unfolded the blade. To avoid being stabbed, the officer kicked him in the chest. Other officers came and restrained and handcuffed Mr Lynn. That led to his conviction on two counts of common assault.
5. In October 1998, Mr Lynn was staying at a hotel at Tamworth. Three police officers entered his room and he assaulted them by pushing one of them into a television set, charging at another, and kicking two of them as he was restrained and handcuffed. He was convicted of assaulting police and sentenced to imprisonment for 16 months, comprising a minimum term of 4 months and an additional term of 12 months.
6. In March 1999, Mr Lynn stole items from a clothing store and when two men tried to detain him he assaulted them. He was charged with two counts of common assault.
7. In February 2000, Mr Lynn was seen to be stealing items from a department store and, when a security officer approached him, he threatened to stab the officer with a syringe. He was convicted of using an offensive weapon to prevent his lawful apprehension and sentenced to imprisonment for 2 years with a non-parole period of 12 months.
8. In October 2002, Mr Lynn's cell was searched and a metal object described as a "shiv" was found.
9. In June 2002, Mr Lynn had an argument with his sister's partner. He produced a knife and the victim, fearing that he would be stabbed, struck the defendant with a broom handle. The defendant then picked up a tomato stake and struck the victim with it several times, causing lacerations to his chest and arms. He was convicted of assault occasioning actual bodily harm and sentenced to imprisonment for 9 months.
10. In June 2003, Mr Lynn threw a bottle at a taxi. When the driver got out of the car to inspect the damage, Mr Lynn threatened him with a knife. He also grabbed a bottle and broke it (so that it had jagged edges), and approached the taxi driver, who feared that he was to be stabbed. Mr Lynn desisted when another person drove a vehicle towards him, causing him to step back onto the kerb. Soon afterwards, while still carrying a knife, Mr Lynn got into an argument with a woman and slapped her across the face. When a man intervened on behalf of the woman, Mr Lynn threatened to kill him and another person. He picked up a number of beer bottles and threw them at one of those persons, hitting him on the head and, while wielding a knife, threatened another man who intervened. Police arrived and Mr Lynn threw the knife away and ran, but was arrested after a struggle. As a result of this incident, he was convicted of using an offensive weapon with intent to commit an indictable offence, and a number of charges of common assault, a charge of having custody of a knife in a public place. Other related charges were taken into account on a Form 1.
11. In December 2004, Mr Lynn had an altercation with his uncle and threatened to kill him. He was charged with common assault.
12. In January 2005, Mr Lynn was found to have broken into his grandmother's home. When his uncle said that he would call the police, Mr Lynn threatened to kill him. Mr Lynn followed his uncle when he walked outside prompting his grandmother to call out that he had a knife. Mr Lynn, who was holding "an object" in his hand, confronted his uncle and when the uncle asked him to leave, Mr Lynn threatened him, pushed a finger into his nose and spat in his face. Mr Lynn's grandmother and the uncle reported the incident to police and when two officers arrived at the house Mr Lynn assaulted one of them and fled. He was arrested three days later and charged with common assault and assaulting police.
13. In September 2005, Mr Lynn was found in possession of a knife at Parklea Correctional Centre and was charged with possessing an offensive weapon for which he received a fine.

The index offence

1. On 7 November 2008, Mr Lynn was sentenced for manslaughter. The offence was committed while the defendant was on a good behaviour bond. He was sentenced to 7 years imprisonment commencing on 18 August 2006. He was eligible for parole on 18 February 2011.
2. The facts of the offence were summarised by Hidden J in R v Scott David Lynn. Mr Lynn and the victim had encountered each other outside Hungry Jacks in Parramatta, where the victim was standing with Mr Grant Kelly. There was an exchange where the statement "I will kill you, motherfucker" was attributed to the deceased, with Mr Lynn replying "not if I get you first". As documented in his Honour's judgment, the following events occurred: "The offender reached over Kelly's shoulder and stabbed the deceased once, very quickly, at the base of the neck above the collarbone. He then ran west through an alleyway adjacent to Berg's Hobby Store into a rear car park. The deceased staggered after him for a short distance before returning to the front of the hobby store, where he started coughing up blood in the presence of Ms Kellaway and two passers-by. He was laid on the ground, and ambulance officers attended. He was removed to Westmead Hospital, where he died from his injury before midnight."
3. Mr Lynn was tried for murder but the jury was unable to agree on a verdict. He then entered a plea of manslaughter. Manslaughter is a "serious violence offence" because "a plea of guilty to manslaughter based upon excessive self-defence implicitly accepts that there had been on the part of the offender an intention to kill or inflict grievous bodily harm": State of New South Wales v Lynn [2013] NSWSC 1147, Button J at [9].

Custodial record after manslaughter sentence imposed

1. In 2009, Mr Lynn undertook 24 sessions of the CALM program (Controlling, Anger and Learning to Manage it) whilst in custody.
2. In March 2010, Mr Lynn attended the Violent Offender Therapeutic Program ("VOTP"). This is a program aimed at reducing the chance the violent offenders will re-offend. It will be discussed further below at [123].
3. In July 2010, Mr Lynn was removed from the VOTP for poor progress and was charged for fighting within the unit.
4. In October 2010, Mr Lynn recommenced the VOTP.
5. In December 2010, Mr Lynn was removed from the VOTP for poor commitment.
6. On 17 February 2013, Mr Lynn was released on parole (two years after the expiration of his non-parole period).

Post release conduct

1. On 31 May 2013, Mr Lynn's parole was revoked because of his inability to adapt to normal community life, his drug use and failure to obey directions.
2. On 15 August 2013, following a preliminary hearing, Mr Lynn was placed under an interim supervision order by Button J.
3. On 17 August 2013, Mr Lynn's manslaughter sentence expired.
4. On 17 December 2013, Hidden J ordered that Mr Lynn be subject to an ESO for a period of 3 years.
5. On 7 May 2014, Mr Lynn was charged for a breach of the ESO and received a sentence of 5 months imprisonment to date from 15 May 2014. He returned positive urinalysis in March and April 2014 and in April 2014 he removed his electronic monitoring anklet.
6. On 14 October 2014, Mr Lynn's 5 months sentence expired.
7. On 12 December 2014, Mr Lynn was charged with a breach of the ESO for alleged drug use. Following his release on bail on 19 December 2015, he returned a positive urinalysis in January 2015 and was arrested on 15 January 2015. Mr Lynn was convicted on 6 July 2015 for schedule breaches and not following reasonable directions. He received a 6 months sentence to date from 19 December 2014.
8. On 18 June 2015, Mr Lynn's 6 month sentence expired.
9. On 2 January 2016, Mr Lynn was charged with three counts of breaching the ESO for diverting from his place of residence and failing to charge his electronic monitoring unit. He received a sentence of 11 weeks imprisonment to date from 2 January 2016.
10. On 4 February 2016, while he was in custody, a further charge of breaching the ESO was brought against Mr Lynn, for which he received a sentence of 3 months imprisonment to date from 7 March 2016.
11. On 18 March 2016, Mr Lynn's 11 week sentence expired.
12. On 23 March 2016, Mr Lynn was charged with a drug offence and two further breaches of the ESO and received a sentence of 1 month imprisonment to date from 7 March 2016
13. On 6 April 2016, Mr Lynn's sentence of 1 month imprisonment expired and on 6 June 2016, Mr Lynn's sentence of 3 months imprisonment expired.
14. On 22 June 2016, Mr Lynn was charged for breaching the ESO and sentenced to 12 months imprisonment to date from 22 June 2016 with a non-parole period of 9 months to expire on 21 March 2017.
15. On 21 March 2017, Mr Lynn was released on parole and his ESO recommenced.
16. On 16 April 2017, Mr Lynn was charged with affray, assault occasioning actual bodily harm and breach ESO. These offences were committed on 15 April 2017.
17. On 28 July 2017, Mr Lynn was sentenced to 1 month of imprisonment for a breach of his ESO to date from 28 July 2017.
18. On 27 August 2017, Mr Lynn's 1 month sentence expired. He was on bail with respect to the 16 April 2017 offences.
19. On 29 November 2017, Mr Lynn breached the ESO for which he was sentenced to imprisonment of 4 months to date from 12 January 2018 and expiring on 11 May 2018.
20. On 11 December 2017, Mr Lynn was granted bail and his ESO recommenced.
21. On 26 January 2018, Mr Lynn breached his ESO and was charged with resist or hinder police, for which he was sentenced to imprisonment of 6 months to date from 26 January 2018 to 25 July 2018.
22. On 4 June 2018, Mr Lynn was sentenced for the offences committed on 15 April 2017. Following a severity appeal, Mr Lynn received a sentence of imprisonment of 18 months to date from 4 March 2018 with a non-parole period of 12 months to expire on 3 March 2019. The assault occasioning actual bodily harm charge involved Mr Lynn "fighting the neighbour who had picked up a spirit level with a metal pole and subsequently hitting him over the head, causing the neighbour to drop to the ground, where the defendant then repeatedly assaulted him using his fists and knees".
23. On 28 February 2019, Mr Lynn's release to statutory parole was revoked by the State Parole Authority.

Other offending behaviour

1. Through his various periods in custody between 1992 and 2013, Mr Lynn was dealt with for 54 misconduct charges, with eight of them being for violent conduct (described either as "fighting" or "assaults"), and seven of them being for aggressive behavior (described as "intimidation", "threatening behavior", or "threatening" or "abusive" language). In 2002, he resisted an attempt by two officers to move him to another wing. He bit one of them on the arm. In October 2006, while he was in custody in respect of the manslaughter charge, Mr Lynn attempted to strike another prisoner with a sharpened metal object.
2. The OIMS notes reveal that Mr Lynn was observed to engage in a physical fight with another prisoner just two days before his release to parole.

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 17(3)(h1)

1. Hidden J sentenced Mr Lynn on 7 November 2008 for the index offence: R v Scott David Lynn [2008] NSWSC 1122. When considering the objective gravity of the offence, his Honour noted that although the manslaughter of the victim was an overreaction to a perceived threat, the offence was aggravated by the presence of a weapon. On the question of remorse, his Honour noted that: "While I have questioned the extent of the offender's remorse for this crime, I do not think that he is devoid of it. Rather, as I have said, I believe that he lacks appropriate insight into his criminality on this occasion, as he does in relation to past offences. This is something which might develop with counselling. It may be that the tragic consequences of the present offence, which is so much more serious than anything in his criminal history, will set him on that course. It is this, together with the support of his family, that persuades me that his rehabilitation should be encouraged by a finding of special circumstances warranting a departure from the usual proportion between sentence and non-parole period."
2. Earlier, when addressing Mr Lynn's subjective case, his Honour had set out Mr Lynn's previous convictions, which had mostly been dealt with in the Local Court and involved violence and dishonesty, together with drug and driving offences. His Honour stated that: "Generally, he did not present as a person prepared to accept full responsibility for his wrongdoing on the occasion in question or in the past. This was also the assessment of the author of the pre-sentence report, who had reviewed his contact with the Probation and Parole Service since 1995. The officer wrote that his response to supervision in the past had "generally been lacking and characterised by failing to address his offending behaviour and re-offending." Nevertheless, he had told the officer that he was willing to undertake counselling upon his release and he was reported to be "suitable for a high level of intervention by this Service, commensurate with the assessed risk".
3. His Honour found special circumstances on account of Mr Lynn's need for rehabilitation.

The expert evidence: s 17(3)(c)

1. Section 14(3)(b) of the Act provides that an application must include a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) "that assesses the likelihood of the offender committing a further serious offence".
2. A report said to comply with that requirement was prepared by Dr Richard Parker and Ms Chence Cieplucha on 2 June 2020. That report is headed "Risk Assessment Report" ("the 2020 RAR"). Those authors also prepared the RAR that was before Ierace J dated 11 April 2018 ("the 2018 RAR"). In addition, two court appointed experts provided reports and gave evidence before Ierace J: Dr Collins and Dr Furst.

The 2018 RAR

1. The 2018 RAR was completed by Dr Parker and Ms Cieplucha. It canvassed Mr Lynn's family and employment, response to community supervision, psychological state, drug and alcohol use and risk assessment. In particular, it noted that Mr Lynn had refused offers of accommodation that were not in the inner city and had been declared an "unsuitable tenant" by Housing NSW. He further noted that Mr Lynn had an "unusual" pattern of communication and appeared to misinterpret comments by others. He would also generally assume a hostile interpretation of other people's actions.
2. Dr Parker further noted that while Mr Lynn seemed to have built a good rapport with the psychologists, he did not appear to have made any progress in addressing his basic stance towards society and had not addressed the underlying thinking. The 2018 RAR concluded the following: "Mr Lynn is a person with a complex personality structure. He has extremely rigid thinking patterns, which border on psychotic. At the heart of those patterns is an extreme self-centredness, where other people's views and well-being are consistently ignored in favour of his own interpretation of the world. Coupled with this is a pattern of thinking that perceives the world as a dangerous place, which requires him to adopt an aggressive stance towards the world. As has happened with the index offence, this could involve serious violence." (Emphasis added.)
3. When addressing Mr Lynn's individual counselling sessions as part of the VOTP and the potential for Mr Lynn to complete the program fully, Dr Parker commented: "As a general rule, completion of VOTP would require a custodial sentence of at least 14 months, including time for referral and assessment. However, given Mr Lynn's previous history with VOTP and his lack of cooperation with community supervision, a significantly longer period of time would be required for him to have a reasonable prospect of completing the program. Until, and unless, Mr Lynn develops thinking which enables him to follow society's rules, and feel good about that, he will remain at high risk for future violent offending. He will also continue to be very difficult to manage under supervision and pose a risk to supervising staff. In the event that Mr Lynn is subject to a [CDO], he would be able to complete the VOTP, although he may well refuse to do so Even if he does complete the VOTP, given the intensity of his criminal thinking, I consider it unlikely that the VOTP will significantly alter that thinking He would then require ongoing intensive supervision and maintenance treatment to reduce his risk of reoffending." (Emphasis added.)
4. Overall, Dr Parker stated that Mr Lynn was at a high risk of further violent offending. He noted that, at the time of the report, ESO staff were unable to insist upon Mr Lynn living in appropriate accommodation, unable to persuade him to adopt a more regular, prosocial, lifestyle and were restricted in their ability to conduct field visits and drug tests.

Dr Collins report dated 25 March 2019

1. Dr Collins is a psychologist who made attempts to interview Mr Lynn on 18 January and 10 March 2019. She also reviewed documentation including previous risk management reports, remarks on sentence and psychiatric reports. Dr Collins summarised Mr Lynn's early background, noting that he was expelled from school in Year 9 and has largely remained unemployed, although he had obtained some work through family connections. She also noted Mr Lynn's use of heroin, methamphetamines and cannabis. She further noted that Mr Lynn was diagnosed with antisocial personality disorder based on a pattern of impulsivity, aggression, failure to confirm to rules, deceitfulness, recklessness, irresponsibility and lack of remorse.
2. Dr Collins subsequently scored Mr Lynn against the Psychopathy Checklist - Revised ("PCL-R"). Mr Lynn was given the highest score in the moderate range for this scale, indicating that his score moderately matches the description of psychopathic traits. He achieved similar scores across the four facets of the PCL-R (interpersonal, affective, antisocial and lifestyle domains), but with slightly higher scores on the behavioural scales associated with antisociality. Dr Collins concluded that Mr Lynn met the criteria for antisocial personality disorder with additional psychopathic traits. Mr Lynn also scored on a range of violence risk factors across all three scales of the Historical Clinical Risk Management 20 scale, Version 3.
3. Dr Collins' conclusion about the risk posed by Mr Lynn was as follows: "It is my opinion that Mr Lynn continues to pose an unacceptable risk with regards to future violence. Given the impulsive nature of his offending, where he will react violently to perceived risk, this could lead to serious violent conduct I also consider that he requires intensive, targeted treatment if there is any way to reduce risk I note that Mr Lynn may remain treatment resistant, should he successfully complete VOTP, or he may disengage It is my view that a CDO should be imposed so that he can engage in the appropriate level of treatment. In terms of duration, Mr Lynn will require an order for at least two years to meet the VOTP criteria." (Emphasis added.)

Dr Furst's report dated 12 March 2019

1. Based on the material before him (which was very similar to that before Dr Collins), Dr Furst made a diagnosis of antisocial personality disorder in relation to Mr Lynn. This was based on his "pervasive pattern of disregard for and violation of the rights of others since his teenage years, with continued evident problems conforming to social and lawful norms, with a history of impulsivity, anger, aggression and violence, a history of an apparent lack of regard for the safety of others on at least a number of occasions, a lack of remorse, and evidence of problems with conduct in his earlier teenage years." Dr Furst observed that Mr Lynn's negative attitudes were ongoing at the time of the assessment.
2. After having regard to Mr Lynn's static and dynamic risk factors and the history available to him, Dr Furst stated that Mr Lynn could not be sufficiently managed in the community under an ESO. His conclusion in relation to risk was as follows: "It is sobering and ominous to consider that Mr Lynn has already claimed the life of another person and would likely have no reservations in doing so again if he found himself in sufficiently provocative circumstances, as he perceives them. There are no reasonable grounds for optimism in this case and no current available or effective psychiatric or psychological treatments that would arrest Mr Lynn's antisocial, aggressive, selfish and self-destructive chosen manner of conducting himself."
3. Dr Furst later observed at pages 17-18 of his report that: "Short of a miraculous transformation of his personality, I am of the opinion it is highly unlikely Mr Lynn will ever comply effectively with the conditions of any proposed ESO, unless the conditions of the ESO become so lax as to be virtually meaningless in managing his risk of future violence If the Court forms the view that Mr Lynn is a highly dangerous individual who is likely to continue to reoffend in the community and/or in custody, no matter what interventions are offered to him, and is highly unlikely to abide by conditions of supervision, including an ESO or parole provisions, which is consistent with all of the available evidence, then a CDO for a period of 5 years is indicated, largely to protect the wider community from potential further serious violent offending at the hands of Mr Lynn, including the very real prospect of another person or persons being killed by Mr Lynn."
4. It is to be noted that these court-appointed experts were cross-examined at the hearing before Ierace J. His Honour accepted (at [72]) that there was an undue degree of pessimism in Dr Furst's opinion. Despite this, his Honour was of the opinion that the ultimate conclusions of each of the three witnesses were not significantly affected by their cross-examination at the final hearing.

Other reports

1. The State also drew attention to the report of Dr Lennings dated 2 November 2013, relied upon by the defendant in the 2013 proceedings, which drew attention to some limitations of risk assessments and to research suggesting the possible negative effect, and limited beneficial effect, of extended supervision or preventive detention orders.
2. Professor Greenberg, in a report dated 11 March 2004, prior to the commission of the manslaughter offence, opined that Mr Lynn's prognosis is dependent on marked change in his personality and behavioural patterns, abstinence from all illicit substances and his own motivation to make changes.
3. The State submitted that although some of the earlier risk assessments are of less value given that they precede a number of relevant events, they nevertheless support a conclusion that there is an unacceptable risk and that orders under the Act are appropriate.

The 2020 RAR

1. The 2020 RAR commenced with these words: "This report has been prepared at the request of The Commissioner, Corrective Services New South Wales (CSNSW). The report was requested in anticipation of an application under the NSW legislation, Crimes (High Risk Offenders) Act 2006 ("the Act"), which requires a risk assessment report."
2. The authors of the report, Dr Parker and Ms Cieplucha, note that Mr Lynn refused to be interviewed (as he similarly refused to be interviewed for the 2018 RAR and for the two court-appointed experts last year). The authors then set out what material they have relied upon in providing the report, which was significant.
3. The 2020 RAR includes the following Executive Summary: "Mr Lynn is a 44 year old man with an extensive history of violence, culminating in the index offence of manslaughter. This offence was a reactive response to a situation where he perceived he was under threat and reacted with excessive violence. He is assessed as being at high risk of further violent offending. Since being released to an Interim/Extended Supervision Order (ESO) on 17 August 2013, he has been breached on 13 occasions, spending about 33 months in custody. His response to supervision has been oppositional and resistant - to the point that supervision intensity was relaxed in the interests of staff safety. This downgrading of supervision placed the community at higher risk. It is anticipated this would continue, when he is released back to supervision. Despite attending individual counselling with a psychologist for most of his time under supervision, he has not addressed the underlying factors which drive both his violence and his resistance to supervision. My earlier report recommended that Mr Lynn undertake a program that would teach him to understand and change his thinking. Consequently, the Court imposed a 15 month Continuing Detention Order (CDO) on 17 May 2019 to enable "... an opportunity to partake in and finish the VOTP program". However, Mr Lynn chose to appeal this Order and declined to accept a referral to VOTP until the outcome of his appeal was known. The appeal was dismissed on 9 December 2019, with Mr Lynn consenting to a referral shortly afterwards. He commenced the program on 4 February 2020, but is unlikely to complete the program before his order expires on 17 August 2020. A further CDO would allow Mr Lynn the opportunity to complete the VOTP."
4. After setting out Mr Lynn's custodial, drug and psychological history the following appeared under the heading "The Risk Assessment process": "It is not scientifically possible to accurately predict whether or not an individual offender will, or will not, reoffend".
5. And also: "The best that can be offered is an estimates anchored to empirical literature specifying features associated with risk, and sound clinical analysis and formulation of how those present features might operate in the individual subject to the assessment. The risk assessment process is necessarily multi-faceted, combining the use of actuarial approaches and an assessment of dynamic (changeable) risk factors that have contributed to a pattern of violent behaviour. The identification of dynamic risk factors assists in treatment planning and in the development of risk management strategies. However, this raises a question about the best methods for incorporating this information into a risk assessment."
6. The RAR then went to explore the factors that are part of the risk assessment process, observing: "Ultimately, there are two separate, but related functions of risk assessment: prediction and management. It would appear that the former is best served by actuarial instruments and the latter by SPJ and/or case formulation."
7. The RAR then provided various actuarial assessments - these are considered further below at [112]-[116].
8. The report then addressed Mr Lynn's criminogenic needs which are considered further below at [117]. The report then discussed treatment options, which are considered further below at [119]. It then addressed "Risk Factors." Under that heading the authors noted (sources omitted): "Integrating all these disparate indicators together, criminal thinking can be thought of as the over-arching criminogenic need that fuels all other needs. The other dynamic needs listed by Mr Sheehan, all come about because Mr Lynn makes particular choices. Consequently, many experts include criminal thinking as the most important target of their interventions."
9. As for Mr Lynn's Psychiatric history, the 2020 RAR noted that: "While previous reports have found that Mr Lynn does not suffer from a mental illness (Greenberg, 11/4/2004; Roberts, 3/9/2013, O'Dea, 10/9/2013), he nevertheless displays a pattern of communication which is unusual, even among high-risk offenders."
10. The 2020 RAR discussed some of Mr Lynn's case notes and observed that Mr Lynn appears to misinterpret comments by others, generally by assuming a hostile interpretation of other people. Although it was accepted this was fairly common in high-risk violent offenders, it was noted that "the pattern with Mr Lynn seems more extreme, resulting in a very limited ability to absorb information from others, bordering on a psychotic presentation". In support of that assertion a number of case notes were summarised. I extract two by way of example of these: "(1) Offender stated 'Yes. I've gotten advice from the High Court in Canberra and from a Barrister... I served an extra 2 years for nothing and when I got out no one even apologised to me for it. They've made heaps of mistakes on my record. I was charged with something in 2008 when I was in gaol from 2006. How does that happen? You people aren't giving me any information about this' (Case note, 6/5/2013); (2) Lynn then claimed that he had 'hacked into' Greg Smith's (the then NSW Attorney General) computer but when queried on this he retracted and said he had received an email from Greg Smith that discussed the legislation ... Officers asked Lynn to show them the emails however he stated he had 'deleted them as told to'. Lynn then went on to say that he had accessed the Law Society website where Greg Smith admitted that the legislation is illegal (Case note, 18/5/2013)."
11. The 2020 RAR noted that much of this was said to deflect conversations away from issues staff were trying to address. It was noted that Mr Lynn appears to be given a greater amount of leeway than staff would normally grant. It was also noted that "it reflects a degree of disconnect with reality" (getting "advice" from the High Court, hacking into the Attorney-General's computer).
12. It was observed that there are four implicit theories associated with violent offending. They are: 1. Normalisation of violence: This is the idea that violence is a normal (acceptable) means of solving problems 2. "I am the law": This is essentially a rejection of society's role in setting laws - the offender decides for himself which laws he will follow. 3. Beat or be Beaten: This is the idea that the world is a hostile place and that survival depends upon being hyper-alert for potential threats and dealing with these. 4. I get out of Control: This involves a belief that, at times, one's actions are outside one's own control. This can function as a permission-giving statement, especially in the presence of disinhibiting substances.
13. The RAR went on to report that: "All four of these implicit theories are in evidence throughout case notes, and changing them would be a prime focus of any intervention. However, the extreme nature with which Mr Lynn subscribes to these, particularly / am the Law and Beat or be Beaten, renders him almost immune to influence from other people. It should be noted that these thinking patterns underlie both his violence and his resistance to correctional supervision."
14. The 2020 RAR also reported on Mr Lynn's involvement in the VOTP program (which is addressed further below). The 2020 RAR's conclusions were that: "In the event that no further CDO is imposed, Mr Lynn is unlikely to complete the VOTP. If he was subject to a further CDO, he would be able to complete the VOTP, although he may well refuse to do so, or be removed for breaking program rules. Even if he does complete the VOTP, given the intensity of his criminal thinking, I consider it unlikely that the VOTP will significantly alter that thinking. He would then require ongoing intensive supervision and maintenance treatment to reduce his risk of future reoffending." If another ESO is imposed, he would then receive intensive supervision and case management by CSNSW - albeit with the restrictions noted earlier. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and attending programs to address his criminogenic needs. Based on his history, it is considered unlikely that he would comply with such supervision, and concerns for staff safety will limit the ability to contain risk. Unless he is coerced into participating in effective treatment, the risk of further violence is likely to continue into the foreseeable future." (Emphasis added.)

Previous level of compliance with supervision orders: s 17(3)(e2)(f)(g)

1. Mr Lynn's compliance since being released from custody in 2013 is summarised in the 2020 RAR as follows: "Mr Lynn's response to supervision under the order has been extremely poor. Case notes indicate a constant pattern of schedule violations - typically being a late return to home, but also many instances of travelling to places that are not approved, or not approved at that time. Case notes indicate many instances of Mr Lynn verbalising that the Order is not valid and that, therefore, he is under no obligation to follow the directions of supervising staff (e.g., Case notes, 18/5/2013, 8/7/2015). The 13 breaches presented to the Court represent a small subset of an underlying pattern of non-cooperation with supervision. Additionally, there are numerous instances of Mr Lynn being abusive to staff, such as calling a staff member a 'black slut' (case note 2/1/2016), calling staff members 'fucking cunts' (case note 25/3/2014), threatening staff members (e.g. case notes 13/10/2014, 17/10/2014, 8/7/2015, 2/1/2016 & 17/4/2017) and generally being abusive (case note 10/6/2016, 17/6/2017, 6/4/2017, 9/4/2017, 11/7/2017, 21/10/2017, 2/11/2017, 26/12/2017, 31/12/2017 & 26/1/2018). While he was in custody at the beginning of 2017, Housing NSW (HNSW) took action to evict him from his property (Case note, 16/2/2017). Despite efforts from Mr Lynn and Community Corrections, he eventually relinquished his tenancy, when again incarcerated (Case note, 17/5/2017). When he was next released from custody on 21 June 2017, he was homeless - a situation that continued until the current incarceration. Despite substantial advocacy work from Community Corrections (e.g., Case note, 21/7/2017, 20/10/2017), Mr Lynn exacerbated this situation by refusing offers of accommodation that were not located in the inner city (Case note, 6/7/2017,17/7/2017); and refusing to conduct his own search for accommodation as required by HNSW (Case note, 8/7/2017). He was eventually declared an 'unsuitable tenant' by HNSW, which means that they will not make any further offers of housing to him. His appeal against this declaration was unsuccessful (Case note, 17/9/2017). He was offered a placement in a supported accommodation service in Western Sydney (Case note, 29/9/2017) but rejected this because it was too far from the city (Case note, 29/9/2017). He was then directed to live in that accommodation service (Case note, 4/10/2017), but continued to insist that '... what he wants is to find a place in the city and that if he does DSO 'has to approve it' no matter what' (Case note, 4/10/2017). He then moved into that accommodation but continued to protest that it was too expensive and that he wanted to live in the city. He was offered the option to move to the COSP (which was substantially cheaper) but refused that, suggesting he would be violent to sex offenders who were living there (Case note, 6/10/2017). He was eventually asked to leave this supported accommodation, because he was avoiding staff, had 'not attempted to make any payment', and was 'not wanting to work with us' (Case note, 18/10/2017). He was then given approval (for one night only) to stay at the Matthew Talbot hostel (Case note, 22/7/2017). This accommodation was considered unsuitable by Community Corrections as it is dormitory accommodation, with other antisocial residents. However, due to a lack of other accommodation options, which he was willing to countenance, he stayed at this accommodation (apart from a short period in custody) until he was incarcerated on 26 January 2018."
2. Mr Lynn's response to the State's contention that his record of compliance is poor was twofold. First, it was submitted that the continued intervention by "agents of the State" in his life has been counterproductive. Second, it was submitted that there has in fact been improvement in his conduct since he was placed on the current CDO.

Statistical testing: s 17(3)(d)

1. Mr Lynn has been assessed according to the VRAG-R, VRS and LSI-R between 2017 and 2020.
2. Mr Lynn was assessed according to the LSI-R on 18 July 2017. The LSI-R is an actuarial risk assessment tool administrated to all offenders. It assesses risk according to static or dynamic risk factors. Mr Lynn's score was 39 out of a possible 54, which placed him as Medium/High Risk. According to Corrective Services data, 67% of offenders assessed in this range went on to re-offend within the next 2 years.
3. Dr Parker then assessed Mr Lynn according to the VRAG-R on 6 May 2020. The VRAG-R is an actuarial risk assessment tool specifically developed to assess the risk of violence for serious offenders. Mr Lynn's score was 27, which placed him in the "high risk" category comparable to other serious violent offenders. 76% of violent offenders with similar scores to Mr Lynn have reoffended violently within five years and 87% within twelve years.
4. Mr Lynn's score on the VRS, administered by Mr Sheehan in 2013, classified him as "high risk". The VRS is actuarial tool which is used to assess an offender's static and dynamic risk factors and their capacity for post-release violence.
5. The State accepted that the tools have limitations but Parliament has legislated that regard must be had to them.
6. Dr Parker further identified and assessed Mr Lynn's criminogenic needs as being: 1. Violent lifestyle: and using violence to solve problems; 2. Criminal personality: described by Dr Parker as a "glib, superficial, manipulative and dishonest style of communication"; 3. Work ethic: Mr Lynn has a sporadic employment history; 4. Criminal peers: generally Mr Lynn does not engage widely with other offenders; 5. Interpersonal aggression: Mr Lynn uses verbal and physical aggression to solve problems; 6. Emotional control: this was described as poor by Dr Parker; 7. Violence during institutionalisation; 8. Weapon use: including a history of using concealed weapons; 9. Insight into violence: according to Dr Parker, he "sees himself as a victimised person who has rightly defended himself when required"; 10. Substance abuse: including use of opiate, cannabis and amphetamine; 11. Stability of relationships: Mr Lynn had one long term relationship in [his] late teens, which persisted until his early twenties. His partner was alleged to have committed suicide in 1999; 12. Community support: Mr Lynn does not appear to believe that he requires community support; 13. Exposure to high risk situations; 14. Violence cycle; 15. Impulsivity; 16. Cognitive distortion: Mr Lynn believes he does not have a history of violence and has a circumstantial account of all charges of violence, that work to either deny, excuse, justify, rationalise, blame or minimise his offending; 17. Poor compliance with supervision.

Treatment and rehabilitation programs/available courses: s 17(3)(e)(e1)

1. As stated above, while he was serving his sentence for the index offence, Mr Lynn entered the VOTP on two occasions. He was removed on the first occasion for fighting. On the second occasion he was removed for poor participation, for "... a poverty of content in his self-disclosure and a lack of ownership of his history of violence".
2. The VOTP is a custody-based residential program aimed at promoting individual strengths through cognitive-behavioural therapy in a therapeutic community setting where the participants work intensively on addressing their offending behaviour and developing insights into their risk factors and strategies in managing them. It is based on "Risk, Needs and Responsivity" principles and addresses the empirical risk factors for violent offending. According to Corrective Services, the VOTP includes dialectical behaviour therapy as well as acceptance and commitment therapy.
3. Ierace J observed the following at [80] in relation to the value of the VOTP program: "… VOTP is associated with a significant decrease in the likelihood that a violent offender will commit a new offence or return to custody within 24 months of release from prison. OLS models estimate that an offender who commences VOTP is on average, between 7 and 9 percentage points less likely to re-offend or return to custody within 24 months free time after release. We find similar results when comparing those who completed VOTP with those who did not complete the program. VOTP completion is associated with reductions in the risk of general re-offending and general re-offending or returning to custody. However, we cannot be certain that these effects are causal as no significant estimates were obtained using the more robust 2SLS which more adequately deals with problems of endogeneity."
4. Subsequently, Mr Lynn has had individual counselling sessions in a manner usually reserved for offenders that have completed the VOTP program. Although the case notes from VOTP psychologists record that he has engaged co-operatively, both Dr Parker and Mr Sheehan observed that this could be because such sessions do not require him to address the underlying thinking which fuels his violence.
5. A "stated objective" of the CDO imposed on Mr Lynn by Ierace J in May 2019 was to allow Mr Lynn an "opportunity to partake in and finish the VOTP program."
6. Despite the fact that the 2020 RAR described Mr Lynn as refusing to enter the VOTP program until his appeal was heard, a signed consent program was before me annexed to the affidavit of Hayley Le affirmed on 6 August 2020. This shows that Mr Lynn agreed to enter the VOTP on 20 November 2019, a few days before the decision was handed down. It was not until 4 February 2020 that Mr Lynn received the offer of placement.
7. When being interviewed for entry into the VOTP, Mr Lynn provided the following definition for "violence": "Violence is an uncontrolled use of force, not that you are not in control of your hands, that's mental health, it's that you aren't in control of the reason you are using force."
8. A case note of 29 April 2020 records Mr Lynn's progress on the VOTP as follows: "Mr Lynn continues to present as rigid regarding his views and preoccupied about the perceived injustices against him. This presentation often results in an argumentative and oppositional approach to session content and impacts upon the treatment of other group members. He has demonstrated the capacity to appropriately provide feedback to other group members. At times, Mr Lynn has shown some ability to engage in compromise and flexibility, including ceasing training to attend a session with psychologists with minimal warning, despite being provided with the option to reschedule."
9. In response to this, it was submitted on behalf of Mr Lynn that there in fact has been a shift from the time that lerace J imposed the CDO. It was accepted that there had been troubles during the VOTP program, but by going through the OIMS notes and other documents, the following favourable comments can be extracted from them. The notes recorded that Mr Lynn was punctual to his appointments; he has been receptive to "containment" in the course of the program; he has behaved appropriately for much of the course; he "helpfully assisted" other offenders in the program; he let other prisoners borrow and use his property; he has pleaded for the chance to finish VOTP promptly; after some difficulties, his presentation improved, at least for a time; and he has shown improvement in responding to psychologists. For example, one of the notes reported that after he refused to move on when requested to so by the psychologist, however soon after this remark, he Mr Lynn complied, agreeing that they needed to get back to the point.
10. The notes also record that Mr Lynn has been receptive to feedback; he has stopped and chastised himself for swearing; and he has learnt to open up and discuss difficult matters, the note recording "He really attempted to answer the important questions for the psychologist, despite his discomfort and desire to keep this information private. Mr Lynn has also indicated that he is happy to do any rehabilitation that they deem important".
11. It is noted in the 2020 RAR that if the Court intends for Mr Lynn to complete the VOTP program his CDO will need to be extended. Mr Lynn submitted that there is evidence that "the length of the VOTP program is 8 to 10 months" and "if a relatively short CDO is made for the purpose of an offender participating in VOTP, the application process can be fast-tracked to fit into a 12 month CDO timeframe".

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community s 17(3) (d1)

1. A risk management report ("RMR") was prepared by Ms Shantelle Hodgkinson, a Community Corrections Officer. At the outset, she noted that: "Mr Lynn has an extensive history with Community Corrections. He first came into contact with Community Corrections in 1995 for violent related offences. Since 1995 Mr Lynn has been subject to various orders including periodic detention, Good Behaviour Bonds and Parole orders. His Criminal history involves being convicted of offences involving violence, property offences, driving offences and drug related offences."
2. She noted that Mr Lynn's response to supervision has previously been poor, despite being subject to various orders that were supervised by Community Corrections. Based on the information previously collated by Community Corrections, Ms Hodgkinson summarised Mr Lynn's risk factors as: Violent Lifestyle; Criminal Personality; Criminal Attitudes; Work Ethic; Criminal Peers; Interpersonal Aggression; Emotional Control; Violence During Institutionalisation; Weapon Use; Insight into Violence; Mental Disorder; Substance Abuse; Stability of Relationships; Community Support; Released to High Risk Situations; Violence Cycle; Impulsivity; Cognitive Distortion; Compliance with Supervision; Security Level of Release Institution and Criminal Thinking.
3. Ms Hodgkinson also outlined a management strategy for Mr Lynn. This involved weekly face to face interviews to create a comprehensive case plan; announced and unannounced home visits and field visits once a month; weekly contact would be maintained with third parties involved in Mr Lynn's case management (such as medical practitioners and his VOTP psychologist); electronic monitoring in the community; an assessment to determine whether he requires intervention related to his Antisocial Personality Disorder; a prohibition from taking drugs or alcohol; random and regular drug and alcohol testing and directions not to associate with any person who has an Australian Criminal History. The limitations were identified as Mr Lynn being intimidating or aggressive, unreliable self-reporting and in resistance to supervision.
4. During the hearing it emerged that the COSP Nunyara has confirmed a bed for Mr Lynn from 16 August should he be placed on an ESO.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s17(4)(i)

1. Section 17(4)(i) of the Act provides that the court can consider any other relevant factor. In this respect, the State relied upon the findings of Ierace J. It seems to me that those findings are part of the procedural history of the matter and I am entitled to consider them in order to assess whether there has been any change in the relevant factors when assessing the question of risk.
2. Ierace J had regard to the unanimous view of the experts before him that Mr Lynn's risks were best met by a CDO and, in particular, undertaking the VOTP. His Honour observed at [75] that the range of options to improve Mr Lynn's prognosis for a crime-free life in the community have been narrowed considerably by a number of factors (I have listed these below at [166]).
3. His Honour addressed Mr Lynn's submission that the index offence was committed 13 years ago and there has been no serious violence offence committed since then as follows at [76]: "The submission that the defendant poses a lower level of risk because the index offence was thirteen years ago and that most other offences which involved threatening others with a knife are even older, loses traction when it is not accompanied by evidence that he has gained insight into his behaviour and also by virtue of the fact that for most of the intervening period he has been in custody. In that sense, the passage of time is less relevant."
4. His Honour had regard to the supporting information and was satisfied that the "critical issue for the defendant's progress is to change his thinking" and that active participation in the VOTP program is the best available option to achieve that.

Threshold argument: compliance with s 14(3)(b) of the Act

1. A threshold argument was raised on behalf of Mr Lynn as to whether the statutory pre-requisite in s 14(3)(3)(b) of the Act had been satisfied in this matter.
2. Mr Kerkyasharian acknowledged that the 2020 RAR addresses the question of "risk", but, it was submitted, it does not address the question of "likelihood" of risk. It was submitted that it is beholden on the State to do so and it is not enough to simply state, as is asserted in the 2020 RAR, that the likelihood of offending is not able to be predicted with accuracy. It was submitted that the concepts of "likelihood" and "risk" are different; if "risk" comprises balancing factors such as the probability (or likelihood) of the risk and the seriousness of the risk then an RAR assessing risk is not one specifically aimed at "likelihood" as required by s 14(3)(b) of the Act.
3. It was further submitted that not only does the 2020 RAR fail to provide assistance to the Court on the likelihood of risk, in failing to do so the State has not met its statutory obligations under the Act and the application should be dismissed.
4. A second complaint was made concerning the 2020 RAR in that, although it addresses the risk of Mr Lynn committing a further violence offence, it does not address the question of the risk of "serious violence". I shall consider that argument separately when considering the question of unacceptable risk.
5. Ms New responded by noting that s 5D of the Act provides that the Supreme 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.
6. It was also submitted that just because the authors of the 2020 RAR did not specifically use the words "I have assessed the likelihood of him committing a serious violence offence as X" does not mean that the 2020 RAR did not meet the threshold consideration in s 14(3). The authors are psychologists and the assessment was within the parameters of their particular expertise.

Consideration: what is required by s 14(3)(b) of the Act?

1. It is customary for a RAR in terms such as the 2020 RAR to accompany an application under the Act. Such a report routinely sets out an assessment of the risk of an offender committing either a serious sexual offence or a serious violence offence by adopting a multi-factorial approach. The 2020 RAR commenced with the words that it was being prepared as required under the Act. That, of course, does not necessarily mean that it does in fact comply with the Act. The terms of s 14(3) of the Act are as follows: An application for a continuing detention order must be supported by documentation: (a) that addresses each of the matters referred to in section 17 (4), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious offence. (Emphasis added.)
2. I accept that "risk" and "likelihood" are different concepts. Support for this is not only to be found in the risk assessment process undertaken in the 2020 RAR itself but also in some of the decisions of his Court setting down the principles for establishing "unacceptable risk".
3. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43], Harrison J observed: "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."
4. Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [7] that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
5. In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J observed the following at [14]-[17]: "The ascertainment of a risk and its denotation as "unacceptable" occurs in the usual way. There are many areas of the law in which risk assessments are required to be undertaken and, generally, they identify and evaluate the possibility of an injury that may be sustained as a result of a possible (and often foreseeable) occurrence. In assessing risk and whether the risk is unacceptable, a court is required to deal with a matrix of considerations. First, there is the probability or possibility that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the manifestation of that risk. Thus a risk, the consequences of which are catastrophic, may be unacceptable, even though the occurrence of that risk is only slightly possible. On the other hand, where the manifestation of a risk involves minor injury, such as a contusion, even a high probability of its manifestation may not render the risk unacceptable. For a full discussion, albeit in the context of the Terrorism (High Risk Offenders) Act 2017 (NSW), which is in relevantly identical terms, see State of NSW v Ceissman [2018] NSWSC 508 at [26]-[33]." (Emphasis added.)
6. Although I accept that "risk" and "likelihood" are different concepts, "risk" incorporates an assessment of "likelihood". It seems to me that it is not possible to assess unacceptable risk under the Act without having regard to the likelihood of further offending. Thus, the fact that the 2020 RAR focused on the bigger picture of "risk" does not mean that s 14(3)(b) is not met. Nor does the fact that the authors of such reports acknowledge the difficulty in assessing the likelihood of risk mean that no such applications can be made. The assessment of risk is a difficult evaluative task but by using the multi-factorial approach taken here, and accepting the acknowledged limitations of actuarial tools, the authors of the 2020 RAR, have arrived at estimates.
7. For these reasons, I am satisfied that s 14(3)(b) of the Act has been complied with in this matter.

Consideration

1. The statutory task is an evaluative one undertaken in the overall context of the primary objective of the Act which is to ensure the safety and protection of the community. At this preliminary stage, the court is required to take into account all of the supporting documentation and assume it would be proved at a final hearing. It has been held that the task of the Court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983.
2. The first question is whether the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO: ss 17(4) and 18A(b) of the Act. If so, I would appoint experts to examine Mr Lynn for the final hearing and place him on an IDO for 28 days. It is important to note that at this preliminary stage that the Court does not need to be satisfied that Mr Lynn would necessarily be placed in a CDO (as opposed to an ESO) at the final hearing in order to place him on an IDO at this preliminary stage.
3. In addressing whether the Court both could (ss 5B and 5C) and would (ss 9 and 17) place Mr Lynn on an ESO and a CDO it is only mandatory to have regard to the ss 9 and 17 factors at the second stage of the enquiry (rather than the anterior enquiry under ss 5B and 5C). Despite this, the criteria in ss 9 and 17 are still relevant to the question of whether a person poses an "unacceptable risk" of committing a serious sex offence if not kept under supervision: per Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [84], followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [48].
4. Turning to the statutory requirements, Mr Lynn did not contend otherwise than that he is a detained offender serving a CDO and has been convicted of a serious violence offence. Nor, apart from the s 14(3)(b) objection, were any other threshold complaints made, such as that the application was made out of time. The focus of the opposition to the orders was whether the court could be satisfied to a high degree of probability that the supporting information if proved would justify the making of an ESO or CDO.
5. It has been held that the test of being satisfied to a "high degree of probability" in this context is a standard of proof higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the test is a high one, it is important to note that the court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an "unacceptable risk" of committing a serious sex offence: State of New South Wales v Sharpe [2017] NSWSC 469 at [52].
6. The phrase "unacceptable risk" is not defined in the Act but has received judicial consideration. In Mr Lynn's first appeal to the Court of Appeal, Beazley P (with whom Gleeson JA agreed) held at [51] that the determination of the existence of an "unacceptable risk" is an evaluative task and evaluative tasks require a context in which to be made. Her Honour also held at [58] that the phrase "unacceptable risk" is to be given its everyday meaning within its context and having regard to the objects of the Act. The evaluation is "…directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]).
7. It seems inevitable that Mr Lynn would commit an offence of violence if not detained. The question is whether there is an unacceptable risk of him committing a serious offence of violence under s 5A of the Act. The mens rea of such an offence includes an intention or recklessness as to the infliction of, inter alia, actual bodily harm. The actus reus is an act causing death or grievous bodily harm. On behalf of Mr Lynn it was argued that the specific risk of committing an offence of this nature could not be established.
8. Counsel for Mr Lynn submitted that although the 2020 RAR addressed the risk of "violence" offences, it did not address the risk of a "serious violence offence" as defined in s 5A of the Act. It was contended that Mr Lynn's identified risk scenario (that a less serious assault would escalate to a more serious assault) is speculative and insufficient to come within the terms of the Act. It was submitted that such a conclusion was one that is "on the material without any evidentiary exegesis". By way of example is was submitted that if one was to assume that 10,000 common assaults are committed in NSW each year and two of those results in a death then the risk of that outcome is "extremely low".
9. I have carefully considered this submission but I am satisfied that the 2020 RAR does address the risk of offences of serious violence. I have extracted some of the 2020 RAR above but, in addition, I note that [72] of the 2020 RAR concluded with the observations that Mr Lynn's extreme self-centredness, his pattern of thinking that perceives the world as a dangerous place and his adoption of an aggressive stance towards the world mean that "[a]s has happened with the index offence, this could involve serious violence."
10. It was further submitted on behalf of Mr Lynn that the risk of relevantly minor offences is acceptable, even though from time to time they might give rise to more serious offences. To find otherwise, it was submitted, is to vastly increase the ambit of matters that might be captured by the Act, well beyond the case of a prisoner who represents a serious danger to the community. The purpose of this legislation, it was submitted, is not to prevent common assaults, which might turn into one punch manslaughters. Nor is it the purpose to prevent assaults occasioning actual bodily harm or to prevent people from carrying knives or getting involved in affrays.
11. I accept this submission as a matter of principle. If an identified risk does not reach as high as the commission of a serious offence, the summons will be dismissed. In State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 I dismissed a summons brought under the Act at the preliminary hearing on the basis that, although I was satisfied to the requisite standard that there was an unacceptable risk that the defendant would further offend if not supervised, I was not satisfied that that there was such a risk that he would commit a serious offence. But that was a very different case. That offender had not committed any further offences for over 20 years and the highest the RAR could put his risk at was medium. There were other factors at play as well.
12. A further basis of Mr Lynn's objection to this identified risk scenario is that he only has one "serious" violence offence on his record. That is to be accepted, But that conviction falls to be considered in the context of his entire criminal history. Taken at its highest, that history suggests that Mr Lynn was on a trajectory of committing highly reactive violent offences for which he was using a weapon in almost all of the offences that pre‑date the manslaughter offence. Similarly, his most recent violent offences (for which he was imprisoned in 2018) are consistent with offences throughout his record involving that sort of reactive violent behaviour.
13. Although Mr Lynn's criminal record alone (with the one notable exception) is one of violence rather than serious violence (as defined) the application does not stand to be assessed on his criminal record alone. The Court is to have regard to all of the other factors I have summarised above. Some of the factors I have had regard to are those identified by Ierace J at [74]-[75] being: 1. The frequent occurrence of, if not a predisposition to, aggressive responses to stressful situations; 2. A history of carrying items that can be deployed for stabbing or cutting and resorting to such devices when stressed in order to threaten; 3. On-going occasional lapses into the use of violence-related drugs such as methylamphetamine, in spite of attendance in drug treatment programs; 4. Long-standing absence of insight into his issues of violence and drug abuse; 5. The past failures in properly participating in programs that address these issues; and 6. The past absence of good working relationships with CSNSW caseworkers.
14. Of particular concern is the evidence of Mr Lynn's view of the world as reflected in the case notes and his understanding of what "violence" means. As for his non-compliance with supervision, Mr Lynn did not agree to be interviewed for either the 2018 RAR, the 2020 RAR or by either of the Court appointed experts last year. Nor did he give evidence at the hearing.
15. There is no doubt that Mr Lynn has much to say about his ongoing supervision and detention. He raised his hand to be heard during the preliminary hearing before me on a number of occasions (he appeared by way of AVL). He also appeared for himself in his most recent Court of Appeal matter and made a number of submissions, including how unfairly he has been treated: Lynn v State of New South Wales [2019]. The response of Leeming JA to that at [77]-[78] is as follows: "It may be that there is force in Mr Lynn's complaint that the legislation is being applied harshly to him. However, it is not possible on the evidence to evaluate the validity of his submissions. It was at all times open to Mr Lynn to give evidence about these matters, either directly in the litigation, or indirectly through participating in the psychological and psychiatric examinations for which orders were made under the Act. Mr Lynn did not avail himself of either of those courses."
16. Although it is to be accepted that some of the breaches of Mr Lynn's ESO were less serious than others, his refusal to be interviewed for any reports and his intransigence as reflected in the case notes is not assisting his progress from detention to supervision to, hopefully, reaching a stage where he is free from either
17. I have had regard to the submission made on behalf of Mr Lynn that the continued intervention by "agents of the State" in his life of the defendant have been counterproductive. In State of New South Wales v Carr [2020] NSWSC 643 Hamill J recently made a number of observations to that effect in relation to another offender, but that was a very different application. In that case the State sought the revocation of an ESO because it was satisfied that the risk assessments no longer suggested that the offender represented a high risk of reoffending and it was apparent that the strict enforcement of breaches of the ESO was ultimately adversely impacting his prospects of rehabilitation. That is not this case.
18. For all of these reasons, I am satisfied that the material, if proved would justify the making of an ESO or a CDO. Accordingly, I propose to make the orders sought at this preliminary stage of the proceedings.
19. The State accepted the desirability of presenting "a clear pathway" to Mr Lynn's release. This outcome may still be achieved, although the reports from the VOTP to date are mixed. That will be a matter for final hearing. A way forward needs to be found for Mr Lynn. The ball is in his court regarding his involvement in the VOTP between now and the final hearing and whether he complies with Court orders to be examined by the court-appointed experts.

ORDERS

1. Accordingly, I make the following orders: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. That two qualified psychiatrists, or two registered psychologists, or one qualified psychiatrist and one registered psychologist be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations; and 2. That the defendant is directed to attend those examinations. 1. Pursuant to s 18A and s 18C of the Act the defendant is to be subject to an interim detention order for 28 days from 15 August 2020 to 11 September 2020. 2. Pursuant to s 20(1) of the Act a warrant is to issue for the committal of the defendant to a correctional centre for a period of 28 days commencing on 15 August 2020. 3. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access. 4. Liberty to apply for further orders. 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: 14 August 2020