The evidence establishes that Mr Mackey poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision
- The following evidence, I am satisfied, establishes to the necessary high degree of probability that Mr Mackey poses an unacceptable risk of committing another serious violence offence if he is not kept under supervision on release, notwithstanding that thus far, he has only committed one such offence.
- Mr Mackey was born in 1977 and is now aged 38. He grew up in Glebe with his parents and three siblings. He attained his School Certificate in 1993 and commenced, but did not complete, Year 11. Since he became an adult he has spent most of his life in custody.
- As Button J found, the evidence well established that Mr Mackey has a problem with drugs, which has bedevilled him for over twenty years. He also has a serious problem with alcohol. They have led him not only to the pursuit of crimes to fund his drug taking, but offences of very considerable violence, long periods of resulting incarceration and finally, this application.
- Mr Mackey was released on parole for the index offence in April 2014, but in September was detected to have taken amphetamines and methylamphetamine (ice). In November he underwent detox at Nepean Hospital, but later that month resumed heroin use, shortly before commencing treatment with suboxone. By the end of November he was using heroin daily and, it is not disputed, offending by stealing a truck from the Fish Markets and attempting to break and enter Woolworths at Southpoint Shopping Centre.
- Late in November, Mr Mackey was found in a car with tools in a backpack, including a crow bar, torch, gloves and a screwdriver. He was arrested on driving offences in December, with power tools found in the car which were seized as having been unlawfully obtained. He then told police that "My brain's fucked from all the drugs". His parole was revoked. After he was released under the interim supervision order which Button J made, he was arrested and charged with the 2014 offences, in respect of which he is now bail refused.
- That offending reflected a continuation of Mr Mackey's long pattern of drug abuse and offending to support that abuse, which has continued since his adolescence. Over that time, not even the deprivation of his liberty and treatment for drug abuse in custody has stopped Mr Mackey from his pursuit of drugs. Nor did the conditions of supervision on which he was released when given parole in 2014, which required him to abstain from drug and alcohol abuse, as well as offending.
- That long record of offending commenced in August 1993, when Mr Mackey was charged with unlicensed driving and stealing a vehicle. He had lost control of that vehicle and was, as result, hospitalised with head injuries, lacerations and an injured hand. In 1994 and 1995 he was convicted of a number of stealing and break and enter and steal offences. These involved breaches of supervision and parole orders. In 1995 two assault offences were found proven, but they were dismissed under s 556A.
- It was in 1995 that Mr Mackey committed the most serious of his offences, for which he was charged with murder, but finally convicted of three manslaughter offences. This was the result of a dispute over a phone, which resulted in a fight, in which he used a paling fence as a weapon and threatened to kill his assailants and to burn down their house. Later he threatened to petrol bomb their house.
- The following day he was told by another offender that she also intended to burn down the house. Mr Mackey agreed with the plan and encouraged her. They and others walked to the house. The other offenders gained entry to the house. One of them started a fire at the back and front of the house, which engulfed the property, resulting in the death of a victim and her two young children. Mr Mackey later admitted his involvement to police. He was charged with murder and later pleaded guilty to 3 counts of manslaughter and to malicious damage. An appeal on sentence was dismissed in 1999.
- As was common ground between the parties and Button J found, the three manslaughter offences were not "serious violence offences" as defined, they having been found to be the result of an unlawful and dangerous act. They were, however, each very serious offences, relevant to what here falls to be decided, given not only the circumstances in which they were committed, of drug abuse and after other violence, but involving as they each did the death of an innocent victim. They are, as a result, a relevant part of the factual matrix against which a conclusion has to be reached, as to whether Mr Mackey now poses an unacceptable risk of committing a serious violence offence.
- On sentencing Mr Mackey for that offence, Dunford J observed that burning down the house had not only received his immediate and enthusiastic encouragement, but also involved his willing participation, on a day when he had spent the afternoon smoking marijuana.
- While in custody for those offences, Mr Mackey was involved in various institutional misconducts, including for violence and illicit drug use.
- Mr Mackey was released on parole in November 2003. He later admitted being in breach of parole by his use of marijuana and ecstasy. In July 2004 he also committed a break and enter offence, of which he was convicted in 2006. In July 2004, he committed the index offence, for which he was arrested in September. He was convicted of that offence by a jury and his sentence appeal was dismissed in 2006.
- In sentencing him for the index offence, Marien DCJ observed it to have been a "cowardly, brutal and unprovoked attack", involving an unreasonable response after Mr Mackey had drunk steadily for some six hours. There was then evidence of a history of illicit drug use and that his domestic relationship was then also problematic, because of alcohol abuse. On sentencing, Mr Mackey gave evidence that he was an alcoholic; that there was a direct link between his drug and alcohol use and his offending behaviour; and that he had a problem with violent responses, for which he recognised he needed help.
- Mr Mackey undertook a number of programs while in custody, but in an April 2013 psychological report, Ms Haddad considered that they had been insufficient to address his risk of violence. He was offered, but declined to participate in the Violent Offenders Therapeutic Program, on the last occasion in April 2014. He became eligible for parole in March 2013, but it was repeatedly refused, because of his inconsistent engagement with certain other programs.
- In her assessment, Ms Haddad came to the view that Mr Mackey's responses to testing reflected an exaggerated attempt to disguise underlying antisocial attitudes and that with intoxication, he was unable to regulate his true beliefs and attitudes. She found that his recent institutional conduct had been positive, without physical and verbal aggression, consistent with abstinence from drugs and alcohol. On the Violence Risk Scale, she came to the view that drinking led to impulsive acts of violence and that drugs and alcohol had an impact on his ability to control his emotions, consistent with violence charges in custody, in proximity to failed or refused urine testing. Triggers for re-offending identified were negative peer influences, minimisation and justification of violent behaviour, alcohol abuse and use of illicit substances, with resulting deterioration of emotional regulation and subsequent disinhibition.
- In a January 2015 risk assessment report, a psychologist, Ms O'Neill, observed that Mr Mackey had disclosed other violence for which he has never been charged, including hitting a man with an iron bar and pub fights. In September 2012 he had been assessed as falling in the low to moderate range of risk of re-offending generally or violently within 12 months of release. That was revised to in May 2014 to high risk.
- Ms O'Neill observed that Mr Mackey's ability to cope was impaired when intoxicated; that he had cognitive distortions from experiences of having been bullied, from which he had learned that violence could have positive outcomes; that use of substances affected his emotional regulation skills; he tended to responded more strongly to perceived threats in the presence of peers; and that he had a record of willingness to use a weapon, when he felt disadvantaged. She considered that the manslaughter offences reflected impulsively being involved in offending when influenced by antisocial peers, with drug use playing a factor. When intoxicated he was likely to react with violence without thinking of consequences. She considered his risk of violent offending in relation to adult male violent offenders to fall into the moderate-high risk category.
- Ms O' Neill observed that it was "unclear" whether his future violence would meet the definition of a serious violence offence. His past history was consistent with a capacity to engage in such an offence, but his recent behaviours indicated the potential to manage himself, without resort to violence.
- Ms O'Neill's views were taken into account in the risk management report prepared by Ms Nowrot, a member of the Department of Police and Justice Extended Supervision Orders Team.
- In custody in February 2015 Mr Mackey failed a urinalysis test for buprenorphine and mirtazapine. He failed another test in March.
- While released under the interim supervision order, it appears that Mr Mackey may have abstained from drug and alcohol abuse, although it is relevant that Ms Nowrot's June 2015 affidavit indicated that he had not been subject to urinalysis to that point. He again commenced supervised suboxene therapy to control his craving for heroin during that time.
- Dr Ellis saw Mr Mackey on 18 May 2015 after his release from custody. Mr Mackey identified having had problems with depression, with which he was first diagnosed 10 years ago, as well as with drugs and alcohol. He described feeling angry with himself and the world and having used drugs throughout his life, in order to improve his ability to interact in social settings. He said that his alcohol abuse by age 26 had escalated to the point where he was drinking most nights of the week, to the point of experiencing alcoholic blackouts, but he had only attended a few meetings of alcoholics anonymous in 2003 and 2004.
- Mr Mackey also described a very significant level of escalating drug abuse over time. He began smoking heroin at age 14 and marijuana at age 15. His heroin use escalated to 2 or 3 grams every day. By 16 or 17 he was smoking 3 grams of marijuana every day, to which he developed a tolerance and became irritable when it was not available to him, but he denied experiencing paranoia. By 16 he was also using half a gram of methamphetamine (speed) every week, as well as ecstasy on a weekly basis. He had also tried LSD and occasionally used cocaine, as well as prescription benzodiazepines and opioids bought from street dealers, which he used to help him come down off other drugs.
- Mr Mackey said that he continued using heroin even when in custody. He experienced tolerance and withdrawal from heroin, which he had last used in December 2014. After his release from custody in 2014, he had also used crystal methamphetamine (ice).
- Mr Mackey developed a bowel problem secondary to the use of heroin. His father and paternal uncle had a problematic use of alcohol.
- The criminal history which Mr Mackey gave Dr Ellis was that as a juvenile he had not been convicted of drug or violence offences, having been found guilty, but not convicted of two assaults in 1995. He was convicted of manslaughter in 1997 and grievous bodily harm in 2005. Early in custody he fought to protect his own reputation and to protect a smaller man. Later he fought over differences of opinion. He had been involved in at least six fights, had four institutional charges for fighting or assault, as well as other charges for drugs, disobedience and intimidation.
- Mr Mackey said that he came from a loving family background, which was marred by alcohol abuse and domestic violence. He is the oldest of four children and there are four step children with whom he has no contact. His parents had a graphic design business. He was cheeky at school and not academically bright.
- Mr Mackey also told Dr Ellis that the victims of his manslaughter offence were neighbours. He had had an argument with the son about stolen goods. He said that he talked his co-offender, who was drunk, into setting the fire and then he walked away, without considering the consequences. He learned of the deaths he had caused the following day and felt that he was a monster.
- Mr Mackey was 26 when released. He then lived with his partner, the mother of his daughter and worked as a labourer. He was back in custody within 10 months because he committed the index offence. He described having been drinking all night and being off his face, when he smashed a glass into a guy's face. He said that he had felt afraid when he bumped into the man and had been offended, by how he spoke to him.
- Mr Mackey said that when he was released in 2014, he wanted to find rehabilitation, but could not secure a place.
- Mr Mackey also explained his attitude to the supervision order to be that he did not think that it was warranted, but he was prepared to take advantage of the support it offered him, including dental care. He did not wish to drink or use drugs, but identified being vulnerable both to their use and being violent with alcohol.
- Dr Ellis considered that Mr Mackey met the criteria for mixed personality disorder with anti-social and narcissistic features, as well as substance use disorder. He had displayed constant rule breaking behaviour, poor interpersonal relationships, irresponsibility, poor impulse and anger control, resulting in physical assaults over his lifespan. He had limited capacity for empathy, held some attitudes of exaggerated talent and a heightened sense of entitlement.
- Dr Ellis concluded that his substance use disorder was in partial remission in a controlled environment with replacement therapy, but with recent relapse during supervision. He also had a history of depression, which was in remission, which could be an independent disorder, or a substance induced mood disorder.
- Dr Ellis did not consider that Mr Mackey had any intellectual disability, but demonstrated some minor cognitive problems on testing, possibly as the result of heavy alcohol and drug use. There was no evidence of serious neurocognitive dysfunction.
- Dr Ellis explained that current risk assessment techniques did not make it possible to determine whether an individual would reoffended with a violent offence, but that risk factors can be identified. He explained the actuarial measures which assisted clinical evaluation and the particular tool he had used, HCR-20 V3, which had a strong correlation to tools used by Ms O'Neill and Ms Haddad.
- Dr Ellis concluded on Mr Mackey's history, that he had a high loading of historical risk factors associated with violence; that he displayed limited insight into his propensity for violence, but a better understanding of his need for treatment; that while he did not endorse specific violent intent or plans, his long term attitudes to violence as a means of solving problems, are yet to be consistently tested; that he showed some minor cognitive problems and instability adjusting to community settings; and that his use of substances in respect to mood instability, contrary to supervision requirements, indicated a moderate loading of modifiable risk factors, that render internal control of his baseline historical risk problematic.
- Dr Ellis identified future problems associated with violence which indicated that Mr Mackey had a high need for professional services and plans to contain his potential for violence. They included the limited personal supports which Mr Mackey could access; accommodation where he is exposed to criminal associates; and problems engaging in treatment and supervision, indicated by his recent substance use.
- Dr Ellis considered that the 1995 manslaughter charge to be an unlikely model for any future violence by Mr Mackay. His history of fighting in custodial settings as a reaction to a perceived need to demonstrate toughness was reflected in the index offence in a public bar, which had been magnified by intoxication. He concluded that when intoxicated, Mr Mackey's aggression could include use of makeshift weapons or prolonged attacks where physical injury is likely.
- Dr Ellis concluded that Mr Mackey falls into a group of persons with a risk for serious violent offending that is statistically moderate to high risk and in his case, greater than a theoretical average offender, but that specific treatment and supervision would reduce that risk. Given his long period of institutionalisation, no employment skills, historical association with antisocial groups and history of marginal accommodation, Dr Ellis identified various areas where stability needed to be achieved, by supervision. He considered a period of 3 years' supervision to be reasonable for Mr Mackey, in order to improve his functioning in the community and to refine the appraisal of his risk.
- Dr Ellis also considered that Mr Mackey required 12 months in a residential facility, as an initial step to community reintegration, given his current mental state, chronic personality disorder and current attitudes. Long term medical treatment for his chronic substance use, associated with violent offending, was also required, such treatment having a strong association with reductions in criminal and violent behaviour. Psychiatric and psychosocial treatment were also recommended.
- After examining Mr Mackey on 22 May, Dr Roberts concluded that he had suffered a major depressive disorder, which had responded to treatment and was in remission. He also diagnosed Mr Mackey as having a substance use disorder, which he considered was also in remission, but had an uncertain prognosis, given his history. He considered that regular attendance at a Drug and Alcohol Clinic would provide him with a degree of protection.
- It must be observed that Dr Roberts' report suggests that Mr Mackey's account of relevant matters was not complete or accurate, including, for example, as to his background, his use of illicit substances while on parole in 2014 and in custody, or the extent of his past alcohol abuse. Dr Roberts' views, including as to Mr Mackey's prognosis and the risks which he poses are, on the evidence, overoptimistic.
- The account given to Dr Roberts also suggests that he was not entirely frank with Dr Ellis, to whom he did not reveal, for example, having experienced paranoia as the result of his cannabis use.
- Mr Mackey told Dr Roberts of his rapidly escalating use of cannabis and heroin from age 14, to daily use, with opiates and cannabis remaining his drugs of choice, but use also of amphetamines, cocaine, ecstasy, benzodiazepines and methamphetamines. He described cannabis as having lost its appeal, however, because of associated mild paranoia.
- Dr Roberts understood that methamphetamine and amphetamine use had been the cause of the breach of Mr Mackey's parole in 2014. At that time Mr Mackey had also resumed using heroin and was being treated daily with suboxone, but he told Dr Roberts that he had never then been treated for his substance use issues with pharmacological therapy. It was also early in November 2014 that he had undergone 3 days' detox at Nepean Hospital, not the 3 to 4 weeks Dr Roberts understood.
- When Mr Mackey saw Dr Roberts in May he told him that he had commenced suboxene treatment only two weeks prior to the assessment and that the 8mg daily dosage which he was receiving was sufficient, obviating his desire for heroin. Notes in evidence show, however, that on 15 July he told Ms Murray that this level was not holding him and that he wanted to increase his dose.
- Mr Mackey also told Dr Roberts that he had no past issues with alcohol, that when on parole in 2003 and 2004 he had not used heroin, but that he had been binge drinking on weekends, which, he described, had caused him to be a "a nasty arsehole". He also said that he was scared of the potential impact of the resumption of alcohol use.
- In Dunford J's sentencing remarks in 1997, his Honour noted at p 10 that Mr Mackey was not then a regular drinker and not affected by alcohol on the night of the fire, in 2005 Marien DCJ referred to the evidence which Mr Mackey gave on sentencing, that his alcohol use was a problem; that he could not control the amount he was consuming; or his actions when intoxicated; that it had caused problems with his relationship; it had also resulted in he and his partner becoming involved in an incident in which they had both been stabbed and hospitalised; and on two other occasions; had resulted in police attending his home to deal with domestic disturbances. In a probation report, Mr Mackey had acknowledged his problematic use of alcohol and need to address it, but had attended only one alcoholic anonymous meeting, even though while in custody on the manslaughter charge he had undertaken drug and alcohol courses and seen a psychologist. In cross-examination he admitted he saw himself as being an alcoholic and having a problem with violent responses, for which he needed help.
- Dr Roberts also noted the failed attempts to obtain residential rehabilitation for Mr Mackey when on parole in 2014, resulting in his rearrest in December, during, what Dr Roberts described to have been "a chaotic, disorganised episode".
- Mr Mackey told Dr Roberts that amphetamine use made him quiet and withdrawn, on opiates he was normal and that alcohol was a dangerous substance for him. The manslaughter offences had occurred when he was effected by heavy drinking and 10 to 12 bongs of cannabis, over 5 to 6 hours. Dr Roberts understood from documents that Mr Mackey had adopted and encouraged the lighting of the fires, but was not the instigator and did not actually light the fire. He told Dr Roberts that he did not appreciate the risk and that after learning of the death the following morning, spent three weeks in a cannabis induced intoxication. He also explained his regret at his behaviour. The account which Mr Mackey gave Dr Ellis, clearly acknowledged more culpability for what occurred, than what he told Dr Roberts about.
- Dr Roberts noted the circumstances of the 2004 glassing offence, and other violent offences. He considered the glassing to have represented a dramatically aggressive escalation, in response to an accidental bump. Mr Mackey also told Dr Roberts about his internal gaol charges for fighting and drug related matters, including numerous breaches of discipline for failing to provide urine samples.
- Mr Mackey told Dr Roberts that he considered the supervision order unfair, its terms intrusive and embarrassing, but spoke positively of his supervisor, Ms Nowrot and said that he was abiding by its terms.
- Contrary to the account which he gave Dr Ellis of his family background, Mr Mackey described to Dr Roberts a childhood characterised by poverty, drugs and alcohol and having been bullied at school. Dr Roberts noted Mr Mackey's history of depression and observed that he had given a frank and articulate account of his circumstances and had expressed regret for his past conduct, which seemed sincere.
- As was his right, Mr Mackey did not give evidence and so the accounts which he has given those who have examined him have not been tested. It is relevant, in that context, to note that what he told Dr Roberts about his family background and other matters, does not appear to have been accurate. Not only was the account which he gave Dr Ellis to very different effect, both when sentenced by Dunford J and Marien DCJ, the evidence was also quite different.
- Dunford J observed (at 10) that his mother was probably part Aboriginal, but that unlike his co-offender, Mr Mackey had suffered none of the deprivations or disadvantages referred to in R v Fernando (1992) 76 A Crim R 58 and that he had come from a stable, close supportive family, his parents both being hardworking and respected. His Honour found that with their support and his acknowledgment of his wrongdoing, his prospects for rehabilitation were strong. In 2005, Marien DCJ's also referred at p 6 of his sentencing remarks to what Mr Mackey had told a probation officer, about his "close knit and supportive family".
- Dr Roberts noted doubts having been expressed in earlier reports as to the extent to which future violence which Mr Mackey might commit would constitute "a serious violence offence" and a degree of optimism as to his more recent ability to contain his propensity for aggression. He also noted the view that his history of substance abuse and lengthy periods of incarceration had been identified as potentially compromising factors; and that his risk of general reoffending had been estimated to fall into the high range and his risk of violent reoffending, falling into the moderate to high range. He also noted that no VOTP program had been available to Mr Mackey, because that required him to sign off from protection in custody, about which he had genuine concerns.
- Dr Roberts took the view that Mr Mackey's internal gaol charges suggested that if not for his protracted incarceration, his substance use would have endured at a greater level than it has. He observed that intoxication had featured in both the manslaughter and index offences. The efforts pursued to deal with his substance abuse had not prevented his 2014 relapse, but he had demonstrated insight into the propensity of such abuse to bring him into conflict with the law, which was a positive factor, as were the programs he had pursued in custody. His history of abuse since his early teens was a negative prognostic indicator, as was his substance use in custody;
- Dr Roberts noted that Mr Mackey had been assessed as falling into the moderate to high range of risk of committing another serious violence offence, but he took the view that his overall risk of future criminal behaviour fell within the moderate range, given his record of offending even during periods of supervision in the community. He considered Mr Mackey's risk of engaging in a serious violence offence to be low, while he remained abstinent from substances, he having been identified as someone who was able to control his emotions and regulate anger.
- Dr Roberts considered that Mr Mackey's risk would escalate dramatically, however, if he were to relapse to substance abuse, explaining that "[h]is history of having become involved in explosive, highly aggressive an extremely dangerous act, in response to innocuous circumstances, reflects the potential for an escalation of risk to the moderate to high range in the presence of intoxication". He also considered that his history of depressive illness was a factor which also predisposed him to a relapse of substance use.
- Dr Roberts considered ongoing treatment with suboxene at the Langton Centre to be a crucial aspect of treatment expected to offer the most predictable protective influence Mr Mackey against reoffending.
- It must be observed, however, that in 2014 suboxene treatment did not prevent Mr Mackey's resumption of heroin use, nor the conduct which led him to be arrested and charged with the offences for which he is now held in custody. That, it appears, was the result of the resumption of a pattern of offending Mr Mackey has pursued throughout his adulthood, in order to fund his drug abuse. When he returned to custody, he again failed urinalysis because of ongoing substance abuse. This was the very kind of behaviour identified by Dr Roberts as dramatically escalating the risk which Mr Mackey poses of committing a serious violence offence.
- Dr Roberts noted the problem Mr Mackey faces, a residential rehabilitation program being of real potential benefit to him, but strict criteria for entry to such programs precluding him, because of his history of significant aggression. Despite his views as to the level of risk which Mr Mackey posed, Dr Roberts, too, concluded that his successful reintegration into the community required structure and support over a period of up to 3 years.