State of New South Wales v Martin

The relief claimed

1. The plaintiff sought a CDO for a period of one year and, thereafter, an ESO for a period of five years on the conditions annexed to the summons. In the alternative, the plaintiff sought an ESO for a period of five years.
2. The basis of the plaintiff's claim for a CDO of one year was expressed in the following terms in the plaintiff's written submissions of Mr Hammond: "The State seeks a CDO because the defendant remains steadfast in his refusal to participate in intensive therapy to address his alcohol related violence, he rejects community supervision, and he is intransigent in accepting structured accommodation. These all combine to increase his risk to an unacceptable level."

The evidence

1. The plaintiff relied on the following evidence: 1. The affidavit of Nayomi Senanayake, a solicitor employed by Crown Solicitor's Office (CSO), the solicitor for the plaintiff, affirmed 18 November 2016 including exhibit NS-1 (marked Exhibit A); 2. The affidavits of Matthew Ashworth, a solicitor employed by CSO, affirmed 5 December 2016 and 15 February 2017; 3. The affidavit of Cornelius Van Ryn, a Senior Community Corrections Officer within the ESO Team, sworn 6 December 2016; 4. The affidavits of Karen Langdon, the Unit Leader of the ESO Team, affirmed 10 February 2017, 2 March 2017 and 24 March 2017; 5. The affidavit of Angela Rybak, Senior Electronic Monitoring Officer, sworn 15 February 2017; 6. The affidavit of Danielle Matsuo, psychologist, affirmed 17 February 2017; 7. The affidavit of Susan Wojciechowski, an employee of Corrective Services who is also the manager of the Campbelltown Integration Support Centre (ISC), affirmed 11 April 2017; 8. The reports of the court-appointed experts: Dr Jeremy O'Dea dated 8 February 2017; and Dr Jonathan Adams dated 14 February 2017; and 9. The oral evidence of Ms Matsuo, Ms Langdon, Mr Van Ryn and Dr O'Dea given on 27 February 2017 before Latham J.

The facts

1. The defendant was born in 1978. For much of his childhood he lived on the Mission at Wilcannia with his grandmother. He was sexually abused by an adult male health worker when he was about seven years old. He reported the matter to the police and made a statement. The defendant's grandmother, who was concerned about the effect of the abuse, reported to a doctor that the defendant had nightmares. His behaviour at school was also adversely affected by the abuse.
2. The defendant began drinking at a young age, with the concurrence and participation of his family. He also smoked cones of marijuana. He was admitted to hospital in April 1999 as a result of what was diagnosed as a drug-induced psychotic episode. He was noted to be aggressive and reported the use of alcohol and "snow cones" earlier that day. He reported persecutory auditory hallucinations. He remained in hospital for two days for the purposes of alcohol withdrawal. He did not experience any further psychotic symptoms or suicidal ideation during that period.
3. In May 1999 the Health Service reported that he complained of hearing voices and feeling "things creeping all over him". He reported that voices were telling him to kill. It was noted that he was aggressive and smelled of alcohol. He was assessed at the Broken Hill Base Hospital where his presenting symptoms were noted to be "acute psychosis, suicidal and homicidal ideation". A diagnosis of self-induced psychosis was made. He was admitted on 31 May 1999 and discharged on 2 June 1999. The principal diagnosis was alcohol dependence and marijuana abuse. He was advised to decrease alcohol and marijuana intake but he said that he did not want any help from the Drug and Alcohol Service or the Mental Health Service in Menindee.
4. A referral letter dated 1 June 1999 from the visiting psychiatrist and registered nurse recorded alcohol dependence and marijuana abuse. They reported the following history: "He says that he has had a binge alcohol problem for some years and can drink up to a four litre cask of Moselle and a dozen beers in one session on top of a heavy intake of marijuana (twenty cones a day)."
5. His criminal history began in 1999. He committed various summary offences of no particular significance, relating to disruption to public order, when he was intoxicated.

The assaults on Kerry Johnson

1. In March 2000 the defendant began an intimate relationship with Kerry Johnson. He assaulted her on four separate occasions, on 12 April 2000, 13 April 2000, 11 May 2000 and 3 August 2000. He was charged and convicted of three counts of assault occasioning actual bodily harm.
2. The evidence does not include the sentencing remarks, although details of the offences appear from the police facts. However, these assaults were referred to by Barr J when sentencing the defendant for the subsequent murder of Ms Johnson. The following summary of what occurred in the course of these assaults in 2000 is taken from [2]-[3] of Barr J's remarks on sentence (R v Martin [2002] NSWSC 577): "[2] The offender and the deceased knew each other as children and began to live in a de facto relationship in March 2000. They were both addicted to alcohol. On 12 April 2000 a fight erupted between them and there was an exchange of blows. The deceased lost a tooth. No action was taken. On the following day, while the offender and the deceased were drinking together, a man approached the offender and said that he wanted to have sex with the deceased. The offender reacted by repeatedly punching the deceased in the face. The police were called and arrested the offender. The deceased was taken to hospital and treated for injuries to her mouth. On 11 May 2000 the offender pushed the deceased to the ground and kicked her in the head, then jumped on her head with both feet. She bled from the mouth and the nose. The offender was charged with assault occasioning actual bodily harm and an apprehended domestic violence order was issued. [3] The relationship between the two came to an end and the deceased took up a relationship with Mr Kevin Mackay. On 3 August 2000 the offender and the deceased were living in adjoining houses and as the deceased was walking home she had to pass the offender's residence. He came out as she did so and an argument began. He pushed her onto the roadway and punched and kicked her a number of times. She was taken to hospital and kept in intensive care. She was bleeding from the mouth and her nose was swollen. Again the offender was arrested and charged."

The sentence imposed for the assaults and the threats against Ms Johnson made in custody

1. The defendant was sentenced to a 6-month term of imprisonment which commenced on 5 August 2000 and expired on 4 February 2001. While he was in custody serving the sentence for these assaults, the defendant threatened that he would kill Ms Johnson on his release. According to [13] of the sentencing remarks of Barr J, the defendant made those threats because he: "was jealous of the deceased's relations with men and that his resentment led him to wish to do her harm. His resentment was probably made stronger because of the gaol term he had had to serve for assaulting and hurting her."

The murder of Ms Johnson following the defendant's release from custody

1. The events that followed the defendant's release from custody were described by Barr J in the remarks on sentence as follows: "[14] Immediately after his release from Broken Hill Gaol the offender went to the house of the Dutton family, relatives of his, in Broken Hill. The occupants and the offender purchased alcohol and went to Menindee where they spent the rest of the day. They arrived back in Broken Hill during the evening. More alcohol was purchased and they continued drinking. During the evening the occupants noticed that the offender had left the house. [15] On the same day Mr Mackay, the deceased, Mr Rex Johnson, a relative of the deceased, and Douglas Hele were at the Pepper Trees camp. Mr Johnson went to sleep while it was still light and was not woken until after Mr Mackay had found the deceased injured. Mr Hele said that before he went to sleep a young man he did not know came up and asked for a drink of water, then walked away. I accept that evidence and that the man described by Mr Hele was the offender. Mr Mackay says that the offender came to the camp during the night and that he and the deceased walked off together. [16] When a member of the Dutton family arose on the following morning he noticed that the offender had returned to the house and was asleep. He saw blood on his face. Photographs of the offender later taken by the police show blood on both sides of his face and on his ears. A number of people saw the offender with blood on him. [17] The deceased was taken to Broken Hill Base Hospital but because her injuries were so severe she was transferred to the Royal Adelaide Hospital. She died there on 6 February 2001. A post mortem examination showed significant facial and head injuries and also swelling and bruising of the vulva and lacerations to the genitalia. Injuries included lacerations to the scalp, the bridge of the nose, the lips and the tongue. There was bruising to the scalp, eyes, mouth and shoulders. There were abrasions to the back, buttocks and arm. Seven adjoining ribs on the left side were fractured, those injuries being consistent with a heavy fall or stomping. [18] The injuries to the genitalia involved marked swelling to the vulva, lacerations respectively 7.5 centimetres, 5 centimetres, 4.5 centimetres, 4 centimetres, and 2 centimetres long to the labia majora and labia minora as well as other lacerations. The forensic pathologist expressed the opinion that the state of the genitalia was more likely to have resulted from forcible blows to the vulva from a blunt object such as a fist, rock, stick or bottle. Those injuries did not exclude penile penetration before or after the infliction of the injuries. Death resulted from an acute subdural haematoma resulting from blunt head trauma."
2. His Honour also found, at [27]: "There is no evidence of any contrition on the part of the offender for the welfare of the deceased. I am satisfied beyond reasonable doubt, because of the offender's threats to kill the deceased, because he attacked her during the first evening or night after his release from prison and because of the savage nature of the attack that at the time of the attack the offender intended to kill the deceased."
3. The defendant was charged with murder. An indictment was presented in the Supreme Court, which sat for that purpose at Broken Hill.

The circumstances of the plea of guilty

1. On the second day of the trial, when Barr J had allowed evidence of the prior assaults on the deceased; and his threats, while in gaol, to kill her when he got out, the defendant changed his plea to guilty.

The history of alcohol and drug abuse

1. The sentencing judge referred to the defendant's history of alcohol abuse as follows: "None of the evidence shows precisely how much the offender had to drink between the time of his release and the attack. I assume that it was a substantial amount, as he was accustomed to drinking. Alcohol was part of the offender's life. . ." ([28]) "Alcohol is not irrelevant to the Court's consideration, for it needs to be considered as part of the circumstances of cruelty, violence, deprivation and hopelessness that surrounded the offender during his formative and adult years." ([29]) "Both the maternal and paternal sides of the offender's family have strong tribal links in far western New South Wales. He grew up in Wilcannia. His parents drank heavily. They separated when he was three years old." ([30]) "When he was seven years old the offender was sexually abused over several months by a health worker. He was unable to tell anyone about it and still has difficulty doing so. He began to behave badly at school and his grandmother sent him to live with his mother and her partner. The offender, who loved and trusted his grandmother, was badly affected by their separation. His mother's partner and his mother drank a lot and the partner used to hit his mother and destroy things in the house. Both mother and partner fought regularly. The children were beaten with anything that came to hand; jug cord, broomstick, hose." ([31]) "The offender was expelled from school in Year 10 for swearing at a teacher and failed as a result to get his School Certificate. He has no formal qualification. He began to carry out unskilled work for the scheme by which Aboriginal people worked for the dole. As a child he had begun to drink alcohol and he remembers his mother getting him drunk on his fifteenth birthday. After that, he was drunk regularly each week. He used to draw his pay and spend most of it on drink. He also took up cannabis in his teenage years and abused it." ([32])

The sentence imposed for murder

1. The defendant was arrested on 5 February 2001 and charged with murder. He remained in custody from 5 February 2001. He was sentenced by Barr J to a term of imprisonment of 16 years with a non-parole period of 12 years. Accordingly, the earliest day he was eligible for release was 4 February 2013. He was initially classified as an A2 Maximum Security inmate and incarcerated at Goulburn.
2. On 27 May 2008 the defendant was interviewed by the Serious Offenders Review Council (SORC), as a result of which his classification was changed in June 2008 to B Medium. He was reviewed from time to time by SORC, which noted that he did not receive visits from family because of the distance. He was transferred to Wellington Gaol on 2 August 2009 and to Bathurst Gaol on 17 December 2012.

Scores by reference to Static-99

1. While he was in custody, the defendant was assessed by reference to the Static-99 assessment tool, which is designed to predict, by reference to sex offenders generally, the risk of re-offending. On 3 August 2009 he was assessed as having a score of 4, which put him in the category of medium to high risk. He was assessed again on 21 April 2010 and was given a score of 5, which kept him in the same category. The reason for the difference was that the first assessment was based on his having three or fewer prior sentencing dates (apart from the index offence); whereas the later assessment recorded that he had had four or more.

Proposal that defendant be referred to sex offender programme

1. On 22 April 2010 the defendant was asked to give his consent to being referred to a sex offender programme. The defendant withheld his consent and said, "I am not a sex offender."
2. In about 2010 the defendant started working at the print shop in gaol. In 2011 he asked to be transferred to Broken Hill Gaol so that he could be closer to his family but his request was never granted.

Assault while in gaol

1. At 6.37am on 6 April 2011 the defendant, who was incarcerated at Wellington Gaol, assaulted a female prison officer by grabbing her buttocks. He was charged with assault with an act of indecency and placed on a three-month segregation order. On 2 April 2012 he was sentenced to a fixed term of imprisonment for three months to commence on 5 February 2013 and expire on 4 May 2013. It therefore ran from the expiry of the non-parole period for the sentence which had been imposed for murder.

Consent to referral dated 10 August 2011

1. On 10 August 2011 the defendant filled in a referral form consenting to a sex offender programme. He answered the request to "[b]riefly describe what happened" as follows: "Just got out of gaol, got drunk and went looking for her to have sex with her and after finished just flogged her. Slept there that night (sex was consensual) went and had a shower at uncle's in the morning then went back to see if she was alright then cops came and arrested me."
2. The defendant identified "me and her family" as the persons affected. When asked to identify who or what was responsible for the sexual offending, the defendant said: "was consensual". He nominated "parole" as his reason for wanting to participate in a sex offender programme. He identified "alcohol" as the issue or problem that he needed to address. When asked what he expected to gain from treatment he answered: "Can't gain nothing out of it." He nominated the "Getting SMART" course as the treatment programme he had already undertaken.

Consent for referral form for Violent Offenders Therapeutic Programme signed on 10 August 2011

1. On 10 August 2011 the defendant signed a consent for referral to the Violent Offenders Therapeutic Programme (VOTP). In this form, the defendant said that he was seven years old when he first used violence to engage in a "family rivalry" fight with others from another family because it was "how [he was] brought up" and that he came "from a violent upbringing". He said that he was 21 when he was first arrested for a violent offence and wrote: "fight with partner as she was with other blokes". The defendant indicated on the form that he had engaged in street fights; violence towards his partner; property destruction; and verbal violence towards family members, custodial staff and the police. He admitted to having used a stick for the purposes of assault. He said his violence is "alcohol related" and that he engages in verbal violence when he feels that he is being lied to. He said that he had not engaged in violence since the murder but had engaged in verbal violence two months ago. When asked to describe the most violent things he had done, he nominated the murder and the assaults occasioning actual bodily harm, which had all been committed when he was 21. He nominated alcohol and that his partner had slept with others as "provoking factors". On this occasion when asked to describe what happened, he wrote: "Snapped, went off. Told while in gaol that she had sex with my father. Got out of gaol went and got drunk then that night went looking for her."
2. He identified the persons affected as "me, her family" and identified "me and alcohol" as being responsible for his violent offending. He identified the issue to be addressed as "anger" and said that he thought he would gain "common sense" from treatment.

The finding that the defendant was unsuitable for VOTP and his refusal to participate in Custody Based Intensive Treatment

1. On 22 September 2011, Lisa Bernstein, Specialist Psychologist at Corrective Services, determined that, although the defendant met the eligibility criteria for VOTP, he was deemed unsuitable to participate. On 27 September 2011, the defendant was, however, found suitable for Custody Based Intensive Treatment (CUBIT) and was placed on a waiting list. On 14 October 2011 the defendant was offered a place on a CUBIT course. On 17 October 2011 the defendant signed a form to say that he had decided not to participate in CUBIT and refused to provide reasons.
2. Ms Matsuo was the Director of the Sex and Violent Offenders Therapeutic Programs from October 2010 until January 2014. I note Ms Matsuo's evidence that the defendant was probably deemed to be unsuitable for VOTP because VOTP was solely for those who committed violent offences outside a domestic context. Ms Matsuo said that after the Act was amended in 2013 to include violent offenders, VOTP was reviewed so as to include offenders who committed violent offences in a domestic context. In July 2016 the defendant was offered a referral to VOTP but he declined to consent to the referral, which was, as a result, abandoned. Ms Matsuo gave oral evidence on 27 February 2017 as to the content of the VOTP course, including with respect to violence in the context of substance abuse.

SORC interviews and assessment

1. On 12 September 2012, the defendant was interviewed by SORC again. He said that he did not receive any visits from family but he occasionally rings them. He also said that he does paintings which he sends to his nephews and nieces. On 7 November 2012 SORC recommended that the defendant be transferred from Wellington to Broken Hill. SORC noted the view of Mr Townsend, the Classification Manager of Aboriginal Programs, that a transfer to Broken Hill Gaol might motivate the defendant to undertake programmes and would enable contact with his mother and other family members. This recommendation was not implemented because it was thought that the defendant's presence at Broken Hill Gaol would give rise to conflict in the centre because of the connection between inmates there and the deceased.
2. SORC noted that, wherever possible, the defendant has been employed in gaol and has also attended educational courses in Aboriginal Art; Occupational Health and Safety; First Aid; Koori Education; Horticulture; and Vocational and Community Engagement. With the exception of the incident involving the staff member at Bathurst, he was regarded as not presenting management problems. He had been described as a "quiet and polite inmate".
3. In its report dated 5 March 2013, SORC advised the State Parole Authority, pursuant to s 197(2)(b) of the Crimes (Administration of Sentences) Act 1999 (NSW), as follows: "Four years hence the offender will be entitled to unconditional liberty. That would seem to accord with his wishes. Hitherto he has failed to take any step of substance to address his behaviour. Even his one act of Misconduct was one of violence dealt with by the criminal justice system. The Council's concerns for the offender and the community are grave indeed. Council advises that it is not appropriate for the offender to be considered for release on parole."

Pre-release report dated 19 February 2013

1. On 19 February 2013 a pre-release report was prepared in respect of the defendant as he was shortly to become eligible for release on parole. It was noted that he had been the subject of twelve urinalysis reports, all of which returned negative. Case notes recorded the defendant's abusive and aggressive behaviour towards custodial staff. It was recorded that he had completed the Getting SMART program; had been found unsuitable for VOTP and had refused to participate in CUBIT or other programs, such as the CALM (Control Anger and Learning to Manage It) program. The report noted that he had attended weekly horticulture classes at TAFE and had also completed a Certificate in Vocational and Community Engagement. He was described as "evasive" when asked whether he wanted to be released on parole. The author of the report noted that he was regarded as an untreated sex offender as he had not done the CUBIT programme. The report concluded: "Service records indicate that the inmate continues to demonstrate a propensity for aggressiveness given the number of negative case notes commenting on his abrasiveness towards Department staff. During a phone interview with the inmate, he became argumentative when discussing the offence and post-release accommodation and then terminated the interview by hanging up. Given the inmate's reluctance to cooperate with this Service during the preparation of this report, it is respectfully recommended that Mr Martin not be released to parole at this time."

Reviews by State Parole Authority

1. In reviews dated 22 March 2013 and 3 May 2013 the State Parole Authority decided that the defendant's release to parole was not appropriate on the ground that he had not participated in appropriate programmes to address his offending behaviour.
2. On 28 January 2014 the defendant signed a form to indicate that he did not wish to be considered for release on parole. However, on 4 April 2014 the defendant wrote to the State Parole Authority objecting to the refusal of parole.
3. On 16 November 2015 Sam Ardasinski wrote to Correctional Services and explained that the defendant was being considered for an order under the Act. He emphasised the importance of the defendant doing courses to address his offending behaviour and foreshadowed the possibility of this Court ordering a CDO until he had completed the courses.
4. On 2 February 2016 the defendant signed a form indicating that he did not wish to be considered for release on parole.
5. On 1 March 2016 SORC advised the State Parole Authority as follows: "This prisoner continues with an entirely negative attitude towards his rehabilitation and his sentence expires in February 2017. He is being considered for a request to extend his custodial order. It would be undesirable for him to be released without supervision and for that reason we believe all options should be available to be considered by the Parole Authority and only for that reason we advise it would be appropriate to consider his release to parole as one option."

Risk assessment report by Mr Ardasinski dated 14 May 2016

1. Mr Ardasinski considered the defendant to pose a moderate-high risk of re-offending, largely because of his poor control over alcohol and substance abuse and the impact this has on his propensity for violence. He considered the defendant to be untreated as he has not undertaken a course of sufficient intensity to address his violent risk factors, although he had done the SMART course which was aimed at his substance abuse. Mr Ardasinski reported that he considered that although the defendant demonstrated some insight into how he might avoid violence in the future, he lacked the skills to achieve this and also lacked the motivation to change. Mr Ardasinski also addressed the relative benefits of an ESO and a CDO. Of the former he said that the mitigation of future risk might be enhanced by such an order, which could assist in monitoring his transition to the community and enforce abstention. He said of the latter, that a further period of detention would enable him to undertake the CUBIT course which could address the risk of sexual violence which the defendant continues to pose.
2. Mr Ardasinski identified the following dynamic risk factors: substance abuse; intimate relationships; hostility towards women; and a violent lifestyle. Mr Ardasinski considered that the defendant's potential for serious violence would be transferred to any future relationship without intervention (by way of further courses) to address anger, attachment and jealousy. He described the following violent cycle: "c. VIOLENCE CYCLE - hostility and resentment towards women, violent lifestyle Mr Martin's violence followed a clear pattern, whereby he would drink to excess - either in company with his partner or separate to her - and then some conflict within that relationship would arise which would typically revolve around some perceived slight or feeling of jealousy or inadequacy. Mr Martin likely holds a sense of hostility and other problematic attitudes towards women in general, which will be most pronounced within domestic settings. He demonstrates an insecure attachment style within his intimate relationships which likely has a basis in Mr Martin's upbringing, and may relate to his fractured relationships with his primary caregivers (mother, father, grandmother) growing up."
3. Mr Ardasinski postulated the following scenario if the defendant were to be released without supervision: "42. . . .However it is considered that were Mr Martin to be released without any further intervention or any community supervision, he is likely to return to a community in western NSW (since he has family ties to the region), where he will likely engage in excessive alcohol and possible drug use. Such actions will heighten his risk of engaging in acts of violence, and with any perceived slight or minor provocation, Mr Martin's potential for violence, including serious violence, will be manifest. 43. On the balance of the evidence the above high risk scenario could potentially result in serious violence, since Mr Martin has, on more than one occasion, kicked his victim to the head and stomped on her head after they have fallen to the ground. There also appears to have been the opportunistic use of makeshift weapons in the form of a rock and a nearby flagon, which the evidence suggests were also used in the index attack. There certainly appears to be a risk that Mr Martin may commit another serious violent offence, and the fact that he has failed to adequately address his aggression and substance abuse issues during this custodial sentence would indicate that this risk is chronic in nature, given the availability of alcohol in the community and the demonstrated empirical link between substance abuse and repeat domestic violence (Eke et al, 2011)."
4. Mr Ardasinski concluded: "47. Mr Martin is a 37-year old Aboriginal man whose risk of violent reoffending is estimated to be in the Moderate-High risk category relative to other men who have offended violently. It was further determined that, due to his failure to address the risk factors of aggression, intimacy deficits and alcohol abuse which have resulted in lethal violence previously, Mr Martin's risk of future violence may include the potential for further serious violence."

Risk management report of Cornelius Van Ryn dated 8 June 2016

1. Mr Van Ryn is a Senior Community Corrections Officer with the ESO Team. On 25 May 2016, Mr Van Ryn interviewed the defendant for the purposes of preparing a risk management report. The defendant told him that he wanted to return to Cobar to live with his aunty and cousin. It emerged that he had had no contact with them since his incarceration and was unable to provide contact details. The defendant also told Mr Van Ryn that he would prefer to be subject to a CDO rather than a ESO as he considered that he would have difficulty complying with the conditions of an ESO. Mr Van Ryn set out details of his management strategy if an ESO were to be made. This regime would involve weekly meetings with a view to building rapport with his Departmental Supervising Officer (DSO) and also motivating the defendant to engage with Forensic Psychology Services (FPS) and to prepare schedules with a view to helping the defendant to avoid high-risk situations as well as electronic monitoring and random checks to ensure compliance with schedules and curfews. Mr Van Ryn concluded his risk management report by indicating that the risk management plan would be reviewed every two months and updated as necessary to reflect significant changes to the defendant's circumstances.
2. Mr Van Ryn also swore an affidavit on 6 December 2016 in which he deposed to the services and facilities which are available in the Sydney metropolitan area to persons who are subject to an ESO but which are not available elsewhere in New South Wales. Such facilities and services include: electronic monitoring, counselling sessions through FPS, the ESO team itself and the availability of accommodation for recently-released prisoners at the COSP facilities. Ms Rybak also addressed these issues in her affidavit of 15 February 2017

The provision of suitable accommodation

1. The defendant refused, for a considerable period, to co-operate with efforts by the ESO Team, including Ms Langdon, the Unit Leader, to find post-release accommodation for him. There is considerable evidence about the attempts made by the team. It was not until what was expected to be the final hearing of this application before Latham J on 27 February 2017 that the defendant accepted a referral to COSP or ISC.
2. However, in her affidavit affirmed on 11 April 2017 Ms Wojciechowski, the Manager of the Campbelltown ISC deposed as to the accommodation available at ISC. It differs from COSP facilities because it offers individualised intervention. She received an accommodation referral form in respect of the defendant on 24 March 2017. Her original assessment was that the defendant was eligible but not suitable for ISC accommodation as he was an untreated violent offender with "undertreated alcohol and other drug issues". However, Ms Wojciechowski subsequently amended her assessment after discussion with her supervisor, as a result of which the defendant has been assessed as eligible and suitable for residence at the ISC as long as he is willing to comply with the conditions of the ISC, including the curfew and treatment requirements at FPS. She deposed: "It is my belief that the best interests of the community are served by Mr Martin being provided with support and accommodation at the ISC, and the current dynamics of the ISC are favourable to accepting him as a resident."

Dr O'Dea

1. As referred to above, Dr O'Dea interviewed the defendant on 28 December 2016. He described his presentation as follows: "Mr Martin presented as a relatively fit and healthy aboriginal man of his stated age, with a missing front upper tooth, a relatively neat haircut and beard that were greying, and evident tattoos. Whilst the interview was conducted with a Perspex window between the two of us, he was relatively cooperative through the interview and we were able to establish some rapport. He appeared of adequate intelligence, and although at times, he was somewhat dismissive and unwilling to go into detail regarding his history, and at other times showed flashes of anger and/or entitlement, and often stressed his point of view in a forceful manner, he was able to display a wide range of appropriate emotional responses, with no undue anxiety or agitation was evident at interview. No psychosis was evident at interview. He displayed limited remorse or contrition, focusing more on his problems and the victim's role in his offending behaviours, rather than the impact of his actions on the victims. He also did not convey a clear commitment and pathway to change."
2. Dr O'Dea addressed potential risk factors of being in an intimate relationship and taking drugs or alcohol. He opined that the defendant ought remain totally abstinent from drugs or alcohol in the long term in order to manage and minimise the risk of engaging in further violent offending behaviours. Dr O'Dea considered that there would be a high degree of probability that the defendant would pose a significant risk of committing a further serious violence offence in the community in the long-term without supervision and abstinence from drugs and alcohol. He also considered that the risk could be adequately and appropriately managed in the community under an ESO with the conditions set out in the annexure to the summons filed in these proceedings. He added: "In addition, further time in custody, including to participate in the VOTP or CUBIT, or other psychological programs in custody, is unlikely to significantly reduce Mr Martin's risk profile on his subsequent release into the community."
3. Dr O'Dea considered the risk posed by the defendant was a long-term risk, which was at least of five years duration.
4. In his oral evidence Dr O'Dea disagreed with the proposition put to him in cross-examination that it would augur well for potential abstinence that he had had a prolonged period of time of abstinence in custody. Dr O'Dea said that he was not confident that, without support and strong supervision, the defendant would be able to remain abstinent from alcohol on his release. Dr O'Dea did not regard the lack of violence in gaol as of particular weight because the violence the defendant had displayed in the past was in relation to women. Dr O'Dea identified alcohol and other drug use as the "central issue" for the defendant and said that if he were to remain abstinent from alcohol and drugs, his risk to the community would be well-managed.

Dr Adams

1. As referred to above, Dr Adams interviewed the defendant in February 2017. They discussed the possibility of a CDO or ESO. Dr Adams recorded the defendant's response in the following paragraph: "With regards to the possibility of a CDO or an ESO he commented, "I consider it double punishment". Out of the two he said he would prefer a CDO, because "jail's easy, I've adapted to jail life". Mr Martin was aware of the various potential conditions of an ESO, and commented, "I'm not going to abide by it". He referred to the possibility of having a GPS anklet, and remarked, "I'll probably just cut it off and throw it away". With regards his potential supervision failure, he commented, "It's your fault not mine … I told you what I'm going to do…""
2. Dr Adams observed that it was reasonable to expect that the defendant would experience problems with professional services and treatment in light of his expressed attitudes. Dr Adams considered that the defendant's offending behaviour in custody towards the female prison officer and his reluctance to engage in treatment were markers of his underlying attitude towards the index offence. He questioned whether there had been any substantive change in the defendant's views of his offending conduct during his time in custody. Dr Adams noted that the defendant continued to try to shift responsibility to others, both by blaming the victim for his offending conduct and also, in the course of the interview where he said, in the exchange extracted above, "It's your fault, not mine".
3. Dr Adams considered that his management needs have been well addressed in custody but said that this might "significantly alter" if he is subjected to a CDO, "given his concern about the absence of justice". He considered that the defendant would pose a "significant risk of committing a further act of serious violence" if released from custody. Dr Adams was concerned that the defendant's risk could not be adequately managed in the community by reason of his negative attitude to an ESO and his stated intention not to abide by conditions. Of the conditions proposed by the plaintiff, Dr Adams said: "In my opinion these conditions provide an appropriate framework for addressing Mr Martin's risk management needs, as long as he demonstrates a willingness to comply with the conditions. At the time of my assessment this was not the case."
4. Dr Adams considered the defendant's risk management needs would be long term and opined that an ESO of five years "could not be considered inappropriate".

Whether a CDO ought be made

1. The only purpose for which a CDO was sought by the plaintiff was to ensure that the defendant participated in the two custody-based programmes appropriate to his circumstances: CUBIT and VOTP. A CDO of one year was sought for that purpose. I note that the defendant agreed to undertake VOTP in 2011 and was regarded as eligible but unsuitable for it. He has since refused to consent to a referral to that programme. The defendant has consistently maintained that he ought not have to participate in CUBIT because he is not a sex offender, having been convicted of murder, not sexual assault.
2. The defendant submitted that the risk posed by the defendant of committing a serious violence offence if released could not be adequately managed by an ESO. Mr Hammond contended that the defendant's failure to engage in any real treatment in gaol to address his substance abuse and his attitudes to violence, particularly towards women with whom he is in an intimate relationship, meant that the risk could not be sufficiently ameliorated until he had completed custody-based courses in respect of those matters. He identified the two courses as CUBIT and VOTP. I note that there has been some change in the defendant's position since the plaintiff first applied for a CDO. In particular, he has indicated his preparedness to live at a COSP facility if an ESO were granted, as reflected in Ms Hawkins' instructions referred to above.
3. I have three reservations about ordering a CDO in the present case. First, it is foreseeable that the defendant will continue to refuse to engage in CUBIT and VOTP even if a CDO is imposed, having regard to his intransigence in the past. In this event, he will have been incarcerated for a further year to no good purpose. Secondly, Drs Adams and O'Dea do not consider that the risk he poses will be significantly ameliorated by participation in those courses. Thirdly, Dr Adams has referred to the potential for destabilising the defendant considerably if a CDO were imposed.
4. In my view, for the reasons set out in more detail below, the best way of addressing the risk posed by the defendant to the community is to subject him to an ESO which will manage the risk by the imposition and enforcement of appropriate conditions. If the defendant's DSO can build good rapport with him and if he is able to settle into the accommodation at ISC, he may be able to remain abstinent from alcohol and drugs and may have a sense of purpose, which was lacking in his youth and has been, to some extent, lacking in gaol. Far from diminishing the risk, the imposition of a CDO for the purposes of requiring him to complete these courses may have the opposite effect and aggravate it, particularly if he feels aggrieved by the continued incarceration. This is not to say that his wishes are by any means determinative, particularly in circumstances where he has expressed contradictory sentiments on the topic. However, the facilities and services available to the defendant through the ESO Team, not least of which being the contributions made by the DSOs, could potentially have a beneficial effect on the defendant and, in turn, protect the public from his violent offending.
5. In these circumstances I propose to address below only those statutory provisions which relate to ESOs, rather than CDOs.

Whether the defendant is a "high risk sex offender"

1. The defendant meets the definition of "sex offender" in s 4 of the Act, having been sentenced for a number of "serious sex offences". In these circumstances he is a "high risk sex offender" if I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2). I am satisfied of that matter for the reasons given below.

Section 9: the matters to be taken into account

1. I shall address each of the matters in s 9(3) in turn, in so far as each is relevant. However, I propose to address safety of the community (s 9(3)(a)) in a compendious way at the end since many of the other factors also concern this matter and are also relevant to the assessment or risk and whether it is "unacceptable".

Section 9(3)(b): the reports of experts appointed under s 7(4)

1. I have addressed the reports of Drs Adams and O'Dea above. Their views are that the defendant is a high risk sex offender, whose risk could be managed in the community pursuant to an ESO. They opine that the conditions proposed by the plaintiff are reasonable and appropriate and that, by reason of the long-term nature of the risk posed by the defendant, an ESO of five years is appropriate.
2. Dr O'Dea said in evidence that the defendant appeared to have limited insight, contrition or remorse as well as limited "ability to draw on personal resilience . . . to stop his behaviours in the past, including substance abuse".

Section 9(3)(c): assessments prepared by other psychiatrists or psychologists or registered medical practitioner as to the likelihood of the offender committing a further relevant offence and the level of participation in such assessment

1. Ms Matsuo gave evidence before Latham J as to the risks posed by the defendant by reason of the defendant's failure to have any sustained treatment for substance abuse. She said that although there have been very few instances of violence while in custody this did not provide any real indication of whether he would be able to desist in the community, particularly if he were in a domestic relationship, which she regarded as the situation which posed the greatest risk.
2. I have referred above to the report of Mr Ardasinski, who considered the defendant to pose a moderate-high risk of re-offending because of alcohol and substance abuse and his underlying tendency to resort to violence towards women with whom he was intimate.

Section 9(3)(d): the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence

1. The assessments of the defendant by reference to the Static-99 measure have resulted in an assessment that he has a moderate-high risk of re-offending relative to other violent offenders.

Section 9(3)(d1): any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community

1. Mr Van Ryn's report, which has been addressed above, sets out the way in which the defendant can be managed in the community were an ESO to be granted. I note that the facilities and services required are only available in the Sydney metropolitan area but that, if the defendant's capacity to manage himself and abstain from drugs and alcohol is adjudged to be sufficient, the conditions can be relaxed to permit him to live in the country, where he would prefer to be.

Section 9(3)(e): any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs

1. As referred to above, the defendant has steadfastly refused to participate in CUBIT. Although he consented to a referral to VOTP, he was deemed unsuitable and, later, when invited to consent to a referral, he refused. Nonetheless he has undergone the SMART Recovery Programme.

Section 9(3)(f): the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

1. The defendant has not been on parole or subject to an ESO. Accordingly this factor is not relevant in the present case.

Section 9(3)(h): the offender's criminal history and any pattern of offending behaviour disclosed by that history

1. The defendant's criminal history is referred to above. The only matters of real significance occurred between April 2000 and August 2000 when he assaulted Ms Johnson on four occasions, three of which occasioned actual bodily harm. The most serious offence is the index offence of murder, which was committed in February 2001. It is of note that he was only at liberty for a few hours before committing the index offence, after having served a term of six months in custody. To the extent that this offending demonstrates a pattern, it is a pattern of violent offending towards a woman with whom he was in an intimate relationship, which was over by the time of the later assault and murder.

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

1. Passages from the remarks on sentence of Barr J have been extracted above. His Honour referred to the defendant's circumstances of deprivation and alcohol and drug abuse, as well as to the circumstances of his upbringing. These remarks show the longstanding nature of the problems that give rise to the risk the defendant currently poses to the community.

Section 9(3)(i): any other information that is available as to the likelihood that the offender will in future commit serious violence offences

1. The defendant's resort to alcohol on the day of his release and his subsequent violent acts with fatal consequences are powerful indications that he deals with conflict with alcohol and substance abuse, sex and violence.

Section 9(3)(a): the safety of the community

1. I consider that the risk posed by the defendant to the community, and, in particular, to any woman with whom he is in an intimate domestic relationship, is high. His upbringing, which condoned, if not encouraged, alcohol and substance abuse, as well as violence towards women in a domestic environment, appears to have conditioned his responses to Ms Johnson. There is no reason to suppose that the pattern would not be repeated with any other woman. I do not consider there to be any reasonable grounds to believe that the defendant will be able to remain abstinent from alcohol and drugs without considerable support and assistance. Intoxication by alcohol and drugs appears to disinhibit him, with disastrous consequences for any woman with whom he is intimate. He does not appear to have any real insight into the consequences of his behaviour, or even that it is wrong to attack another person, much less a woman with whom his is intimate.

Conclusion

1. For the reasons given above I am satisfied that, unless an ESO were ordered, the risk of the defendant committing further violent offences would be an unacceptable one. I am satisfied, on the basis of the evidence as to the long-standing nature of the risk factors and in particular opinions of the Court-appointed experts, that it is appropriate that the ESO run for the maximum duration permitted by the Act of five years.
2. I have considered the conditions proposed by the plaintiff and taken account of the Court-appointed experts' opinions about the conditions. I consider them to be both reasonable and appropriate to address and manage the risk posed by the defendant, which would otherwise be unacceptable.

Orders

1. On 12 April 2017 I made the following orders: 1. An order pursuant to ss 5F and 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), that the defendant be subject to a high risk violent offender extended supervision order for a period of 5 years from 16 April 2017 and pursuant to s 11 of the Act direct that, for the period of such extended supervision order, the defendant comply with the conditions set out in the Schedule to these reasons.

GERARD THOMAS MARTIN Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Any reference to DSO includes any other person supervising the defendant

Monitoring and Reporting

1. The defendant must accept the supervision of CSNSW until the end of the Order.
2. The defendant must report to the DSO.
3. The defendant must follow all reasonable directions by his DSO.

Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by the DSO.

Schedule of Movements 5. If directed, the defendant must provide to his DSO a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency. 8. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation 9. The defendant must live at an address approved by his DSO. 10. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO. 11. The defendant must allow his DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 12. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 13. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions 14. The defendant must not leave New South Wales without the approval of CSNSW. 15. The defendant must surrender any passports issued to the defendant to CSNSW. 16. The defendant must not go to a place if his DSO tells him he cannot go there. 17. The defendant must not attend any place where alcohol or drugs are illegally sold.

Part D: Employment, finance and education 18. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 19. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 20. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol 21. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 22. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 23. The defendant must not enter any licensed premises without the approval of his DSO. 24. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Associations with Others (not children) 25. The defendant must not associate with people that his DSO tells him not to. 26. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. 27. If the defendant intends to commence to live with someone: (i) he has to tell his DSO before commencing to live with the person; and (ii) if required by his DSO, he must either: (a) tell the person of his criminal history; or (b) give consent for the DSO to tell the person of his criminal history. 28. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part H: Weapons 29. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or any prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.

Part I: Search and seizure 30. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 31. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search; and b. to the extent practicable, a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 32. During a search carried out pursuant to condition 30 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 33. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 34. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 30 to 33 above.

Part J: Personal details and appearance 35. The defendant must not change his name from Gerard Thomas Martin or use any other name without the approval of his DSO. 36. The defendant must not change his appearance without the approval of his DSO. 37. The defendant must let CSNSW photograph him. 38. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part K: Medical intervention and treatment 39. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 40. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 41. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 42. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 43. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 44. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW. 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: 18 April 2017