State of New South Wales v McGorm [2019] NSWSC 484 | Case summary

Supreme Court of NSW|2018-11-28|Before: Walton J

Background Matters

The following summary of matters related the defendant's background and development, including psychiatric and medical history, is derived from the psychiatric report of Dr Ellis.
The defendant is a 26-year-old single Australian man with no dependents. He has been living with his grandmother and grandfather for the past year whilst on release from custody. He is unemployed and collects a "Newstart" benefit.
He sees his general practitioner weekly, a psychiatrist at the Wyong Mental Health Service and a psychologist on a monthly basis. He is prescribed olanzapine (antipsychotic medication) 10 mg twice daily, paliperidone (antipsychotic medication) 3 mg in the morning, oxazepam (sedative medication) 15 mg twice daily and methadone (opioid substitution medication) 70 mg daily.
As to his background and development, the following may be noted: 1. He was an only child. 2. His parents separated when he was born. He had no contact with his father. He was raised by his mother. 3. He reported a good relationship with his mother to Dr Ellis. However, other reports indicate a tumultuous relationship with his mother. She is reported to have used cannabis and had a major mental illness. She died of breast cancer in 2018. 4. He attended school until year 8. He completed year 10 whilst at college. He said he cannot remember school. He reported being admitted to the Baxter Juvenile Justice Centre overnight on one occasion while school age. Other reports note behaviour problems at school, particularly fighting. 5. He had one girlfriend at the time of the offence. He has not had any subsequent relationships. He has had periods of brief employment. He has no formal vocational qualifications.
As to the defendant's "psychiatric history", Dr Ellis reported: He reported an admission to the psychiatric hospital at Wyong two months ago. He self-presented with symptoms of gaps in his memory. He was admitted for one week. No documents were available regarding this admission. He started regular prescription of psychotropic medication in prison in 2017 where he was diagnosed with schizophrenia. He had briefly been prescribed the antidepressant sertraline in his teenage years. There are references to a diagnosis of ADHD in childhood through the documents, however no details. He was never treated for ADHD. I note in 2011 he saw a psychiatrist Dr. Scott. He was noted to be at high risk of developing a psychotic illness on the basis of a maternal history of mental illness, and some attenuated psychotic symptoms. He described his time in the violent offender treatment programme. He said it was "all right". He said he was he said that he was hearing voices during the sessions, his thoughts echoed aloud and not on medication. He said he was anxious sitting in the group. He said he was generally worried but did learn to talk about things and "not bottle up emotions". He said that he learned to ask for help. He was noted to participate in a mixed manner, but was considered to have participated satisfactorily. He said that he had completed the equips aggression course. He said that he felt this was "a good course". He said that currently he was engaged in counselling around grief. His mother died whilst he was in hospital recently. He said that his mother's death has affected him badly. It is hard for him to put it in words however he feels upset all the time. He had a screening measure of intelligence in 2015 placing him in the average range. A self-report personality questionnaire in the same year showed elevations on multiple domains of personality dysfunction. There is no history of suicide attempts or self-harm.

Criminal Offending

The defendant's criminal history consists of juvenile convictions for destroy or damage property, common assault (domestic), breach bail, offensive behaviour and possess drug. Between the years 2010-2017, as an adult, the defendant committed a range of offences: enter dwelling with intent to steal, possess housebreaking implements, breach bail, drive suspended, destroy or damage property, break and enter, common assault, refuse sample, possess drug and custody of knife in public.
His institutional charges also include assault, possess drug, possess drug implement, unlawfully use phone/fax, disobey direction, intimidation, deface cell, possess offensive weapon/instrument (namely, a makeshift "shiv"), fail and refuse urine tests, intimidation and failure to comply with routine.
Whilst the offence is the only "serious violence offence" on his record, the defendant committed two further offences that were either violent in character and/or included a weapon: 1. On 29 July 2007, the defendant was arrested and charged for malicious damage ("the 2007 offence"). He was 15 years old at the time. The agreed facts are that the defendant, in company with CO1 (the same co-offender as the offence) and another young person ("CO3") threw branches onto a road and struck the victim's (V3's) car. A summary of those agreed facts, derived from the Police Facts Sheet, follows: 1. V3 slammed on the brakes, her car skidded and then stopped. The defendant and CO1 approached V3's car and started kicking the driver' door. V3 telephoned triple-0. 2. The defendant, CO1 and CO3 hid in nearby bushes. V3 drove to a petrol station nearby and called her boyfriend, M9. When M9 arrived, he and V3 drove, in separate vehicles, towards Chain Valley Bay. 3. While driving V3 saw the defendant, CO1 and CO3 on the side of the road. V3 and M9 stopped and got out of their cars a short distance away. V3 told M9 they had just driven past the persons who had struck her car. M9 chased down the group and caught hold of CO1. The defendant and CO3 hid in the bushes. M9 and V3 called the police. 4. While M9 and V3 (holding CO1 with them) waited for police to arrive, the defendant and CO3 threw rocks from the top of an abandoned building, aiming it at V3 who stood near her car. The rocks narrowly missed V3 but hit her car's front windscreen, bonnet, roof, nearside front guard, door and rear door. Fearing for their safety, V3, M9 and CO1 jumped into M9's car and drove a short distance away till police arrived. 1. On 21 April 2009, the defendant was sentenced in the Children's Court to bonds for damaging property and common assault. He was also cautioned for behaving in an offensive manner. However, it may be noted that no court records were provided in relation to that offending. The only material provided, in that respect, was the aforementioned Police Facts Sheet in relation to the 2007 offence, which does not refer to a common assault charge. The fact that those records were not available reduces, to some extent, the weight that may be attached to this factor beyond it representing a historical offence involving violence. Notwithstanding that fact, it is not disputed that the defendant committed common assault as a juvenile. 2. On 19 October 2017, while on parole for the offence the defendant was arrested and charged for driving while unlicensed, refusing to supply an oral or fluid sample when directed to by a police officer, possession of methamphetamine and custody of a knife, namely, a black multi-tool knife containing a 4 inch silver metal blade in his right shorts pocket ("the October 2017 charges"). The defendant tested positive on the Roadside Drug test for methylamphetamine. On 8 November 2017, the defendant pleaded guilty as to the October 2017 charges in Wyong Local Court and was convicted and fined $3000.

The Withdrawn Charge

On 9 November 2017 the defendant was charged with wounding with intent to cause grievous bodily harm ("the 2017 wounding charge"), contrary to s 33(1)(a) of the Crimes Act.
On 11 April 2018, at Newcastle Local Court, the 2017 wounding charge was withdrawn and dismissed. Following that decision, the State Parole Authority subsequently rescinded the defendant's revocation of parole and he was released to parole on 2 May 2018.
The defendant contended, given that there is no admission by the defendant as to the 2017 wounding charge, it should be "disregarded for the purposes of consideration of the plaintiff's application". It was also submitted that the Court as presently constituted should adopt the approach of Fagan J at the preliminary hearing, with respect to the same.
At the final hearing, the Crown conceded that evidence as to the reason for withdrawal of the 2017 wounding charge "has no relevance" as to the evaluative judgment of the Court under s 5B(d) or with respect to the risk of serious offending.
The evidence sought to be relied upon as to the 2017 wounding charge was not admitted into the proceedings. The evidence before the Court was the mere historical fact of the charge. The Crown placed no reliance upon the 2017 wounding charge in its submissions, save as described below. It should be mentioned at this juncture that, notwithstanding the defendant's objection to material concerning that charge (other than the background fact of the charge), counsel for the defendant returned to the fact of the charge in cross-examination of the court appointed experts, in order to contend that their opinions were infected by reliance upon that factor, which was no longer relevant. The Crown submissions, in that respect, were confined to refuting that contention (that same approach was adopted in re-examination).
I will return to this topic in the context of a discussion of the evidence of the court appointed experts, and will reach the conclusion that, to the extent that reliance was placed upon the dismissed 2017 wounding charge, little weight was attached to the fact and the absence of such information would not have altered the conclusions of the court appointed experts.

Views of Sentencing Court: The Offence

The following is a summary of the views of the sentencing judge, derived from the remarks on sentence of Ellis DCJ: 1. The nature of the violence was "gratuitous" noting the defendant stomped on V1's head as V1 lay on the ground; 2. The objective seriousness of the offence was high because of the use of a weapon, the kicking and stomping and the degree of serious harm suffered by V1; 3. The opinions of psychologist, Mr Dieter and psychiatrist, Dr Scott were that the defendant's mental health issues and his substance and alcohol abuse played a role in his offending. However Ellis DCJ found: "[t]hat there is no causal connection between whatever the [defendant's] mental health issues may be... and the offending". 4. Having heard the defendant and CO1 give evidence at the sentence hearing, his Honour found: Neither of them instilled a huge amount of confidence in me in terms of either the genuineness of their remorse, in terms of their understanding of what they had done and the consequences of what they have done… 1. As to the seriousness of the offence, his Honour observed: [W]hile perhaps not in the worst category [of offending], noting as I do that the injury under this offence could include someone who was a quadriplegic or a paraplegic or indeed brain dead, but certainly not in the worse case category it is within the high range of offending against this particular provision.

Parole

As to the defendant's performance on parole, counsel for the defendant advanced the following submissions: It was certainly, when he was first released to parole, he was well off the rails then, went back into custody for the withdrawn offences. He's certainly done much better on his second time, second try at conditional release, and it's only improving, it appears, as time has passed. So he's released in about April 2018, we're now in November of 2018. And if your Honour does undertake the task of the review of the OIMS notes, it's a significant improvement, he's doing much better. And this is in circumstances where, as I say, he's only ever had one previous period on conditional release, he didn't do well then, he's doing much better this time. But I'm certainly not saying that he's without blemish. There's ongoing or there were, certainly, particularly earlier in the year, problems with use of drugs. But given he's doing better now, the things that Ms Farroway pointed to that might demonstrate a problem were … I would submit they're scraping the bottom of the barrel. So he was spoken to about whether or not he wanted to live in a halfway house rather than with his grandparents and he said he didn't want to because he didn't want to be associating with people who'd just been released from gaol. I don't really see how, in fairness to the defendant, that can be used to demonstrate that he's not serious about his rehabilitation.
The following summary of the defendant's performance under parole until August 2018, which with respect I accept, is extracted from the judgment of Fagan J at the preliminary hearing: The defendant was first released on parole on 25 January 2017. He continued on parole under supervision until 8 November 2017 when he was charged with a further offence of violence. He was then returned to custody and the State Parole Authority revoked his parole. That further charge was not pressed after several mentions in the Local Court at Newcastle. The State Parole Authority therefore rescinded its earlier revocation and ordered that he be released again to parole no later than 2 May 2018. He was so released and has returned to supervision by Community Corrections, and has continued at liberty on those terms to the present date. … Following his first release on parole on 25 January 2017 the defendant engaged erratically with Community Corrections Officers who endeavoured to supervise him. The material tendered includes an assessment which places the defendant in the 16th percentile with respect to his cognitive and intellectual functioning. There are numerous reports dating from his first period on parole between 25 January and 8 November 2017 indicating that he exhibited symptoms of acute anxiety, paranoia and delusion and that he was misusing prohibited drugs. … During his parole, both between 25 January and 8 November 2017 and again since 2 May 2018, he has attended a methadone clinic and has been prescribed methadone. But his attendance and usage of methadone has been erratic. In his second period of parole from 2 May 2018 his psychiatric state and his cooperation with Corrective Services and his misuse of drugs has been irregular. On the first day after his second release to parole, namely, 3 May 2018, he reported to a Corrective Services Officer at Wyong. This officer discussed with the defendant the diagnosis of bipolar disorder and schizophrenia. He stated that he had a feeling "his head is racing and he cannot turn it off". There was discussion of him attending a general practitioner and obtaining a referral to a psychiatrist for ongoing treatment. Between that date and the present there are a number of records of the Community Corrections Officers of their discussions with the Wallama Clinic where the defendant has attended to receive methadone under a prescription from his general practitioner. Frequently throughout the last three months that clinic has reported to Corrective Services that the defendant has failed to attend to receive his dosages, attended but refused to provide a biological sample for drug testing, become aggressive and hostile when pressed for a sample and so on. It is evident he has been far from cooperative in seeking to use the methadone program properly to alleviate his craving for illicit drugs.
On 2 May 2018, as earlier mentioned, the defendant's revocation of parole was rescinded.
While on parole for the offence the defendant reverted to abusing illicit substances.
The CSNSW Offender Integrated Management System ("OIMS notes") recorded the following: 1. On 15 May 2018, the defendant admitted to his DSO that he had used methamphetamine and heroin for three straight days and that he was hearing voices. 2. On 16 May 2018, the defendant was assessed at Wyong Hospital for his mental health. The registrar wanted to admit the defendant but he refused. 3. On 19 and 23 May 2018 and 7 and 15 June 2018, the OIMS notes suggest that the defendant was stable. 4. On 9 July 2018, the OIMS notes recorded that the defendant's mother was recently diagnosed with breast cancer. On 10 July 2018 the defendant admitted to his DSO that he used methylamphetamine and heroin for four straight days. The defendant was aggressive, admitted he liked using drugs and described himself as a "ticking time bomb". On 11 July 2018, the defendant was observed to have returned to anti-social influences. 5. On 12 July 2018, the OIMS notes states that the defendant had been required to provide a minimum of one urine drug test every three months and that he has refused that urine test on five separate occasions in the past two months. A sample provided on 4 June 2018 was negative for all illicit substances. 6. The general theme of the OIMS notes from July 2018 to the date of the final hearing is that the defendant had not tested positive for illicit substances but has admitted taking them in July 2018. There were no tests for part of the period when the defendant's whereabouts were unknown (5-10 September 2018). No tests were conducted between August and October 2018. 7. On 11 September 2018, the defendant's grandmother telephoned the ESO team to confirm that the defendant had admitted himself to Wyong Hospital as his mental health had declined (auditory and visual hallucinations, unable to sleep and highly anxious state).
The defendant's counsel candidly accepted the defendant's first period of release was very problematic. It is said he has done "much better on his second time". That submission may be accepted as a relative concept but the defendant's performance in the second period of conditional release showed some very modest improvement. That improvement was, however, much greater when the defendant was under supervision.
Further, whilst showing some small improvement, the second period of conditional release contained matters of real concern. On 9 July 2018 the defendant's mother was diagnosed with breast cancer. For the balance of that month, the defendant was either taking illicit drugs or refusing tests with regard to the same.
Whilst the general theme of the OIMS notes from after July 2018 to the time of the final hearing revealed that the defendant had not tested positive for illicit substances and had regularly taken methadone (noting no tests were conducted between August and October 2018), that must be considered in the light of the findings of Fagan J, with which I agree, at the preliminary hearing: Between that date [May 2018] and the present [August 2018] there are a number of records of the Community Corrections Officers of their discussions with the Wallama Clinic where the defendant has attended to receive methadone under a prescription from his general practitioner. Frequently throughout the last three months that clinic has reported to Corrective Services that the defendant has failed to attend to receive his dosages [of methadone as prescribed by his GP], attended but refused to provide a biological sample for drug testing, become aggressive and hostile when pressed for a sample and so on. It is evident he has been far from cooperative in seeking to use the methadone program properly to alleviate his craving for illicit drugs. [Emphasis added.]

Interim Supervision Order

The defendant's interim supervision order commenced on 20 September 2018. Ms Hollis was the defendant's DSO under the interim supervision order. Immediately prior to that role, whilst the defendant was on parole, Ms Hollis was also the defendant's Community Corrections Officer ("CCO").
The OIMS notes recorded, inter alia, the following: 1. On 25 September 2018, the defendant presented to Wyong Hospital with a drug induced psychosis. 2. On 27 September 2018, the ESO team learned that the defendant's mother passed away. The defendant has not tested positive for any illicit substances since and had presented daily to his health clinic to receive his methadone.
At the final hearing, Ms Hollis described the difference in the defendant's behaviour with Community Corrections under parole and whilst subject to an interim supervision order. She described the defendant as "more compliant" and "more willing to engage with Community Corrections".
Ms Hollis confirmed that the defendant was engaging with a psychologist on a weekly basis as well as undertaking drug analysis weekly. She noted that on parole that drug analysis was not as regimented and subject to the defendant's behaviour, on some occasions it was fortnightly or monthly.
In written submissions, counsel for the defendant conceded that "the defendant has had a mixed response to supervision in the past". However, it was contended that, more recently, the defendant had been "doing very well". In closing submissions, counsel for the defendant again conceded, "he's certainly breached conditions of his release".
The State did not demur from the above submissions with respect to the defendant's performance on his second period of conditional release, particularly under the interim supervision order. The State accepted the defendant "has been doing better". However, during May to September 2018, whilst on parole, the defendant was going through mental health decline and during such time he returned to using drugs. The State juxtaposed the defendant's performance under the two forms of supervision and it was contended that the defendant performed better when subject to the conditions of the interim supervision order. I accept that submission.

Behaviour in Custody

The defendant has been punished for several acts of misconduct while in custody. The following summary is derived from various CSNSW and Juvenile Justice records: 1. On 26 September 2012 the defendant was classified as A2 maximum security classification as a result of being found guilty of orchestrating a serious assault on another inmate; 2. The defendant has been disciplined for assault on 1 January 2012 and intimidation on 10 July 2012 and 1 October 2016; 3. The defendant failed prescribed urine tests on 6 July 2011, 26 October 2012 and 11 June 2014 and had been disciplined for possessing drugs or possessing drug implements on 28 October 2012, 29 October 2012, 3 September 2014, 2 April 2015 and 11 June 2014; and 4. The defendant has been disciplined for possessing a weapon on 11 August 2014 and 23 April 2015. In the latter incident, the defendant was found with a shiv inside the pocket of his jacket. The defendant gave officers the implausible explanation that he had not worn the jacket for a long time and did not know it was there.

Reports of the Court Appointed Experts

The court appointed experts unanimously opined that the defendant poses a high risk of further serious violent offending, noting: 1. The defendant's substance and alcohol abuse issues; 2. The nature of the defendant's offending in the past; 3. The defendant's lack of insight into the pathways to his offending; 4. The absence of an ability to regulate himself; and 5. The defendant's likelihood of being in possession of a weapon which elevates the nature of the risk to a serious violence offence. (The same opinion was reached by Ms Tulloh in her Risk Assessment Report, which I will return to under a separate heading).
Each expert, including Ms Tulloh, utilised actuarial assessment tools and categorised the defendant in the high risk of violent offending because of the presence of several static and dynamic risk factors (including impulsivity and criminal peers).

Dr Ellis' evidence

Dr Ellis interviewed the defendant on 26 October 2018 for two hours and his grandmother for 30 minutes.
Dr Ellis diagnosed the defendant as meeting the criteria for schizophrenia; substance use disorder, particularly cannabis, alcohol and stimulants; and pre-morbid conduct disorder. It was unclear whether the defendant would meet the criteria of anti-social personality disorder as a number of the defendant's behaviours had occurred during either or both substance use or untreated psychosis. It was unlikely the defendant suffered attention deficit hyperactivity disorder ("ADHD").
As to the diagnosis of schizophrenia, Dr Ellis opined: He would meet criteria for the diagnosis of schizophrenia. He reports a long history of hallucinations and associated delusions. He presents with the blunted emotional expression and slowed cognitive and psychosocial function that accompanies the disorder typically. It appears that the disorder onset in his teenage years and has been associated with an arrest and decline in his function over time. This disorder is chronic, and shows some level of treatment resistance as his hallucinations do not remit with standard treatment. His symptoms have persisted in the absence of substance use, so are considered independent of substance use, although likely exacerbated by use.
Dr Ellis then gave an opinion under the heading "Risk of Commission of a further Serious Violent Offence" over pages 10 to 12 of his report.
He commenced with a description of current risk assessment techniques in behavioural science. He defined the nature and scope of such techniques and their limitations as follows: With current risk assessment techniques in behavioural science it is not possible to determine whether an individual person will reoffend with a violent offence, or more specifically a serious violent offence as defined by law. It is possible to identify risk factors associated with group violent reoffending established in the published literature in order to manage reoffending risk. Actuarial measures such as the V-RAG and V-RAG R, or structured professional judgement tools such as the HCR-20 V3 or VRS are able to allocate individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons within the group as reoffending. The difficulty with this approach is that it does not discriminate between those in a particular risk group who do reoffend and those who do not. There does not appear to be a particular advantage to actuarial scales over structured professional judgement scales. Both appear superior to unaided clinical impression. These scales tend to more correctly identify low risk groups who do not offend, than high risk groups who do go on to offend. No tool specifically assesses for serious violent offending which could or does result in significant injury or legal consequences. These types of offences are rarer, and thus statistical methods are unable to reliably detect them in large samples. There is some epidemiological data to suggest persons with schizophrenia are more prone to serious violence (for example are over-represented in samples of homicide offences). In determining this opinion I have made reference to the HCR-20 V35 structured professional judgement tool which has been widely used clinically and in research to assess risk for violence. This tool identifies historical, largely unchangeable factors associated with violence risk, current clinical factors and anticipated future risk management items which are more amenable to change. These tools aid in the identification of fluctuating risk factors, which moderate the overall risk. There is strong correlation between the HCR-20 V3 and the VRS (used in the report of Ms. Tulloh) in terms of violence risk prediction. There is also strong correlation with the V-RAG. The V-RAG-R is newer and has less comparison studies, however is similar to the V-RAG in items rated. I concur with the scoring of the V-RAG-R by Ms. Tulloh. [Footnotes omitted. Emphasis added.] (Professional judgment tools and actuarial measures shall hereafter be described as "tools or scales").
Before turning to the balance of his opinion, reference may be made to some issues relating as to this aspect of his evidence and the reliability of the overall opinions he expressed as to the risk of commission of a further serious violent offence (although no challenge was taken to the admission of his report). It was accepted that Dr Ellis had used the structural professional judgment tool HCR-20 V3 and his clinical judgment but it was contended that tool (and more generally, tools and scales) was not capable of assessing the likelihood of whether the defendant would commit further serious violent offences as opposed to a general violent offence. There was no evidence of the defendant committing a further serious violence offence. Hence, it was submitted Dr Ellis' report could not be taken as one concerning the probability of the defendant committing a serious violence offence. As to his clinical assessment, he accepted that tools give a "better impression" or basis for assessment.
Dr Ellis was cross-examined as to the use of tools and clinical assessments and gave the following evidence: Q. There is no actuarial assessment that can be undertaken to determine whether a person is at risk of committing a serious violence offence, is there? A. I am not aware of any statistical method that could predict that kind of offence, the reason being that kind of offence is rare using statistical prediction you can only ever predict at a group level and for more common events, so. Q. And putting aside actuarial assessment, there is no clinical assessment that can predict the commission of this specific category of specific category of serious violence offence, is there? A. It depends on how you are using the word prediction because you could not accurately, I mean there is no, there is no method that I am aware that can predict an individual human behaviour at a specific point in time and do that. It is, the process is more from a clinical point of view, is more about looking at risk factors associated with that kind of behaviour and attempting to manage that on a given population level to reduce risk of violence, but you could not predict it with the sense that you can predict. You could, you just cannot predict an individual event like that. [Emphasis added.]
It is true that, as Dr Ellis recognised, the structured professional tool he employed, or for that matter tools or scales, do not assess or predict for serious violent offending which results in serious injury or "legal consequences".
However, as Dr Ellis opined in his report, HCR-20 V3 is widely used clinically and in research in assessing the risk of violence and is strongly correlated to the Violence Risk Scale ("VRS") and V-RAG. Further, those tools allocate individuals with particular characteristics to risk groups and those groups have been identified as possessing greater or lesser numbers of persons within the group as re-offending, even though there is no discrimination between a particular risk group who re-offend and those who do not.
As to clinical opinions, in my view, the defendant has misunderstood the purport of Dr Ellis' report, in this respect, for two reasons.
First, Dr Ellis qualified his statement that the tools or scales are superior to clinical impressions by the use of the word "unaided". He was clearly referring in that respect, to clinical opinions without the assistance of tools or scales. It is evident from the balance of his report that he has employed his clinical judgment with the aid of tools or scales.
Secondly, Dr Ellis' evidence as to clinical assessment was that it was limited, as may be expected, in a capacity to predict an "individual behaviour at a specific point in time" but that it was adept at evaluating "risk factors" in the light of evaluative tools (Dr Ellis referred to "a given population level"). They were adept at evaluating and making recommendations for the management of risk.
As will be discussed below, in terms of the balance of Dr Ellis' report, the examination of the risk of violence (and its management) was undertaken in that light and extends to both the propensity to re-offend and the likely nature or character of that offending.
Ultimately, I do not consider the evidence of Dr Ellis, a court appointed expert, may be described as unreliable as to any opinion given in his report or his viva voce evidence. There was, in fact, no proper basis, in terms of the opinions expressed, to establish such a contention. Nor do I consider the weight attaching to those opinions is diminished by the factors raised by the defendant when the opinion expressed is understood as representing a combination of clinical assessment and use of tools or scales (within the limit of the predictive capacity of such instruments).
An issue was also raised by counsel for the defendant as to whether there was a causal connection between the defendant's mental illness, namely, schizophrenia, and the risk of further violence offences. Reliance was placed upon a finding of Ellis DCJ, with respect to the offence, rejecting a mental impairment defence for the defendant, notwithstanding psychiatric reports dealing with that issue.
During closing submissions, it was contended: "Dr Ellis was perhaps referring to the not guilty mental impairment defence. Of course, that's not what Judge Ellis was concerned with. He was just using the ordinary meaning of 'causal connection' for the purposes of determining whether it would reduce moral culpability for the sentence". It was then submitted that the defendant sought to tender at the trial of the offence a report, which suggested that the offending was causally connected to the defendant's mental illness, however, the trial court ultimately rejected that submission and found it was not. In that light, counsel for the defendant submitted: So to the extent that your Honour needs to make a finding about whether or not his risk of violence is related to his mental illness, the sentencing judge considered that it was not, it had nothing to do with the violence on that occasion.
In his report, Dr Ellis opined: "[t]here is some epidemiological data to suggest persons with schizophrenia are more prone to serious violence"; the defendant has a "history of schizophrenia associated with violence" and "his psychoactive disorders are chronic and likely to present beyond any period of supervision, but may be better internally controlled at this point".
During cross-examination, Dr Ellis expanded upon his clinical opinion as to the connection between the defendant's diagnosis of schizophrenia and his engagement with violent acts: "from a clinical and risk assessment point of view, having a diagnosis of schizophrenia is a risk factor for future violence". The relevant part of Dr Ellis' evidence during cross-examination, in relation to schizophrenia, is extracted below: Q. Just continuing over the page at page 12. You say he has a history of schizophrenia associated with violence. What's the basis of that opinion? A. Yes. That's the basis of the, that he has, whilst the diagnosis has been there whilst he's had symptoms of schizophrenia, that he's engaged in violent acts. Q. You're aware that the sentencing judge expressly found there was no causal connection between any mental illness and the acts on this occasion? A. Yes. And again, that's a legal connection, but from a clinical and risk assessment point of view, having a diagnosis of schizophrenia is a risk factor for future violence. Q. Did he have a diagnosis of schizophrenia at the time of the index offence? A. He didn't have a formal diagnosis but if you look in retrospect from now, it's likely that he had symptoms of schizophrenia at the time. Q. So the only occasion of a history of schizophrenia associated with violence is the index offence from 2012? A. And any violence in custody subsequent.
It is not entirely clear how the defendant contends the findings of Ellis DCJ, made in a completely different context, could impact upon my findings in this matter as to the relationship between the defendant's mental illness and risk. Dr Ellis' opinions had regard to evidence as to the mental impairment defence and the findings of Ellis DCJ. It did not alter his opinion, which he described was based on his clinical assessments. Further, Dr Ellis gave an expert analysis of the significance of the defendant's mental health as to the question of risk. Dr Ellis opined that there was a relevant connection between his diagnosis and the question of risk. It may also be noted that Dr Ellis commented that the defendant had no formal diagnosis of schizophrenia at the time of the offence but it was likely he suffered from the condition at that time. He was not asked what relationship existed between that condition and the offence but he commented on the connection between that condition and the risk of future violence. Dr Ellis was plainly of the view that schizophrenia contributed to his violent offending, behaviour in custody and was applicable in assessing the risk of further violent offending.
Dr Ellis considered that "[t]he mainstay of effective risk management in this case is treatment of [the defendant's] schizophrenia". He considered antipsychotic medication, psychological treatments, substance use treatment and vocational activity would reduce the likelihood of the defendant re-offending over time. Dr Ellis, in that respect, opined: The treatment and supervision plan generally addresses the relevant risks posed in this case. The supervision scheme is such that deterioration can be detected early, and interventions applied which could manage the situation presented. It is agreed that the supervision and monitoring has limitations, and could never eliminate the risk posed, however would likely significantly reduce it.
There is no countervailing expert opinion to that given by Dr Ellis and I accept it. Some other matters arising from Dr Ellis' evidence should be mentioned before returning to the balance of his report.
First, as to the possibility of the maturation of the disorder, in the context of the defendant, Dr Ellis opined: "it's difficult to say. It's going to have to be by observation … his best chances for having better neural function is if he remains on antipsychotic treatment and if he's abstinent from substances, and that's going to give him his best chances of getting that maturation of impulse control that comes with the maturation of neural structures".
Secondly, Dr Ellis observed that the defendant's substance use disorder was currently in remission under the interim supervision order. In re-examination, Dr Ellis commented on the interaction of illicit substances with the defendant's current prescribed medication. He opined it was "[l]ikely to make that medication less effective, and it would likely increase his experience of symptoms of mental illness, increase his experience of hallucinations and delusional beliefs.
Thirdly, Dr Ellis considered that intoxication and psychotic symptoms elevate the defendant's risks by increasing the possibility of fear and anger during an assault.
Returning to Dr Ellis' report, he then dealt with various historical factors as follows: There is a clear history of problems with violence beginning in adolescence by his criminal record and persisting in adult life evidenced in the criminal and institutional record. This is accompanied by persistent other antisocial behaviour evidenced in the record, both in adolescence and adult life. There is a history of problems in relationships with limited intimate relationships and a difficult relationship with his mother including domestic violence charges noted in the documents. The index violence is related to interpersonal dispute. There is a poor record of employment. Serious substance abuse is clearly associated with his pattern of violence. It is often remarked that he is intoxicated during offences. He does not have a diagnosis of antisocial personality disorder, however this is provisional, and he had conduct problems in childhood before the development of substance use and mental illness. He was exposed to problems of parental mental illness in his childhood. The notes from the VOTP indicate he held attitudes supportive of violence across his lifespan plus there is evidence of weapon carrying. He has a history of schizophrenia associated with violence. He has failed on previous conditional supervised release. This indicates a high loading of historical risk factors associated with violence in the longer term, compared to the general prison population. He currently displays unsophisticated insight into his propensity for violence but does display understanding of need for treatment and management. His impoverished account of the index offence most likely relates to poor memory and denial related to his mental conditions. While this poor insight might be concerning in a person without his mental conditions, in this case it has not reduced his commitment to treatment, therefore of lesser relevance. He does indicate an intention to accept treatment and rehabilitation now, however there is yet to be a record of sustained participation. He does not currently display any attitudes that support violence. He shows some instability of mental state currently with attenuated hallucinations. He does not have identified stress management techniques. This indicates a moderate - high loading of modifiable risk factors that render internal control of baseline historical risk problematic.
Dr Ellis accepted that the defendant's criminal record relevantly consisted of a juvenile common assault and the offence (noting the AOABH charge recorded on Form 1 in the proceedings relating to the offence).
There was also an occurrence of assault in an institutional setting.
As to relationship issues, Dr Ellis gave evidence of the difficult relationship the defendant had with his mother and a limited history of other relationships. It was accepted that relationship issues stemmed from the large amount of time the defendant had spent in custody. The HCR-20 V3 treats the defendant as being institutionalised. The lack of relationships is problematic.
As to the absence of an intimate relationship, noting the defendant has been in custody for the vast majority of his life, Dr Ellis confirmed that factor remained relevant to risk assessment: It does, and specifically the HCR-20 goes into the fact that if you are in effect institutionalised and have had no opportunity for relationships, that in itself, at a group level, is problematic. So if you look at groups of people who have not had to navigate and negotiate into personal relationships, it is on release more difficult and so it is of some consideration in the context of all the information, and, but I would accept that he has not had the opportunity to form relationships but that then does not mean, it means that he then loses that protective factor of having formed and maintained relationships. So it is, particularly if I am using this kind of scheme, the HCR-20, that you would have to take into account the periods without relationships where someone is incarcerated.
Dr Ellis gave similar evidence in relation to the defendant's poor record of employment: Yes, again that is taken into account with this kind of scheme that it includes if a person has not had the opportunity for employment it is as much of a risk factor as if they had the opportunity and did not use it.
Dr Ellis opined there was a moderate - high need for professional services and plans to control the potential for violence. Further, he opined that as the defendant is "still relatively young" that factor indicates "that maturity has yet to impact on reducing risk".
Under the heading, "Risk of Commission of a Further Serious Violence Offence" in his report, Dr Ellis' ultimately reached the following conclusion: A consideration of the type of possible violent offence should be considered in an estimation of risk. In the case of [the defendant], given the past pattern of serious violence, victims are likely to be adults with whom he has some interaction and conflict, but can also include strangers in the context of an acquisitive offence or public intoxication. Psychotic symptoms may be present during intoxication, increasing his fear and anger during an assault. The most likely violent acts would be impulsive and without weapons. The history of sustained physical attacks and weapon carrying render the chance that violence he engages in could escalate to a serious level where physical injury is foreseeable. In considering structured professional and clinical parameters in the absence of any treatment or supervision, [the defendant] would fall into a group of persons with a risk for violent offending offending [sic] that is statistically high in frequency with potential for serious consequence in his specific case, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.
It was put to Dr Ellis that the "past pattern of serious violence" to which he referred was the common assault as a juvenile, the offence and the assault in custody. Dr Ellis referred to this as a "limited pattern" (or alternatively a "past history") but the defendant has had "limited opportunity". Dr Ellis categorised the offence as "serious" and accepted that was the single occasion of a serious offence. He also agreed the use of weapons was confined to the offence (although no finding was made as to who used it) and a separate conviction for possession of a knife.
It was also submitted that Dr Ellis was not expressing in the first paragraph in [86] above, a view as to the probability of the defendant committing a further serious violence offence.
It is true that Dr Ellis does not per se express a conclusion as to the risk of the defendant committing a serious violence offence as defined under the Act. However, under the heading "Risk of Commission of a Further Serious Violence Offence", he was dealing with, inter alia, a specific question posed of him: "Does [the defendant] pose a risk of committing a further serious violence offence? If yes, please describe the level of risk and factors contributing to that risk…". Dr Ellis' opinion, in that respect, was essentially twofold: 1. The defendant falls within the group of persons having a high risk of violent offending (in terms of a statistically high frequency) with the potential for serious consequences (as will be discussed below Dr Ellis also opined that, in the absence of treatment and management, the defendant represented a risk of serious harm to himself and the community). 2. The potential consequences of such further offending are physical injury resulting from physical attacks on adults with whom he interacts but also potential strangers. The most likely violent act would be impulsive without weapons but his carrying of weapons contributes to the risk of serious violent offending (Dr Ellis later commented that the carrying of knives was a common response to persecutory beliefs (noting, as well, the "shiv" he made in custody). Specific treatment and supervision would reduce that risk.
There is a further issue raised by the defendant regarding the Mental Health Act 2007 (NSW) to which I will now turn.
During cross-examination, Dr Ellis was asked to consider the alternative means of regulating the defendant's mental illness (and risks) by treatment including "involuntary treatment" under the Mental Health Act. Counsel for the defendant, in submissions, relied upon an alternative regime under the Mental Health Act, "which is available to manage any risk the defendant might pose (or may in the future pose) to himself or the community because of such illness". In the context of the application of the Mental Health Act, Dr Ellis gave the following evidence: Q. Do you consider that [the defendant] would meet the criteria for involuntary treatment under the Mental Health Act? A. There's another arm that has to be met, that is, that there's no less restrictive environment that's safe and effective, so whilst someone might have a risk of serious harm, if they voluntarily enter into treatment then the act ordinarily doesn't apply. Q. But let's just deal with the first criteria? A. Yes. Q. Do you think he poses a risk of serious harm to himself or the community? A. If he were to not be engaged in his current treatment then I would have concern, and that I would be concerned and, you know, consider the use of the Mental Health Act in his case, but while a person has sufficient insight to engage in voluntary treatment that manages that risk then the practice would be to engage the person as a voluntary patient. Q. And when you say "treatment," that's psychiatric treatment? A. So - and psychiatric treatment in the broad sense, which is medications, psychological counselling, social therapies. They need to be used together. Q. He's compliant with treatment at the moment, so far as you're aware? A. Yes. Q. So in those circumstances, would you consider him to be a risk of serious harm to himself or the community? A. While he's engaging in the current management, the risk that he poses is managed, so he doesn't present as a risk of serious harm. It's the circumstance where if you were to strip away that treatment and management that he's currently doing that you would become concerned. Q. And if he doesn't comply with his treatment one of the options available to his treating clinician is to seek an order under the Mental Health Act to mandate such treatment? A. That's correct.
The defendant made submissions as to the operation of the Mental Health Act and its significance to the Court's present deliberations. It was contended that test prescribed by s 14 of the Mental Health Act was significant for the evaluative judgment required under s 5B(d) of the Act. The submissions had, as their foundation, the evidence of Dr Ellis.
During the course of submissions, with respect to the Mental Health Act, counsel for the defendant also referred to an alternative regime under that Act, which is available to manage any risk the defendant might pose (or may in the future pose) to himself or the community because of such illness. Further, the following submissions were advanced as to the significance of the application of the Mental Health Act to the defendant in this case: 1. The provisions under the Mental Health Act mean that there are other mechanisms to ensure that the defendant's treatment to prevent harm, including the mechanisms that allow clinicians to seek orders under the Mental Health Act, should the defendant desist from treatment. It was contended that such a fact should militate against the making of an order in this Court, namely, due to "the availability of alternative mechanisms to manage his risk". The provisions of the Mental Health Act allow for appropriate measures to protect the defendant in the community. 2. If there was no such order available, under the regime of the Mental Health Act, the Court might have more concerns, it was submitted, about what would exist if this order were not made. Thus, the regime under the Mental Health Act provides a less restrictive means of managing the risk. 3. Turning specifically to the test contained in s 14 of the Mental Health Act, which is that "care, treatment or control of the person is necessary… for the protection of others from serious harm", is a lower threshold - it is a lower test than what applies in this Court. In that light, it was submitted: Your Honour has to be satisfied to a much higher standard than that. And the doctor's evidence was, he doesn't currently meet that test. That must be somewhat persuasive in terms of whether the Court would be satisfied that he meets the test in this case, given the much higher hurdle the State has to meet. 1. Emphasis was placed upon the "coercive powers" that exist under that Mental Health Act, which include, inter alia, powers to apprehend (e.g. police can collect and take a person to hospital), scheduling powers and the power to mandate community treatment. 2. Returning to the evidence of Dr Ellis, it was further submitted: The question I asked him, your Honour will see that the test that's contained in section 14 is whether care, treatment or control of a person is necessary for the person's own protection from serious harm or for the protection of others from serious harm. And if a person meets that definition, actions can be taken under the Mental Health Act. As I understand it, Dr Ellis' opinion was that, at present, while treated, he doesn't meet that definition, but if he were to cease treatment, he may meet that definition in which case his clinicians could take action under the Mental Health Act.
In reply, the State advanced, correctly in my view, the following submission: I'd like to deal with a submission in relation to the mental health regime. I invite your Honour to be very careful here, and your Honour would be well aware in the forensic order regime, which is the Court imposed orders on mental health patients that's governed by Schedule 1 of the Mental Health (Forensic Provisions) Act, and in that regime, clause 2, which is akin to the 5(b) clause, that's the section before your Honour, which is the section that says your Honour "must consider whether the forensic patient poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient" The risk cannot be adequately managed by other less restrictive means, they are the two considerations in the forensic regime. I mention that, your Honour, because my friend had made the submission that there was the availability of an alternative mechanism to manage his risk which was less restrictive than the extended supervision order. With respect, there is no legal principle that, under the Crimes (High Risk Offenders) Act, where your Honour is invited to consider whether there is a less restrictive regime. Section 9(3) mandates a series of factors. None of those import the language that had been used in the forensic regime. I invite your Honour to hold that distinction to mind.
The defendant's submission appears to be to the effect that the provisions of the Mental Health Act militated against the Court imposing an extended supervision order (or an affirmative order pursuant to s 5B(d)) if: 1. There are appropriate measures under the Mental Health Act to manage the risk including compulsory orders for treatment by less restrictive means; or 2. The defendant did not meet the criteria under s 14 of the Mental Health Act, which represents a lower base or criteria than that required under s 5B(d).
It is strictly unnecessary to decide this issue as it is predicated upon a misunderstanding of Dr Ellis' evidence. However, it is appropriate to observe that the approach proffered by the defendant potentially invites error if it seeks to substitute, by direct or indirect means, a set of statutory criteria to those operating under the Act, particularly where the respective statutory schemes differ significantly.
However, as noted, the resolution of this issue may be dealt with shortly by reference to Dr Ellis' evidence. When Dr Ellis was pressed to express an opinion as to whether the defendant met the statutory conditions for involuntary treatment under the Mental Health Act, Dr Ellis initially gave opinion of a general nature based upon a person having insight into voluntary treatment (noting the defendant was presently being compliant with treatment) may not require such restrictions. However, when pressed to consider whether the defendant would represent a risk of harm to himself or the community, Dr Ellis directed attention to not merely treatment but "treatment and management". He opined that, if treatment and management were removed then there was a risk of serious harm to himself and the community. Clearly, Dr Ellis was referring to psychiatric treatment and management which must, in that context, be taken as supervision under the Act. Absent both elements the defendant represented a risk of serious harm.
Thus, as to whether Dr Ellis considers the defendant to be a risk of serious harm to himself or the community his answer, in my view, was straightforward: if under management, no; if not under management, yes. Counsel for the defendant concentrated upon his evidence as to treatment without taking into account the full effect of his evidence as to risk.
The defendant alternatively put a submission as to how the Mental Health Act might apply so as to submit it is a relevant consideration under s 9(3)(e1). When counsel for the defendant was subsequently questioned about that contention, it was submitted that she was not contending that the Act expressly mandated that the Court have regard to provisions of the Mental Health Act, but rather, "there are options available to the offender in the community whether or not under supervision that might, might, reduce the likelihood of the offender reoffending over time".
Just how that might apply in the present context was not explained. It is not clear by that submission how some undefined treatment regime in the community might have any significant role to play in making the required determination under s 5B(d) or s 9(1) of the Act. It was not suggested that absent an extended supervision order that any restraints would apply to the defendant in the community, other than perhaps regular treatment by psychiatrist, psychologists or counsellors. It was also not suggested that the defendant would be the subject of any involuntary treatment order either in an institution or in the community. In any event, Dr Ellis' opinion was that "management" was required to control the risk of serious harm to the community.
Finally, as to the 2017 wounding charge, counsel for the defendant contended that, notwithstanding the State "disavowed reliance upon" any evidence with respect to the withdrawn charge, Dr Ellis confirmed in evidence that he did have regard to this charge in forming his opinion. Counsel for the defendant, in this respect, submitted: I understand the plaintiff's submissions that they were given little weight. With respect, I don't think the evidence quite flowed that way. Certainly for Dr Ellis, he said that he had regard to them. He talked about three categories; that there were events which resulted in convictions, there were allegations which did not result in convictions, and there were periods of time where a person wasn't subject to any - I think he said didn't come to the attention of police. … So he's used the fact that he's come to notice of police as part of his assessment process. So he has used it in some way in terms of that process [referring to Dr Ellis' use of actuarial tools and his conclusions thereof].
During cross-examination, Dr Ellis opined that the 2017 wounding charge fell, in his view (and for the purpose of his report), within a second category: "people who are at conditional liberty and there may be some either technical breach which does not break the law or they have been charged with an offence".
Dr Ellis confirmed in re-examination, however, that he placed "limited weight" upon that factor in his assessment. He also confirmed the limits of its relevance within his assessment process, as the charge occurred in circumstances when the defendant was on conditional liberty "that [factor] is an association with risk of further violence in the literature in a general sense, so I considered it in that form". In my view, the defendant's submission, in this respect, was an incorrect characterisation of Dr Ellis' evidence. He gave the 2017 wounding charge little weight in his assessment.

Ms Howell's evidence

Ms Howell interviewed the defendant on 23 October 2018 for two and a half hours.
Ms Howell opined that absent supervision the defendant poses a high risk of committing a further act of serious violence.
Ms Howell assessed the defendant under the VRS. Her opinion in that respect was as follows: [The defendant's] score on the VRS places him in the high risk category to reoffend. Consideration of his dynamic risk factors suggest the following factors are relevant: chronic substance abuse issues, cognitive distortions, emotional control, impulsivity, criminal peers, lacking insight into violence, use of weapon and failed compliance with community supervision.
Ms Howell, with regard to the defendant's substance use disorder, stated the following: 1. "[the defendant's] long standing drug use is concerning as it appears to disinhibit his behaviour and places him in contact with anti-social peers"; and 2. "[the defendant's] substance abuse is a critical risk factor as it underpins his capacity to moderate interpersonal aggression, emotional regulation, decision to carry a weapon and decisions regarding the use of violence".
Ms Howell accepted that it was "not scientifically possible to predict whether or not an individual will or will not reoffend" and that "psychological risk assessments are conventionally based on an analysis of both static and dynamic factors". Her assessment of the defendant's risk was as follows: [The defendant's] [VRS] score was calculated on his criminal history and from the degree of verification to the accuracy of the information I was able to obtain from [the defendant] at interview. Assessment of [the defendant's] static and dynamic risk factors and clinical assessment support the view his future risk of violent offending is within the high risk range. It is my understanding that [the defendant's] estimate of risk was reduced following his completion of the VOTP program in custody. The VRS was completed with [the defendant] on 15 February 2018 following [the defendant's] offending behaviour in the community. At that time, he was found to fall into the high risk range. Similarly, it is my view that [the defendant] has a high risk of committing a further serious violence offence.
As to the defendant's violent offending, Ms Howell confirmed that she did not take into account childhood offending. Thus, any reference to his "risk factor for his violent offending" referred only to "the index offence".
Ms Howell also described the defendant as "socially isolated" and observed that to be "a serious current factor" impacting upon his risk.
Ms Howell commented that the defendant had difficulty identifying protective factors to her that would reduce his risk of further offending.
Ms Howell considered risk management strategies would need to focus on drug and alcohol treatment and oversight of that treatment.
In answer to the question "To what extent if at all is your view of the risk of reoffending by [the defendant] affected by [the defendant's] attitude to the offences", Ms Howell responded: Whilst [the defendant] did not rationalise his violent behaviour during the assessment I note that pre and post his participation in, and completion of, the VOTP program [the defendant] justified and rationalised past violent offending. The report of [G]illian Tulloh, dated 14 March 2018, found "[the defendant] appears to hold implicit beliefs about the legitimacy of the use of violence and tends to blame others for provoking him rather than owning his behaviours". Following the completion of the VOTP program [the defendant] was assessed as demonstrating significant improvements in his ability to manage impulsivity and whilst he acknowledges difficulties with self-regulation in the community he indicated his intention to address this issue with his treating psychiatrist and general practitioner. [The defendant] also identified at least one of his relapses into drug use was associated with overwhelming feelings of anxiety and stress due to family concerns. It is my opinion that [the defendant] will need ongoing educational, emotional and psychological support to manage his attitudes to offending if he is to reduce his risk of reoffending.
Ms Howell did not diagnose the defendant with any psychiatric condition but noted that: "if [the defendant] does have a psychiatric condition, in particular drug-induced paranoid schizophrenia, it would be relevant to an assessment of his future risk of committing a serious violence offence".
Ms Howell stated that the 2017 wounding charge was given some weight in coming to her assessments but "not a lot" and significantly less than other factors. As to whether the exclusion of that charge would change her opinion, her answers were somewhat opaque ("No, I don't think so" and "it doesn't substantially change my opinion"). When asked to attribute the proportion of weight to give to the 2017 wounding charge Ms Howell stated that was not possible as instruments do not work in that fashion. She added: It's really about - it's like things on a Form 1 in that sense that they don't have the same weight. You know, it's the way in which they are laid out. Things that are categorically provable, these are the things that actually have the weight in terms of looking at the instrument and as I say the instruments are blunt, but it does allow and does ask for what other history, what other risk factors are there, and a risk factor is if someone is charged with something even if doesn't proceed.
Her evidence as to this issue crystallised in the following questions and answers in cross-examination: Q. And you would reach perhaps a different conclusion? A. No, because it's not a significant ‑ it's not a significant ‑ this particular charge doesn't change the whereabouts of [the defendant] in terms of the instrument. It's not a defining or a deciding factor. Q. It might not be a deciding factor but it has some weight? A. Yes.
During cross-examination, Ms Howell was questioned at length about her conclusions as to the risk posed by the defendant. She confirmed the only "tool" she used was the VRS and noted its limitations, in particular, that it does not measure the risk of a "serious violence offence" per se (it concerned "any violence"). However, the VRS formed one part of Ms Howell's clinical assessment of the defendant. She explained (in answer to a question as to whether she had confined her attention to risk to two factors - impulsivity and lack of understanding of the potential for violence): [T]here's a totality of issues that go to making the decision. It's is not just a tick box of 1, 2, 3. It's a totality of issues. And I think in the report I put in the issues that I took into account in making my decision around where [the defendant's] risk lies and I will just find those. When I did the VRS with [the defendant] the factors that I thought were relevant in terms of committing a further offence are chronic substance use issues, cognitive distortion, emotional - lack of emotional control or it's emotional control issues, impulsivity, criminal peers, lacking insight into violence. So I've listed here the things that I took into account, the totality of those.
Ms Howell also gave evidence regarding earlier results under the VRS that differed to her own conclusion (a 2016 assessment had rated the defendant's risk of re-offending as "medium"). She accepted factors such as completion of the Violent Offenders Therapeutic Program ("VOTP") may result in a subsequent result on the VRS. However, as to her own assessment, she stated: "[t]he issue is that when I did the VRS with [the defendant] based on the notes that I took from him and the documentation that I read he scored higher or I scored him higher". Ms Howell did not have her scoring available during cross-examination. It was suggested that all of the factors referred to in her report as constituting high risk were present at the time of the earlier report except for the 2017 wounding charge.
However, Ms Howell agreed in re-examination that a number of factors had changed since the VOTP report, including a breach of parole for drug use (Ms Howell described this as a "major factor" because it is a "chronic condition" and related to impulsivity of decision making) and that the defendant had been charged and convicted of possession of a knife. She rejected the defendant's description of the knife as being a "tool" (the defendant had said to her it was not a "real knife") on the basis that, whatever the other functions of the instrument, one of them was a knife.
Ms Howell was closely cross-examined as to her opinion that the defendant was "a high risk of committing a further serious violence offence".
She confirmed that the VRS cannot make such a prediction. She was then asked the basis upon which she could make a clinical assessment of that kind. She replied that it was a difficult assessment, particularly in the absence of a "tool" for such predictions. She stated that there was no way of being "100% sure" of such a prediction but that was her assessment based upon a number of factors including: 1. Her engagement with the defendant (presumably a reference to her observations during her interview); and 2. The combination of factors she had referred to in her report as factors contributing to risk.
She opined that, if the defendant committed a violence offence "it could possibly be a serious violence offence". That response prompted the following question and answers, which constituted the gravamen of Ms Howell's evidence, in that respect: Q. So you just said "if he commits a violence offence it possibly could be a serious violence offence", would you accept that's rather different to him being a high risk, meaning a further serious violence? A. I think he's a high risk of committing a violence offence and I have put in there "a serious violence offence" and perhaps that's an overstatement and perhaps I shouldn't have but what I'm saying is it seems to me that if he does ‑ there's no sense in my assessment of [the defendant] that he has an understanding of the potential for violence and he has a level of impulsivity and almost a level of ‑ a level of impulsivity and a lack of understanding I think, so I guess that's part of my thinking around if he was to commit a violence offence, and he is at high risk of doing that, it could be a high risk of a serious violence offence. Q. It could be or he is? A. Well I think he is. … Q. Despite the fact he's only ever committed one serious violence offence you remain of the view that he's a high risk of committing a serious violence offence? A. Because these factors ‑ my understanding are some of the same factors that were present at that time, so notwithstanding the treatment program the same factors that stood then stand now so yes, that's my view.
In closing submissions, counsel for the defendant suggested that the 2017 wounding charge was factored into Ms Howell's assessment as follows: Ms Howell was a little bit less clear. She certainly had regard to it and your Honour can see in the report she's had regard to it. She ultimately said that even if she disregarded it, it wouldn't change her opinions. But the difficulty is, having not brought the scoring sheet to Court, we just don't really know how it's been weighted in the VRS that she's undertaken which is the primary basis of her opinion - is the results of the VRS, and because we don't have the scoring sheet, we just don't know how much weight was placed on it as part of the scoring process.
Further, during closing argument, counsel for the defendant submitted that the Court would afford the opinions of Ms Howell "much less weight". An attack of the expert was advanced, which included the following: 1. "The report itself contains an assertion of various opinions but it's not clear, either the facts upon which those opinions were based nor the methodology that was used and her reasoning process is not apparent from reading the report"; 2. "It also has a number of errors within it which may or may not have impacted upon the opinions that were reached. And it's very unfortunate that Ms Howell's used a single term, the VRS, and hasn't brought the scoring to Court so that there's no way for the defendant to understand the basis upon which she reached the conclusions"; 3. "Her explanation of how the VRS worked so that one could perhaps track through it was also not very clear. So your Honour's left with what I would submit is a bold assertion with very little reasoning underlining it"; and 4. "I think, at best, with Ms Howell, she went back and forward a little bit but ultimately I think she said that a serious violence offence is within the category of violence offences and because of the risk factors that were present for the index offence, are still present now, he's still therefore a risk. With respect to Ms Howell, it's a bit of a logical fallacy to say: Because that, therefore this. And it certainly doesn't assist the Court in assessing the probability. Because on one occasion some factors were present and something occurred, it does not follow that, if those factors are present, the same thing will be at a high risk of occurring".
Ms Howell was a court appointed expert. I do not consider her evidence as unreliable or that her opinions should accordingly be attributed less weight. Many of the attacks on her evidence were ill-founded.
It was true that Ms Howell's evidence could appear at times equivocal or hesitant, however, her evidence was overall clear, consistent and the bases for her opinions were properly explained. I do not accept that Ms Howell's report fails to explain her methodology or reasoning process. Ms Howell accepted that some, but minimal weight had been given to the 2017 wounding charge. She said, however, that factor was not significant and would not have changed her opinion if removed from the analysis. Any difficulties with the evidence largely arose, in my view, because the expert was pressed to evaluate risk from the perspective of the cross-examiner which did not conform to how such factors were actually taken into account in the VRS model (no specific questions were put to her as to the operation of the model in that respect).
As to the scoring under the VRS, Ms Howell explained the dynamic and static factors that underpinned her assessment (the content of which she explained). It is true that she did not produce her scoring or make arrangements for its provision. However, the question of scoring emerged from cross-examination and it is not at all clear what arrangement the parties made for the provision of the material. In any event, Ms Howell's evidence in re-examination made it tolerably clear why a different score had arisen from an earlier assessment and Ms Howell's conclusions conformed broadly with Dr Ellis' and Ms Tulloh's assessment, albeit by the use of different tools, namely HCR-20 V3 and VRAG-R (noting that the different tools and scales approach the question of risk differently but ultimately allocate individuals with particular characteristics to risk groups having particular factors).
Ultimately, Ms Howell's assessment was based upon static and dynamic factors which took into account particular developments post-VOTP. The dynamic risk factors including chronic substance abuse issues, cognitive distortions, impulsivity, emotional control, lack of insight into violence, criminal peers and use of a weapon. Her assessment also indicated an assessment of the defendant in person who displayed particular attributes when interviewed. Her assessment was that these factors remained present at the time of giving her evidence in this matter.
The defendant was found to be a high risk of committing a violence offence and the nature of that offending is predicted to be serious violence offending. That opinion was predicated upon her clinical assessment applied in conjunction with the VRS.

Psychologist Assessment by Registered Psychologist: Ms Tulloh

As to the relevant supporting documentation mandated in s 6(3), an application for an extended supervision order must include a report prepared by an appropriate health professional that assessed the likelihood of the offender committing a further serious violence offence (s 6(3)(b)). The Risk Assessment Report of Ms Tulloh addressed this issue.
Ms Tulloh concluded the defendant posed a high risk of further violent offending and that if the defendant engages in violence he is unlikely to have the presence of mind to extract himself from it.
As to the nature and degree of the defendant's risk, she opined: [The defendant] is estimated to be at high risk of further violent offending. This assessment is anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs his antisocial attitudes, impulsivity or poor emotional control. His abuse of substances and tendency to carry weapons only serves to further dis-inhibit his behaviour. He appears to have little awareness of the factors which lead him to crime and violence. He presents as an immature and highly impulsive individual who tends to externalise blame for his behaviour. … [The defendant] is unlikely to have the behaviour controls to engage in problem solving or conflict resolution strategies. If he is engaging in substance use, is in the company of anti-social peers and in possession of a weapon (or if there was one readily available), he would have even less behavioural control to prevent a violent incident Similarly, if a confrontation were to escalate into violence, [the defendant] is unlikely to have the presence of mind or emotional control to extract himself before serious physical harm is imposed on the other. That is he would be unable to determine when the victim had "had enough".
Ms Tulloh identified the following dynamic risk factors present in the defendant: 1. criminal attitudes / cognitive distortions: the defendant represented to Ms Tulloh that his violence was justified and/or gave rationalisations for his offending. Ms Tulloh opined that the defendant held implicit beliefs about the legitimacy of the use of violence and blamed others for provoking him rather than owning his violent behaviours; 2. criminal peers: Ms Tulloh commented that this risk factor was a well-established predictor (empirically) of criminal behaviour because anti-social peers reinforced the defendant's attitudes towards crime and could actively promote it. Ms Tulloh observed that the offence and the 2017 wounding charge occurred in the company of a peer and that the VOTP report writer, Ms Kari McGuinness, Psychologist with VOTP at Long Bay Correctional Centre, identified that the defendant may act out violently due to a sense of loyalty to a family member or friend; 3. emotional control / impulsivity: the Risk Assessment Report noted that the defendant had acknowledged his difficulties with self-regulation while in the community and moderating his behaviour; 4. weapon use: the defendant has a history of using weapons in his episodes of violence; 5. insight into violence / violence cycle: the Risk Assessment Report states that the defendant lacked insight into his offending demonstrated by his justification for his episodic violence as helping his peers or feeling provoked; and 6. substance abuse: substance use is a risk factor because it disinhibited his behaviour and placed him in contact with anti-social peers.
As to the impact of the defendant's impulsivity, emotional control and drug use, Ms Tulloh reported: [such factors] significantly reduce [the defendant's] capacity to restrain himself in situations where there is confrontation, hostility or violence. Add to this his tendency to carry weapons, a reflection of his anxiety and/or paranoid thinking, and the likelihood of another disproportional response to a perceived threat or slight increases exponentially.
Ms Tulloh also commented that the defendant was at the peak age for violent offending.
As to supervision, Ms Tulloh opined: [The defendant] will benefit from intensive supervision and case management by CSNSW ... The higher level of supervision involved in an ESO, compared to standard supervision, would assist in helping [the defendant] develop a pro-social lifestyle in the community ... targeting his substance abuse and impulsivity.

Risk Assessment

The court appointed experts and Ms Tulloh each applied various actuarial assessment or professional judgment tools to categorise the defendant's overall risk. In the result, the defendant was unanimously placed in the "high" category of committing further violent offending.
A summary of the results are as follows.

LSI-R

The LSI-R consisting of static and dynamic risk factors related to general and violent re-offending. Ms Tulloh did not personally administer this tool, which was performed while the defendant was in custody on 28 March 2017. The defendant was categorised in the high range category for violent offending. According to the LSI-R, 79% of defendants who were assessed as "High Risk" re-offended and returned to CSNSW custody within two years. The LSI-R does not delineate between risk of committing a serious violence offence and general re-offending.

VRAG-R

The VRAG-R assesses static risk factors to provide a probability of an individual's risk for violent (including sexually violent) offending over longer periods of time. Ms Tulloh administered the tool on 14 February 2018 and scored the defendant as "equal to, or higher than the score of at least 95% of the construction sample" which placed him "in the ninth of nine 'bins'". Ms Tulloh, in that respect, noted: "[i]n the norms for this instrument, 76% of violent offenders with a similar score reoffended violently within five years, and 87% within twelve years".

VRS

The VRS uses 6 static and 20 dynamic variables to evaluate a person's risk of violent recidivism. Ms Howell administered this assessment on 15 February 2018, following the defendant's offending behaviour in the community. The defendant's score, at that time, put him in "the high risk category to reoffend", noting the presence of the following dynamic risk factors: chronic substance abuse issues, cognitive distortions, emotional control, impulsivity, criminal peers, lacking insight into violence, use of weapon and failed compliance with community supervision.
The VRS was also administered on two earlier occasions by Ms Sarah Lodington on 29 March 2016 (pre-VOTP) and Ms McGuinness on 25 January 2017 (post-VOTP), respectively, which was cited in the VOTP report. On both occasions the defendant's score placed him in the "medium risk category".
As to the pre-VOTP findings of Ms Lodington, the following was recorded: His score was compared to a group of 918 federally sentenced Canadian inmates who had also been rated on the VRS. Of those offenders from this group who obtained a similar score to [the defendant], 39.5% were criminally convicted for a new violent offence in the 5 years following release to the community, which placed him in the medium risk category for re-offending.
Turning to the post-VOTP results of Ms McGuiness, the following was recorded: His score post treatment was again compared to that same group. Of those offenders who obtained a similar score to Mr McGorm, 29.6% were criminally convicted for a new violent offence in the 5 years following release to the community and his risk level was assessed as being in the medium range.
As to the defendant's risk of recidivism, Ms McGuinness further opined: The recidivism estimates provided by the VRS are group estimates based upon re-arrest/re-conviction and were derived from groups of individuals with the same score as [the defendant]. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. Whether [the defendant] is one of the 29.6% who re-offend or the 70.4% who do not re-offend violently is contingent upon his ability to manage his risk factors in the community.
(Further observations of Ms McGuinness in the VOTP report will be set out later in this judgment).

HCR-20 V3

The HCR-20 V3 is a structured professional judgement tool which has been widely used clinically and in research to assess risk for violence. The tool identifies historical, largely unchangeable factors associated with violence risk, current clinical factors and anticipated future risk management items which are more amenable to change. The HCR-20 V3 was implemented by Dr Ellis who sets out in his report that he arrived at the same high risk categories as Ms Tulloh. As mentioned earlier, he opined: These tools aid in the identification of fluctuating risk factors, which moderate the overall risk. There is strong correlation between the HCR-20 V3 and the VRS (used in the report of Ms. Tulloh) in terms of violence risk prediction. There is also strong correlation with the V-RAG. The V-RAG-R is newer and has less comparison studies, however is similar to the V-RAG in items rated. I concur with the scoring of the V-RAG-R by Ms. Tulloh

Other Reports by Psychiatrists, Psychologists and Juvenile Justice

Juvenile Justice Report

A report from Juvenile Justice dated 20 April 2009 identified that the defendant had been drinking alcohol since the age of 13 and that his aggression was connected with his level of drug and/or alcohol use.

Mr Dieter Psychologist Report

A report of George Dieter, psychologist, dated 2 October 2011 which was tendered as evidence in the sentence hearing of the offence, in summary, stated: 1. That the defendant has an alcohol and drug use issue and that he had been drinking alcohol heavily and taking ecstasy tablets regularly when the offence occurred; 2. That the defendant showed signs of depression and anxiety with psychotic features and was suffering from alcohol abuse; and 3. That the defendant's paranoid features of his depression played a role in the offence which was made more difficult to manage because of his use of alcohol and other illicit substances.

VOTP Pre-Treatment Psychometric Interpretation Report

On 16 March 2015, prior to entering the VOTP, several psychometric tests were administered to assess the defendant's suitability to participate in the treatment program. The VOTP Pre-treatment Psychometric Interpretation Report dated 22 June 2016 by Ms Lodington sets outs, inter alia, the following: 1. That on the Novaco Anger Scale and Provocation Index the defendant scored in the "very high range". 2. That on the arousal scale the defendant's score: "indicate[d] that [the defendant] is likely a hot responder whose anger reactions quickly exceed regulatory capacity and therefore impulsive aggression may be expected". 3. That on the regulation subscale the defendant's score: "[indicated] that a central characteristic for his problematic anger is his loss of regulatory control. [The defendant] has self-reported that he has a very low ability to regulate his anger engendering thoughts and thinking styles to effect self-calming and to engage in constructive behaviour when faced with provocation"'. 4. That on the violence scale the defendant's score indicated an elevated level of endorsement of attitudes of violence as a means of obtaining his desired goals.

Response from CSNSW as to Management in the Community

On 24 April 2018, Mr Marc Corcoran, Senior Community Corrections Officer, prepared a Risk Management Report pursuant to s 9(3)(d1) of the Act. That report was endorsed by Ms Farroway on 24 April 2018. The following summary is derived from the Risk Management Report and the evidence of Ms Farroway (noting that Mr Corcoran was not required for cross-examination).

Prior management by Community Corrections

The defendant's first period of Community Corrections supervision commenced on 25 January 2017, following his release to parole for the offence.
The focus of supervision had been Alcohol and Other Drug/gambling abstinence and relapse prevention intervention, including compliance with Opioid Replacement Therapy ("ORT"). He was also encouraged to engage in vocational training, and was referred to a psychologist to address issues including anxiety and adjustment.
The defendant's response to supervision was described as varied. It was noted that he "appeared to engage well with interventions" having completed the EQUIPS Foundation program. However, he was removed from the EQUIPS Addictions program due to poor attendance. Mr Corcoran reported: It would appear that he had difficulty removing himself from substance use, gambling and anti-social peers during periods. It is noted that whilst subject to parole supervision "several attempts were made by Community Corrections to engage [the defendant] with...(VOTP maintenance, Community Psychologist, AOD Services/Programs and Gambling services, Vocational training), he either resisted engagement or engaged poorly".
On 15 May 2018, when the defendant attended Community Corrections it was evident to the responsible officer that he was under the influence of illicit substances and admitted using both methamphetamine and heroin over a three day "bender". His behaviour as assessed by the Corrective Services officer on that occasion was "disturbed". The Corrective Services reports of interactions with the defendant also recorded contacts with medical practitioners who have seen the defendant for mental health assessments and treatment.
As of 16 May 2018 a registrar at Wyong Hospital wanted to admit him to the mental health unit but he refused. Apparently there was no assessment made at that point that he should be made an involuntary patient but clearly he was presenting with disturbed psychiatric symptoms. On 19 May 2018, three days later, he reported to the Corrective Services Officer supervising his parole that he was "still hearing voices".

Post-release plans

The defendant reported that he wanted to return to reside with his mother in the central coast area post release. Mr Corcoran reported: Enquires are yet to be finalised into the ongoing suitability of this accommodation option. It is noted that his VOTP treatment report stated that in "returning to the Central Coast he may be exposed to negative peers. This could increase his risk of engaging in antisocial behaviour" (McGuinness, 2017). Furthermore, when [the defendant] "was paroled to his Mother's home, it became apparent that he was not coping with his Mother's mental health issues... and this was a significant source of stress for him".
The defendant indicated that he had no community based supports in the Sydney metropolitan area and he would not consent to referral to Nunyara Community Offender Support Program ("COSP") or Campbelltown Integrated Support Centre ("ISC") at time of the preparation of the report. Mr Corcoran noted that aside from his "mother and grandparents, he appears to have little pro-social support in the community".

Risk of re-offending

As to the defendant's risk of re-offending, Mr Corcoran reported the following: Risk of general re-offending An assessment undertaken using the Level of Service Inventory - Revised (LSI-R) on 28 March 2017 found [the defendant] to fall in the High risk level for general re-offending. Risk of violent re-offending A psychological assessment undertaken by Gillian Tulloh on 15 February 2018 estimated [the defendant] to fall in the High risk category of violent offending.
Ms Farroway also deposed that Community Corrections staff utilised a number of management tools in determining the level of supervision which should be provided to offenders. These include: LSI-R, Community Impact Assessment ("CIA") and Service delivery standards. Her observations, in this respect in relation to the defendant, included: LSI-R 1. On 29 June 2018, the defendant was again assessed on the LSI-R, he was categorised at a "medium/high level of general re-offending". CIA 1. The CIA provides an additional level of risk assessment, incorporating the consequence of re-offence and judicial and community expectation regarding the management of more serious offenders The CIA provides a basis for increased monitoring of offenders, without the need to manipulate the LSI-R to increase monitoring. It is usually completed by an offender's supervising officer within CSNSW. 2. On 29 June 2018, the defendant was assessed on the CIA as being "Tier 3/Medium/High". Ms Farroway deposed "[i]n order to provide an appropriate level of supervision and monitoring for an ESO offender, all ESO offenders are supervised at the Tier 3/High supervision level of the Service Delivery Standards for the duration of their order". Service Delivery Standards 1. The Service Delivery Standards for supervised offenders are the basis for the delivery of case management to offenders being supervised by Community Corrections who are subject to community based orders, including extended supervision orders.

Risk Management Plan

The risk management plan outlined in the Risk Management Report was informed by, inter alia, the dynamic risk factors identified by Ms Tulloh, which were informed by the information in the Risk Assessment Report.
In light of that material, the Risk Management Report set out aRisk Management Plan for the defendant. It addressed the details and limitations with respect to the following suggested management strategies: 1. interviews with the defendant; 2. field visits; 3. third party contacts; 4. monitoring, schedules and curfews; 5. referral to CSNSW psychological services; 6. referral to psychiatric services; 7. referral to alcohol and other drug services; 8. alcohol and other drug testing; and 9. non-association and place restrictions.
Each management strategy sought to manage and/or monitor an individual or combination of the following risks associated with the defendant: 1. Criminal attitudes / cognitive distortions; 2. Criminal peers; 3. Emotional control / impulsivity; 4. Weapon use; 5. Insight into violence / violence cycle; 6. Substance abuse; and 7. Release to high risk situations / compliance with community supervision.
It was further recommended that, following implementation, the risk management plan be subject to review every two months and updated as necessary to reflect any significant changes to the defendant's circumstances.
Ms Farroway "carefully reviewed the risk management report dated 24 April 2018". She deposed that "I agree that the defendant presents with the dynamic risk factors identified at pages 2 to 8 of [that report]". She also agreed with the risk management plan set out at pages 2-8 of that report and the limitations of the risk management plan identified therein.
During closing submissions, counsel for the defendant referred to the evidence of Ms Farroway in which she stated that the defendant refused a referral to a halfway house. Reference was made to the acceptance of Ms Farroway that the defendant "preferred to be living with his grandparents rather than with recently released other criminals". It was submitted that the Court should not find that evidence as supportive of a conclusion that the defendant was not serious about his rehabilitation. This would not seem to be a significant consideration going to the question of the Court's relevant satisfaction under s 5B(d).

The VOTP

The VOTP is a custody-based residential therapy program for violent offenders. The VOTP balances risk management with a strengths based approach to treatment for individuals with medium high to high risk/needs. While in treatment, participants are assisted to develop skills, attitudes, values and resources identified as necessary to lead a fulfilling and offence free life. This is primarily achieved via cognitive behavioural therapy with other approaches (i.e. motivational interviewing, solution focused therapy, dialectical behaviour therapy and acceptance and commitment therapy) also drawn upon to ensure a comprehensive approach to treatment.
The defendant participated in VOTP while in custody from 30 November 2015 to 14 December 2016. The VOTP report notes the defendant was engaged in the program.
Ms McGuinness reached the following conclusion: [The defendant] satisfactorily completed the VOTP at Long Bay Correctional Centre on the 14.12.2016. Over the course of the program, risk factors for [the defendant] as listed above were identified, with [the defendant] being given the opportunity to work on and reduce the saliency of these areas of risk. By the completion of the program [the defendant] had developed an appropriate Self-Management Plan that will allow him to apply strategies gained from the VOTP and to manage his future risk.
Dr Ellis was cross-examined with respect to the defendant's participation in the program and its limitations. He gave the following evidence: Q. Is that a matter which might mitigate his risk in the future of the commission of a serious violence offence? A. It may do. These kinds of programmes have some limited evidence that they reduce violence in populations that complete them and my concern about his particular participation in this is that he had been not treated for schizophrenia while undertaking the programme and he describes having active hallucinations during the programme but the fact that he has completed it, does indicate that he can engage with a treatment provider, that he can engage with a treatment provider, and his report was that he had satisfactorily completed the programme, but in this part of the risk assessment that I am looking at it here, page 20, it does not take into account whether you have completed or not completed this kind of programme. Q. So it might be that his risk is less than other people who have not completed this programme using this tool? A. It might be but the rates of violence reduction from these kind of programmes tend to be quite modest.
Ms McGuinness, the author of the VOTP report, made the following observations: Criminal attitudes: 1. Over the course of treatment, the defendant developed insight into the attitudes he had previously and continued to possess, identifying how these affected his behaviours; including accepting responsibility for part of the "index offence", namely, with respect to stabbing the victim. 2. Psychometric testing conducted post treatment also showed a reduction in the defendant's attitudes that endorse violence, future intent for violence and levels of entitlement. 3. Despite improvements, the defendant continued to experience lapses with regards to his criminal attitudes throughout treatment. 4. Further, with regards to his behaviour whilst in the program, the defendant received a number of negative case notes regarding his behaviour in the wing and general disrespect for following the rules set out and was placed on a case plan on two occasions for behavioural issues. Due to these lapses, the defendant was considered to be in the "Preparation stage of change post treatment". Criminal peers: 1. It was noted that this risk factor was not identified in his Time 1 assessment, however new evidence suggests that it is relevant to reducing his future risk. 2. Reference, in this respect, was made to his engagement in negative behaviours "to impress his friends", through which he developed "maladaptive cognitions". The defendant also reported feeling "increased confidence" by participating in similar behaviours and indicated that "in the past he did not assist his peers in a fight, he would have felt as if he had failed them, echoing these comments in relation to his index offence". 3. The defendant identified the need to avoid engaging with antisocial peers in order to reduce his risk and expressed his intention to form new and build on existing pro-social relationships. Interpersonal Aggression: 1. Overall, the defendant was able to develop insight into past and present behaviours. He was also able to identify alternate ways of approaching situations that could lead to aggression. Despite this, he displayed a number of lapses throughout treatment and was therefore considered to be in the "Preparation" stage of change. In order to progress, he would need to abstain from interpersonally aggressive behaviours and consistently utilise positive alternate strategies to approach difficult situations with others. Emotional Control: 1. The defendant was considered to be in the "Preparation" stage of change at the completion of treatment. Although he demonstrated insight and showed improvements in his ability to manage, he experienced a number of lapses throughout treatment, as noted in the report. Violence During Institutionalisation: 1. The defendant was noted to display instances of aggression towards staff. 2. It was noted that the defendant spoke with his Parole officer regarding this matter and identified the need to self-manage himself in challenging situations and engage in appropriate strategies to manage his responses. 3. The defendant progressed from a stage of "Pre-Contemplation" to "Preparation". Weapon Use: 1. The defendant was noted to show fluctuations in his attitude towards weapon use, as well as his level of personal responsibility for past weapon use. Although he was able to conclude that seeing a weapon could be a traumatising experience. The defendant at times made comments suggesting he had failed to recognise the psychological effects caused by weapon use. 2. As to the offence, it was reported that the defendant recognised the seriousness of his actions, indicating that he should not have stabbed the victim after first assaulting him. Identification of the consequences for the victim due to the extent of his injuries was also highlighted by the defendant. 3. It was noted that the defendant progressed from "Pre-Contemplation" to "Contemplation" due to insight developed throughout treatment. In order to progress further, the defendant would need to be willing to apply this insight further to his own past weapon use. Insight into Violence: 1. Although fluctuations were noted with regards to taking responsibility and not blaming others, overall, the defendant was able to develop insight into his violent behaviour. 2. It was noted that the defendant completed a comprehensive good life plan, which incorporated self-management techniques to reduce the risk of future violence. 3. He was also able to identify a number of risk factors and relevant warning signs. This, in conjunction with the insight developed across the course of treatment, allowed for the defendant to progress to a stage of "Preparation". As noted there were lapses in treatment with regards to taking responsibility and the positive changes that were noted, occurred relatively recently. Substance Use: 1. Although the defendant has a history of drug use, leading to negative behaviours such as crime, there does not appear to be a strong link between this and violent behaviour, as per evidence obtained throughout treatment. He acknowledged, however, that he had previously engaged in violent behaviour when drunk and admitted to drinking on the night of his Index offence. He further noted that alcohol can affect cognitive capacity and overall acknowledged drinking, in conjunction with drug use, as a risk factor for future violence. He identified appropriate cognitive and behavioural strategies for managing this. 2. The defendant was considered to be in a stage of "Preparation" at the completion of treatment. Released to High Risk Situations: 1. It was noted that this risk factor was not identified in his Time 1 assessment, however new evidence suggests that it is relevant to reducing his future risk. 2. The defendant has a history of significant gambling and will have close contact with his grandparents upon release, whom continue to gamble. This could increase his own risk of gambling and consequential crime and violence through his need to obtain money and/or a decrease in efficient emotional control due to the pressure and stress caused from his gambling. It was noted that prior to committing the offence he indicated he had been gambling heavily and was feeling stressed due to the money he had lost. 3. It is noted that as the defendant is returning to the Central Coast, he may be exposed to negative peers. This could increase his risk of engaging in anti-social behaviours, thus he would benefit from forming new pro-social friendships. It was noted that whilst in the program he did not make mention of wanting to re-connect with antisocial peers and indicated that he wanted to avoid anyone who uses drugs. Violence Cycle: 1. The defendant has a limited history of self-reported violence and violent convictions. He does however appear to have a cycle of violence, that is precipitated by a desire to assist his peers or when feeling provoked. 2. Due to an increase in awareness of precipitating factors to violence and how to manage these, the defendant was noted to be in the Preparation stage of change. It is noted that these changes occurred relatively recently and were not consistently stable over an extended period of time. Impulsivity: 1. The defendant continued to display impulsive behaviours whilst in the program, including interpersonal aggression towards staff. Although he did not consider the consequences of this type of behaviour at the time, it is noted that the defendant was able to reflect on this afterwards, noting a need to be "more mindful" of his behaviours. He was also noted to display impulsivity regarding behaviours whilst in group. More positively, however, the defendant demonstrated times where he appeared able to make considered decisions. This included when he agreed to participate in a Work Development Order in order to pay off his fines prior to release, despite this resulting in a reduced wage whilst incarcerated. 2. Overall the defendant, in this respect, was considered to progress to the "Preparation" stage of change. It was noted that, whilst he developed insight and demonstrated the ability to make rational decisions, he experienced lapses throughout treatment and treatment gains occurred recently. Cognitive Distortions: 1. Overall, despite fluctuations during treatment, the defendant continued to develop insight and awareness of his cognitive distortions that had previously led to negative behaviours, including violence, crime and drug use. He also demonstrated the ability to challenge these appropriately. 2. Despite progress, however, the defendant did experience lapses and the positive changes were relatively recent. As such, he was in a stage of "Preparation" at the completion of treatment.
Ms McGuinness made the following recommendations, which she opined would "assist him to consolidate and maintain treatment gains": 1. Continue complying with conditions imposed by the State Parole Authority and Community Corrections and actively seek support as needed; 2. Be assessed for his suitability to attend VOTP Maintenance in order to maintain treatment gains made in the program; 3. Engage with counselling services in the community, if not engaged with other counselling or support services. In this instance, consider a referral to a community psychologist to further assist the defendant with managing his emotions, coping with personal stressors, communication skills, conflict resolution skills, and adapting back to life in the community; 4. Abstain from drug use and alcohol whilst in the community; 5. Abstain from gambling whilst in the community; 6. Remain on the methadone maintenance program until deemed appropriate by medical professionals; 7. Commence vocational training or employment; and 8. Avoid contact with antisocial peers and develop involvement with pro-social groups and individuals. Engage in goal setting and planning of a routine, including leisure and meaningful activities.
The State submitted that the VOTP report identified the defendant's treatment progress with respect to dynamic risk factors. The State also referred to the outstanding issues regarding dynamic risk factors, namely, the defendant's inability to control his emotions which would exacerbate if he returned to alcohol or illicit drug use. Those submissions were borne out by the VOTP report and in particular various aspects of the observations in the report which referred to the defendant having reached, in substance, what was described as a preparatory stage at the completion of treatment. The recommendations made by Ms McGuinness were made whilst the defendant was in custody. I accept the State's submissions, in this respect, noting as well that subsequently there were reports prepared by the court appointed experts, as well as Ms Tulloh, which discuss dynamic risk factors. For the reasons given later the Court accepts the opinions of those experts.

EQUIPS

From 2 February to 5 October 2017, the defendant also participated in the EQUIPS Foundation program (while on parole). This is a 20 session program aimed at addressing offending behaviour generally.
In 2017, whilst on parole, the defendant was directed to attend the EQUIPS Addiction program to address his drug and alcohol issues. He commenced the program on 23 May 2017. On 18 July 2017, however, due to non-attendance, the defendant was withdrawn from the program. It appears there may have been obstacles to the defendant's attendance because of his mother's illness at the time.

Drug & Alcohol Rehabilitation

Counsel for the defendant submitted that the defendant may benefit from further drug and alcohol rehabilitation. However, it was noted, that "it's been within the Department's power since May 2018 to refer him to such treatment and they have not done so". In light of that fact, counsel for the defendant contended that any argument for the imposition of an order, to enable such further treatment to occur, should be given "limited weight".
In reply, the State referred to OIMS notes attached to the affidavit of Ms Farroway (set out earlier in this judgment); in particular, the fact that the defendant was admitted to the Mental Health Unit of Wyong Hospital in September 2018 in relation to "a drug induced psychosis". Counsel for the defendant, in this respect, contended that the Court should "give that [evidence] little weight, given we don't have any of the primary documents relating to whether it was drug induced or not". That submission faces two difficulties. First, as will be discussed, the defendant's mental health status is a matter bearing upon the question of risk for the purposes of s 5B(d). Secondly, the evidence of "drug inducement" is derived from the OIMS notes, which were admitted into evidence, and has some weight in that it casts a light on the connection between drug taking and the defendant's mental health and risk - an issue that received attention in the reports of the independent experts.

The State

The State made the following submissions: 1. The defendant meets the threshold requirements under s 5B for an application to be made for an extended supervision order and when s 9(2) and (3) factors are considered the Court should grant the extended supervision order. 2. The Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence in the absence of supervision (and support) because: 1. The defendant is a 26-year-old man who uses violence as a means of problem solving. His criminal history, custodial history and behaviour on parole evidences that when he commences an act of violence he does not have the self-control to regulate or stop himself to prevent serious harm resulting; 2. The court appointed experts and Ms Tulloh are unanimous that the defendant has a substance use disorder (amphetamine, methamphetamine, cannabis and alcohol) which fuels his violence; 3. The defendant's proclivity for having weapons in his possession, including knives, escalates his risk of violence to one of serious violence; 4. The defendant suffers from schizophrenia which, unless managed, significantly elevates his risks of re-offending; 5. The defendant has justified his violence on the basis of loyalty to or protection of his criminal peers. The defendant is easily swayed or encouraged by his criminal peers. The defendant is still young and has not matured in this aspect of his life; 6. The experts unanimously opine that the defendant lacks the tools to recognise his offending pathways and to disengage himself from that violence once it is commenced; 7. The defendant is in the high risk category of serious violent offending having considered his present dynamic risk factors, professional judgment tools and actuarial tools; and 8. The defendant still associates with anti-social peers so there is a high degree of probability that he may return to illicit substances in their company or feel justified for his violence out of "loyalty" to his peers. 1. The State contended that alcohol and illicit drugs could destabilise the defendant's mental health, and the defendant's denial to Ms Howell that the "use of alcohol" contributed his offending is a significant factor. In that respect, the following submissions were advanced: 1. The offence occurred after a night of drinking alcohol (both Mr Dieter and Ellis DCJ found alcohol contributed to the offence); 2. The defendant's lack of insight regarding his use of alcohol and its connection to his violence is relevant to the evaluative task in s 5B(d) and whether the Court should grant an extended supervision order; and 3. The defendant's attitude suggests that, absent supervision, there is a significant risk that the defendant would return to drinking alcohol and fails to appreciate this is a pathway to his offending. 1. It was also contended that the defendant fails to understand that his possession of weapons elevates his risk of committing a further act of serious violence. This was supported with reference to the October 2017 charge, whereby the defendant was charged with possession of a knife in a public place (to which he pleaded guilty). 2. Supervision would be the effective, justified and reasonably appropriate measure to reduce the defendant's high risk of violent re-offending and an extended supervision order would be protective in that regard (see s 3 of the Act). 3. As to the 2007 offence, whilst not a "serious violence offence", the State contended that it evidenced a pattern similar to the offence: 1. The defendant's proclivity to use a weapon; 2. The defendant's propensity for violence; 3. The defendant is easily encouraged or driven to acts of violence when with his peers; 4. The inability of the defendant to regulate himself and de-escalate his behaviour; and 5. The defendant's justification for that violence: acting out of "loyalty". 1. As to the Risk Management Plan, it was submitted, "[t]here is nothing in the [Risk Management Report] to suggest there would be impediments to supervising the defendant. The limitations noted are largely reliant on the level of the defendant's compliance". 2. The experts unanimously opined that the defendant's risks are best managed, at this time, under an extended supervision order. 3. As to the likelihood of the defendant's compliance under an extended supervision order, the State contended that the defendant's conduct, whilst subject to the interim supervision order, was not necessarily a sound measure of how he may comply or not comply with an extended supervision order. The following facts were referenced in support of that submission: 1. It was accepted that, whilst subject to an interim supervision order, the defendant had shown aspects of commitment to some of the conditions. However, due to the defendant's mother's passing, it was noted, there has been greater latitude and sensitivity provided by the Extended Supervision Order team at that time (for instance an absence of being required to report a weekly schedule of movements). 2. Reference was also made to the defendant's earlier issues with compliance whilst on parole, reliance was placed upon his criminal history and his reversion to using illicit substances.
Finally, the purpose of an extended supervision order is protective and the safety of the community is the paramount consideration: s 9(2). The State submitted, the retaliatory and impulsive nature of the defendant's attacks, the fact his offences involve weapons and the grave harm suffered by his victim and alleged victim in the past evidence that the community is not safe if this risk is left to eventuate. Thus, an extended supervision order would be protective in that regard.
In reply to the defendant's reliance upon State of New South Wales v Simcock (Final) [2016] NSWSC 1805 ("Simcock"), State of New South Wales v Pacey [2015] NSWSC 1983 ("Pacey") and State of NSW v Sancar [2016] NSWSC 867 ("Sancar"), the State submitted that those judgements could not properly represents precedent. Each case which comes before the Court under the Act needs to be considered on its own facts and circumstances and each unique factual scenario will affect the evaluative task that is to be undertaken by the Court.
In any event, there were significant differences between the three cases relied upon by the defendant and in the present matter, namely, each of the defendants were significantly older, none of them presented with schizophrenia and two of them were "quite reformed" in their behaviour. In the third case, the risk assessment report was against the State, in terms of findings of risk. In this case, the Court has unanimous opinion of experts as to the high risk which the defendant poses. The defendant is a young offender who presents with dynamic risk factors and has schizophrenia.

The Defendant

The defendant's written submission were succinct and directed to relevant principles, the Court's consideration of issues relating to s 5B(d) of the Act and, if an extended supervision order was to be made, the conditions that ought to be imposed. I extract below the defendant's written submissions regarding the application of s 5B(d) after mentioning some aspects of the oral submissions made on behalf of the defendant.
In oral submissions, counsel for the defendant dealt with particular topics such as the opinion of the court appointed experts, the relevance of s 14 of the Mental Health Act, supervision and drug and alcohol use, as well as conditions and duration, which have been dealt with elsewhere in this judgment.
Counsel for the defendant also made submissions of a broader character. It was accepted at the outset that the defendant had "risk factors" and that he was at risk of re-offending; both in a general sense and as to a further violence offence. It was submitted that the evidence did not sustain a conclusion that there was a high probability that the defendant posed an unacceptable risk of committing another serious violence offence if he was not kept under supervision, even though he has a substance use disorder and mental illness.
The defendant relied upon three decisions of this Court, that were said to have similarities to the present matter, in support of those submissions, namely, Simcock (Wilson J), Pacey (Harrison J) and Sancar (Garling J).
Reference was made to those cases because the Court, in each case, was not satisfied the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision.
As to Simcock, the following comparisons were made: 1. the defendant in Simcock had a more serious criminal history, both in terms of violence and other offences, although the singular serious violence offence, in that matter, was the same as the present case; 2. in Simcock, Wilson J found that the actuarial tools employed by experts established a considerable risk that the defendant would re-offend but not that he would re-offend by committing a further serious violence offence. It was submitted that the same limitation existed in this case and that, save for Ms Howell, no expert offered an opinion that there was a risk of committing a further serious violence offence and that there was no reliable metric to form such an opinion (I have earlier rejected that submission in this judgment); and 3. like Simcock, there was evidence which enabled the Court to conclude that, without supervision, the defendant would commit offences but the Court could not be satisfied that there was an unacceptable risk of a further serious violence offence.
As to Pacey, the following comparisons were made: 1. in both cases the defendant was only convicted of one serious violence offence; 2. Harrison J took into account, in Pacey, that the defendant had not been convicted of any offence since the index offence. Again, that circumstance applies in this case (there was also a similar period of not offending); and 3. similar to this case, whilst the defendant in Pacey was at some risk of re-offending that does not set him apart from a very large number of those with whom he had been incarcerated.
As to Sancar, the following comparisons were made: 1. the defendant had one conviction of a serious violence offence, namely, murder; 2. the defendant also had disciplinary breaches linked to the use of illicit drugs and disciplinary offences. That position also applies in this case; 3. reference was made to the observation at [83] by Garling J that the defendant in Sancar represented risk because of the length of his incarceration, institutionalisation, lack of strong peer support in the community outside family but, having regard to the relevant test of unacceptable risk, there was not a risk of serious violence offending.
Turning to the defendant's written submissions regarding the application of s 5B(d), the defendant made the following submissions: 1. To order an extended supervision order, the Court must be satisfied on the evidence before it to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Given the defendant's background, the only relevant serious offences about which there is any risk is the risk of further serious violence offences. 2. The defendant submitted that the Court could not be satisfied to a high degree of probability that the defendant poses such an unacceptable risk. 3. As an initial observation, the defendant accepted that there are aspects of the evidence against him which must disclose some risk of re-offending in a general sense. The defendant also accepted that, as a general proposition, supervision may be desirable to mitigate risk. However, a Court must not obfuscate the actual test to be applied in order for an order to be imposed. As his Honour Harrison J stated in Pacey (at [53]): [53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release. 1. In determining the "unacceptable risk" test pursuant to s 5B(d), the Court is required to consider: "First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest": Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [26]. 2. The defendant submitted the following factors are particularly relevant in assessing whether or not the defendant poses an "unacceptable risk": 1. The defendant has only ever committed one serious violence offence. This was committed more than 7.5 years ago. The extent to which proper inferences can be drawn and accurate predictions produced based upon a single occasion must, necessarily, be extremely limited; 2. The serious violence offence committed is of a type which at the lower end of serious offences as defined by the Act; 3. Other than the offence, the defendant has only ever committed one other offence of violence, being a common assault which he committed as a child around 10 years ago. Given that the plaintiff has put on no evidence about this offence, it is difficult to know what the factual matrix of the offending was. It was dealt with by the imposition of a bond; 4. The defendant has also only been disciplined for only one violence offence in custody. This occurred more than 6 years ago, during his transition into custody; 5. There is no discernible pattern of offending which would increase the likely risk of a general violence offence occurring; 6. There is no entrenched pattern of violence either before or after the offence; 7. The defendant has never been convicted of doing an act intending to cause death or serious harm. The offence necessarily involved only recklessness as to the causing of grievous bodily harm; 8. The defendant does not have a pattern of use of weapons increasing the likelihood of a serious injury resulting. It is accepted that the offence involved the use of a screwdriver (although the evidence does not prove that the defendant, as opposed to a co-offender, used it). The defendant also has a conviction for the possession of a knife, but that involved his possession of a multipurpose tool on his car, which he said was apparently used for its pliers. There is no evidence of the defendant using of weapons such as firearms or knives which would increase the risk of a serious outcome for any violent offence; 9. The defendant has not committed an offence of violence for many years. He was 18 years of age at the time of the offence. It is well established that there may be cognitive limitations and immaturity present in young people and that they are capable of reform. It is not the case that the single act of a young person is necessarily indicative of, or reflective of, patterns of behaviour upon maturation; 10. In the criminal law context in relation to sentencing young persons, for example, in Miller v R [2015] NSWCCA 86, Schmidt J (with whom Meagher JA and Simpson J agreed) held (at [96]-[97]): [96] Proper attention was not given to this evidence, even though the capacity for young people to reform and mould their character to conform to society's norms, by comparison to older offenders, has repeatedly been recognised. In the result, considerable emphasis has been placed on the need to provide them with the opportunity for rehabilitation (see R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 at [30].) Thus, in the case of offenders under 21 years of age, the Court may direct that the whole or any part of the term of sentence imposed for an indictable offence, be served as a juvenile offender: s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW). [97] It is also well settled that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person, to contribute to their breach of the law (see KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [23]). Further, an offender's mental health problems need not amount to a serious psychiatric illness, before they will be relevant on sentencing. The circumstances may also indicate that a mental disorder of modest severity, may moderate the need for general or specific deterrence (see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [178]). 1. Similarly, in BP v R [2010] NSWCCA 159 per Hodgson JA (at [3]-[6], with whom Rothman J agreed) noted: [3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] - [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33]-[36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors. 1. The defendant has completed a treatment program, targeting his violent offending, namely, the VOTP. He has not committed any violence offence since the completion of that program; 2. While the Risk Assessment Report finds the defendant is at a "high risk" of committing a general violence offence, there are significant limitations with the accuracy of such evidence. There is also no evidence as to his risk of committing a serious violence offence; 3. The defendant has had a mixed response to supervision in the past. In recent times, however, he is apparently doing very well. Again, supervision might be desirable to address a risk of re-offending generally, but any failures to engage with supervision does not necessarily demonstrate that he poses a risk to the requisite standard; 4. The defendant has also been diagnosed with a mental illness. It is apparently reasonably well-controlled at present. The defendant recently sought help to manage his mental illness and was admitted to hospital for a period. Again, while the presence of a mental illness might (or might not) be considered to increase the defendant's risk of re-offending, there is no evidence of a causal connection between the presence of such illness and the commission of a serious violence offence. Moreover, there is a regime under the Mental Health Act, which is available to manage any risk the defendant might pose (or may in the future pose) to himself or the community because of such illness; and 5. The following was also noted: 1. The defendant does not have evidence of antisocial personality disorder increasing a risk of violence; and 2. The defendant does not endorse violent fantasies or preoccupations, or have any paraphilic violent tendencies, or display an attitude supporting violence that increases a risk of violence.

Unacceptable Risk: Section 5B(d)

The decision to make or refuse an application for an extended supervision order is discretionary and requires an evaluative judgment to be undertaken by this Court according to the individual circumstances of the case and having regard to the objects of the Act: Lynn at [51].
Section 5B of the Act provides the Court may make an extended supervision order if: the person is an "offender" who is serving or who has served a sentence of imprisonment for a serious offence (see s 4A of the Act); the person is a "supervised offender" (see s 5I of the Act); the application for the order is made in accordance with s 5I of the Act; and this 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".
As to the question of whether the defendant is an "offender" and "supervised offender", for the purposes of the Act, the defendant properly made the following concessions: 1. The defendant was sentenced in 2012 to a term of imprisonment for an offence of recklessly causing grievous bodily harm contrary to s 35(1) of the Crimes Act; such offending falls within the definition of "serious offence": see ss 4 and 5A(1)(a). 2. The defendant is an "offender" as defined in s 4A of the Act, namely, he is a person over the age of 18 years: s 4A(a) and he is a person who has been sentenced to imprisonment to be served by way of full-time detention following his conviction for a serious offence: s 4A(b). 3. At the relevant time, the defendant was a "supervised offender" as defined in s 5I of the Act; at the time of the application, the defendant was serving the parole portion of the sentence for the offence and was, at its completion, subsequently under an interim supervision order. 4. The application was also brought within the last nine months of the defendant's sentence and was in time: s 6(1) of the Act.
Based upon the common approach articulated by the parties, I consider those threshold conditions have been satisfied in this case.
Further, as will be discussed below, the defendant raised no submission that, in the event the Court made an affirmative finding under s 5B(d), the Court would nonetheless, in the exercise of its discretion, not make an extended supervision order (I will nonetheless make some brief observations about the appropriateness of making an extended supervision order).
Putting aside issues associated with the conditions proposed by the State, it follows that the central question for determination with respect to the application is whether the State has established the threshold requirement under s 5B(d) of the Act.
The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of "high risk violent offender" as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60].
As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, some further observations may be made.
First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely "drastic" consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 ("Kamm") at [41] and [43] (per Harrison J)).
Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in Pacey and Wilson J in Simcock, as follows: [127] In considering the question of whether the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision, I give the words "unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey at [43] as follows: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." [128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
Reference may also be made to the discussion of the test under s 5B(d) in State of NSW v Ceissman [2018] NSWSC 508 at [26] as follows: [26] It is further necessary for the Court to deal with the construction of the term, "unacceptable risk", within the context of the HRO Act. Ordinarily, a risk is the possibility, chance or likelihood of "harm, hazard or loss". In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.
Thirdly, the requisite finding under s 5B(d) may be made, in an appropriate case involving a single serious offence. In Kamm, Harrison J observed (at [44]): [44] … while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence.
Finally, the defendant accepted that there were aspects of the evidence against him, which must disclose some risk of re-offending in a general sense. The defendant also accepted that - as a general proposition - supervision may be desirable to militate risk. However, it was contended, such a consideration must not "obfuscate the actual test to be applied in order for an order to be imposed". Reliance, in this respect, was placed upon the judgment of Harrison J in Pacey (at [53]): [53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.
The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of "protective measures".
Without repeating the earlier summary of the defendant's submissions to which I have regard in the evaluative judgment here made, it is useful to point, at the outset, to some particular features of the defendant's case in this respect.
The defendant relied substantially upon the fact that the defendant had engaged in a single serious violence offence: an offence committed over 7 years ago. There was no discernible or entrenched pattern of violent offending before or after the offence and certainly no pattern, it was submitted, that would increase the likely risk of a serious violence offence occurring.
The defendant submitted that, in these circumstances, there was an extremely limited prospect of proper inferences being drawn as to the existence of an unacceptable risk.
Moreover, it was submitted there was an absence of evidence before the Court as to the existence of a risk of the defendant committing another serious violence offence, particularly having regard to the following characteristics of the defendant or his circumstances: a limited criminal history (and pattern), youth and passage of time since the offence. It was also contended that it is not the case that the single act of a young person is necessarily indicative of, or reflective of, patterns of behaviour upon maturation.
In the result and having regard to deficiencies in expert reports, there was a significant limitation in the "accuracy" of risk assessments before the Court. I note, in that respect, issues of that kind were addressed in the course of assessing Dr Ellis' and Ms Howell's evidence and rejected. I will however, briefly return to those issues.
Further, it was submitted there was an absence of evidence that the presence of mental illness might be considered to increase the risk of re-offending. There was a failure to show a causal connection. Again, those submissions were, in part, dealt with earlier, but I will return to them below.
Various authorities of this Court were relied upon in support of the defendant's resistance to the Court reaching the requisite satisfaction under s 5B(d), particularly upon the notion that the requisite satisfaction was not reached in those matters where comparable circumstances existed or the circumstances were such that the risks considered by the Court in those matters, were greater than those present.
At a very broad level, these submissions should be rejected for two fundamental reasons: 1. Great caution should be exercised in treating the evaluative judgments of this Court under s 5B(d) as precedent, particularly in the manner proposed by the defendant. The evaluative judgment by the Court under s 5B(d) needs to be made upon the particular facts and circumstances of the application brought before the Court for an extended supervision order. This matter is an exemplar of the need for such reticence given the different and particular factors operating upon the assessment under s 5B(d). 2. Whilst the factors relied upon by the defendant are, no doubt, relevant to that evaluative judgment, when the entirety of relevant factors are taken into account, the defendant's contentions understate or underestimate both the likelihood of the occurrence of the risk eventuating and the gravity of the risk that may eventuate.
The opinions of Dr Ellis, Ms Howell and Ms Tulloh, based upon their clinical assessments, were that the defendant was in the high risk category of serious violent offending, with the likelihood of that offending resulting in serious harm, having regard to dynamic risk factors, professional judgment tools and actuarial tools.
Putting aside momentarily risks associated with the defendant's drug and alcohol disorder and his mental health illness, namely schizophrenia and particular issues regarding weapons, the dynamic risk factors which were present at the time of the offence are relevantly and substantially unabated having regard to the following considerations: 1. The defendant is a 26-year-old man who uses violence as a means of problem solving. His criminal history, custodial history and behaviour on parole evidences that when he commences an act of violence he does not have the self-control to regulate or stop himself to prevent serious harm resulting. The Risk Assessment Report also sets out that the defendant's impulsivity, lack of emotional control and drug use (to which I will return) significantly reduce his capacity to restrain himself in situations where there is confrontation, hostility or violence. For example, Ms Tulloh opined that "[he] is unlikely to have the behaviour controls to engage in problem solving or conflict resolution strategies". In particular, if he was engaging in substance use, in the company of anti-social peers and in possession of a weapon (or if there was one readily available), she opined that he would have even less behavioural control to prevent a violent incident. Similarly, if a confrontation were to escalate into violence, he is unlikely to have the presence of mind or emotional control to extract himself before serious physical harm is imposed on another person. That is he would be unable to determine when the victim had "had enough". 2. The defendant has justified his violence on the basis of loyalty to or protection of his criminal peers. The defendant is easily swayed or encouraged by his criminal peers. The defendant is still young and has not matured in this aspect of his life. The defendant uses violence as a means of problem solving. This is supported by the opinion of the independent experts and also Ms Tulloh in the Risk Assessment Report and Ms McGuinness in the VOTP report. 3. The court appointed experts unanimously opined that the defendant lacked the tools to recognise his offending pathways and to disengage himself from violence once it is commenced. Dr Ellis also opined that the following factors indicated a moderate to high loading of risk of serious violence offending: unsophisticated insight into his propensity for violence and no identifiable stress management techniques; limited personal community supports and high need for professional services and plans to contain his violence; and the defendant's young age suggests maturity has yet to reduce his risk of re-offending. 4. Whilst particular reliance was also placed upon the youth of the defendant and his capacity to reform, as noted above, Dr Ellis opined that the defendant is "still relatively young" and that factor indicates "that maturity has yet to impact on reducing risk". I accept the evidence of Dr Ellis in that respect. The authorities referred to by the defendant do not relevantly impact upon that opinion.
Reliance was also placed upon the fact that the defendant has only ever committed one serious violence offence, more than 7 years ago. The defendant contended that the extent to which proper inferences can be drawn and accurate predictions produced based upon that single occasion must, necessarily, be extremely limited. That submission has been earlier dealt with in this judgment. I do not repeat that earlier discussion but would also note the following. That submission overlooks the fact that the tools and scales relied upon by the court appointed experts (and Ms Tulloh) were undertaken by the respective experts as fresh assessments (as well as with an eye to earlier assessments using tools and scales) and in the light of present day clinical assessment which, inter alia, provide opinions as to current and ongoing dynamic risk factors.
The evidence is that the VOTP and EQUIPS Foundation programs have not resulted in substantial changes to the defendant's antisocial attitudes, impulsivity or poor emotional control, in the light the expert evidence. The defendant has not committed any violence offences since the VOTP but as Dr Ellis opined he had limited opportunity to do so.
To these factors must be added the significant risks associated with the defendant's diagnosed drug and alcohol dependency and schizophrenia. There are also dynamic risk factors.
The court appointed experts were also unanimous that the defendant has a substance use disorder (amphetamine, methamphetamine, cannabis and alcohol), which it was opined, fuels his risk of further violence.
Ms Howell opined that the defendant's "long standing drug use" appears to "disinhibit behaviour and places him in contact with anti-social peers". She identified substance abuse as a critical risk factor: "as it underpins his capacity to moderate interpersonal aggression, emotional regulation, decision to carry a weapon and decisions regarding the use of violence".
Dr Ellis considered that intoxication and psychotic symptoms elevate the defendant's risks by increasing the possibility of fear and anger during an assault. Additionally, his history of a sustained physical attack and the use of weapons would escalate any impulsive act to a serious violence offence.
It is clear that, absent supervision, there is a significant risk the defendant would return to drinking alcohol and drug taking.
A report from Juvenile Justice dated 20 April 2009 identified that the defendant had been drinking alcohol since the age of 13 and that his aggression was connected with his level of drug and/or alcohol use.
The offence occurred after a night of drinking alcohol (both Mr Dieter and Ellis DCJ found alcohol contributed to the offence). Significantly the defendant described to Ms Howell that the use of alcohol contributed to his offending. The defendant also admitted to Dr Ellis that he intravenously used heroin and methylamphetamine whilst in custody. He was released on parole in 2017 and shortly after release used methylamphetamine.
In October 2017, he was arrested (leading to his conviction as to possession of a knife in a public place). He refused to provide a sample.
The defendant is placed in custody between November 2017 and May 2018. Shortly after his release, he again used methylamphetamine. In July 2018, he was on, as the State described it, a "drug binge" for four days. By 12 July 2018, he had refused testing on five separate occasions. There was reduced medical testing from August to October 2018 after the passing of his mother.
The defendant has been taking methadone, at least since the imposition of an interim supervision order (with weekly testing). However, the defendant has not been treated for his substance use disorder.
As earlier identified from the opinion of Dr Ellis, the defendant suffers from schizophrenia which, unless managed, significantly elevates his risks of re-offending. Alcohol and Illicit drugs could destabilise the defendant's mental health.
The defendant's mental health was unstable during 2018. In that year he was assessed by Wyong Mental Health Unit. He appeared to be stable in June and July 2018 but after receipt of the news of the passing of his mother his condition destabilised. He was hearing voices in August 2018 and in September 2018 he was admitted to the Mental Health Unit of Wyong Hospital for a drug induced psychosis episode.
Reference was made by counsel for the defendant as to the lack of a "pattern" of offending, particularly with respect to serious violence offences. Consideration in this contention should extend to criminal history and the presence of weapons.
As to the former consideration, and as previously noted, there was a juvenile common assault offence (more than 10 years ago), the offence (more than 7 years ago) and an offence in custody (more than 6 years ago).
Three matters may be mentioned in that respect. First, as I earlier explained, the absence of more than a single serious violence offence is, both as a matter of principle and in the context of the particular circumstance of this case (as discussed above), a relevant but certainly not determinative consideration as to the assessment of unacceptable risk. However, the submission fails to grapple with the fact that the dynamic risk factors operating at the time of the commission of the offence remain substantially unabated.
Secondly, as earlier mentioned, Dr Ellis observed there was a "pattern" or "past history" of the defendant committing violent acts in different settings. He stated "[s]o there's a domestic assault in childhood, and then there's the serious violent offence, and then there's the assault in custody". He accepted "it's a limited pattern. He's had limited opportunity". During cross-examination, Dr Ellis also accepted that the offence was the only example of "serious violence" for the purposes of his assessment. However, he was concerned that the defendant's course of conduct, albeit limited, had a relevant correlation to the risks he had assessed.
Thirdly, as discussed below, the assessment of risk also needs to be made in the context of the likelihood that the consequences of any violent re-offending will be serious (in the sense of serious physical harm).
Turning to weapons, counsel for the defendant submitted that the defendant does not have a pattern in relation to the use of weapons that would support a finding as to an increased likelihood of a serious injury resulting. It was accepted that the offence involved the use of a screwdriver (although the evidence did not prove, it was submitted, that the defendant, as opposed to a co-offender, used the weapon). It was also accepted that the defendant had a conviction for the possession of a knife, but it was contended that the instrument within his possession was a multipurpose tool, which he said was apparently used for its pliers. As a general proposition, weapons increase the risk of a serious violence offence, particularly in the context of a deterioration of mental health or use of drugs or alcohol.
Contrary to the submissions of the defendant, with respect to the use of weapons, the cited instances reveal in my view, a proclivity for the defendant having weapons in his possession, which include knives, a factor which, on the opinion of Dr Ellis escalates his risk of violence to one of serious violence. Ms Howell also considered the defendant's "use of weapon" (together with consideration of, inter alia, chronic substance abuse issues, cognitive distortions, emotional control, impulsivity, criminal peers, lacking insight into violence) as relevant to the defendant's position "in the high risk category to reoffend".
His juvenile offence involved using rocks in support of a peer. He narrowly missed the victim.
The offence involved the use of a screwdriver. The evidence does not reveal he used the screwdriver but he was involved in a common enterprise in which such a weapon was used.
His attitude to the possession of knife offence merely underlines his lack of understanding of his offending and the potential risks. It matters little that the instrument in question was also a tool. As Ms Howell opined, the important question in terms of risk was whether he was in possession of a knife. It may be noted that in a Justice Health report dated 12 November 2017 the defendant is recorded as saying he was always "armed with blades".
As to the submission of the defendant concerning the gravity of the risk, I do not accept the defendant's submission that the offence should be treated as less grave because it was not an act intending to cause death or serious harm and only involved "recklessness".
The sentencing judge described the nature of the violence was "gratuitous", noting the defendant stomped on V1's head as V1 lay on the ground. The objective seriousness of the offence was high because of the use of a weapon, the kicking and stomping and the degree of serious harm suffered by V1. The sentencing judge, in this respect, found the offending to be "within the high range of offending" of that type.
The nature of the defendant's past offending was considered by each of the court appointed experts and Ms Tulloh in reaching their respective conclusions that the defendant was at a high risk of further violent offending resulting in serious physical harm.
Dr Ellis and Ms Howell each opined that if a further act of violence was committed, it was likely to result in serious injury.
As to the authorities relied upon by the defendant I note my previous observations. I accept the submissions of the State in this respect.
The evaluative judgment of this Court, with respect to s 5B(d) of the Act, should not be approached as if constituting precedents. Each case that comes before for the Court under the Act needs to be considered on its own facts and circumstances, as each unique factual scenario will affect the evaluative task that is to be undertaken by the Court.
In any event, there were significant differences between the three cases relied upon by the defendant and in the present matter, namely, all of the defendants were significantly older, none of them presented with schizophrenia and two of them were "quite reformed" in their behaviour. In the third case, the risk assessment report was against the State, in terms of findings of risk. In this case, the Court has the unanimous opinion of experts as to the high risk of serious offending which the defendant poses. The defendant is a young offender lacking maturation who presents with ongoing dynamic risk factors including schizophrenia and a drug and alcohol disorder.
For the purposes of evaluating "unacceptable risk" under the Act, and having taken into account to the standard required by s 5B(d), I am satisfied there is a high probability that the risk will manifest and there will be serious harm if the risk were to manifest.
I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision under an extended supervision order.

Extended Supervision Order

Whilst recognising the Court is possessed of a discretion to make or not make an extended supervision order under s 9(1), after consideration of "the mandatory matters in s 9(3) and any other matter it considers relevant" and identifying some relevant principles bearing upon the exercise of that discretion in written submissions, the defendant did not advance contentions, as such, as to whether the Court should exercise the discretion in his favour, if the Court had otherwise considered that, pursuant to s 5B(d), it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
Nonetheless, I will make some brief observations about the appropriateness of the exercise of a discretion to make an extended supervision order having regard to the factors under s 9(2) and (3) of the Act.
Counsel for the defendant conceded that the defendant has had a mixed response to supervision in the past. However, whilst supervision might be desirable to address a risk of re-offending generally, it was contended that any failures to engage with supervision do not demonstrate that he poses a risk to the requisite standard.
In my view, supervision would be the effective, justified and reasonably appropriate measure to reduce the defendant's high risk of violently re-offending and an extended supervision order would be protective in that regard (see s 3 of the Act).
The experts unanimously opined that the defendant's risks are best managed, at this time, under an extended supervision order.
Dr Ellis considered that "[t]he mainstay of effective risk management in this case is treatment of [the defendant's] schizophrenia". Dr Ellis considered antipsychotic medication, psychological treatments, substance use treatment and vocational activity would reduce the likelihood of the defendant re-offending over time.
He opined that the treatment and supervision plan proposed under the Act, generally addressed the relevant risks posed in this case. The supervision scheme is such that deterioration can be detected early, and interventions applied which could manage the situation presented. It is agreed that the supervision and monitoring has limitations, and could never eliminate the risk posed, however would likely significantly reduce it.
Ms Howell considered risk management strategies would need to focus on drug and alcohol treatment and oversight of that treatment.
Ms Tulloh opined that the defendant would benefit from intensive supervision and case management by CSNSW.
The Risk Management Report proposed a Risk Management Plan to address the defendant's criminogenic needs. The higher level of supervision involved in an extended supervision order, compared to standard supervision, would assist in helping the defendant develop a pro-social lifestyle in the community targeting his substance abuse and impulsivity. There is nothing in that report to suggest there would be impediments to supervising the defendant. The limitations noted are largely reliant on the level of the defendant's compliance.
As to compliance, the State noted that the defendant's conduct while on the interim supervision order was not necessarily a sound measure of how he may comply or not comply with an extended supervision order. The following facts were referenced in support of that submission: 1. the defendant's compliance with his interim supervision order has shown aspects of commitment to some of the conditions; and 2. due to the defendant's mother's passing there has been greater latitude and sensitivity provided by the Extended Supervision Order team at this time (for instance an absence of being required to report a weekly schedule of movements).
Three final factors were relevant in this respect: 1. The defendant's criminal history, custodial history and conduct on parole evidence the need for supervision to reduce his risks of serious violent offending. 2. Holding to mind that the safety of the community is paramount, an order must be preferred to release without any supervision. 3. An extended supervision order will achieve both objects of s 3 of the Act, namely, ensuring the safety and protection of the community and encouraging rehabilitation.
I determine an extended supervision order should be made and now turn to the question raised in the proceedings as to what conditions should attach to the same.

Principles

A balancing exercise is required to impose the least intrusive conditions consistent with the Court's assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effective for addressing the risk: Lynn at [129]-[130] (per Basten J).
The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 held that s 11 vests the Court with a "broad" discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). The purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

Submissions - General

The parties made submissions regarding the making of conditions with respect to an extended supervision order. The State, in particular, relied upon the evidence of the court appointed experts and Ms Farroway.
The experts unanimously stated that the defendant requires a high level of professional support and intensive supervision to target his criminogenic needs including psychiatric treatment and drug and alcohol rehabilitation. The experts are supportive of monitoring and reporting obligations, accommodation restrictions, employment and education conditions and conditions that prohibit drug and alcohol use and associating with others who may be using illicit drugs or under the influence of alcohol.
Ms Farroway deposed that a schedule of approved movements permits the ESO Team to approve the defendant's movements and electronic monitoring records if the defendant is at the location as reported in his approved schedule. From the ESO Team's perspective, this reduces the risk of associating with anti-social peers, reduces impulsive offending and provides the defendant with structure and oversight.
Dr Ellis accepted the proposed conditions as appropriate and appeared to be "standard". He noted, however, "I did think that there could be benefit from simplifying them and giving him a simplified and, you know, clearly understandable, you know, list, that it would make it better for him to be able to comply with if an order was imposed".
Ms Howell gave evidence that the proposed conditions appear to "adequately address all of the concerns".
The defendant submitted, if the Court considered that it was necessary to impose an extended supervision order, that many of the conditions sought by the plaintiff were not appropriately tailored to meet the specific risk posed by him. I will turn to those particular contentions under the next heading.

Submissions - Particular Issues

Following the final day of hearing, the parties each produced a note to the Court that further clarified the parties' position with respect to the form of the conditions to be imposed, if the Court was minded to do so, and supplemented earlier submissions.
The defendant raised concerns with respect to the following categories of condition in the schedule accompanying the amended summons: 1. Electronic monitoring (condition 5); 2. Schedule of movements (conditions 6-8); 3. Curfew (condition 11); 4. Accommodation (conditions 13 and 14); 5. Employment, finance and education (condition 20); 6. Drugs and alcohol (condition 25); 7. Non-Association (condition 30); 8. Mobile phone and electronic communications (conditions 36, 37 and 40); 9. Search and seizure (conditions 41-44); and 10. Medical intervention (condition 53).

Electronic monitoring

As to the electronic monitoring, I note the findings of Fagan J at the preliminary hearing: … a condition of the Interim Supervision Order that the defendant should wear electronic monitoring equipment is not shown to be necessary. What I have described is not a pattern of behaviour or a form of risk which could be usefully addressed or alleviated by maintaining electronic monitoring of the movements of the defendant. His risk of misusing drugs, of not taking appropriate psychiatric medication and of acting under an impulse to violence is not a risk that is associated with him moving in particular localities or in proximity to particular people or their residences or places of work. The risk is of erratic outbursts which might erupt at any place and at any time. It does not appear to me that electronic monitoring would enhance his supervision and, on the contrary, there is the potential for it to be counterproductive by inducing reaction and agitation on his part.
In addition to the findings of Fagan J, counsel for the defendant also relied upon the evidence of Ms Coultas-Roberts. By her affidavit, Ms Coultas-Roberts noted the views of the defendant's DSO, Ms Hollis, namely, that electronic monitoring would be detrimental to the defendant's supervision. However, that evidence was contradicted by Ms Hollis in her affidavit sworn 26 November 2018. Ms Hollis deposed: "I do not recall tell[ing] Ms Coultas-Robert that electronic monitoring would be detrimental. I stated that the defendant finds it difficult to comply with the times of his schedule, and had asked whether electronic monitoring would be a component of the extended supervision order".
The State relied upon the recent fact of the defendant's disappearance in September 2018 to support the imposition of the condition, notwithstanding the remarks of Fagan J. It was contended that such an occurrence compromised the safety of the community, particularly as the defendant's mental health had declined at that time. However, as counsel for the defendant pointed out, the defendant was on parole at the time - he was not subject to an interim supervision order. Further, he was taken to a hospital in a delusional psychiatric state. The circumstances of the disappearance do not suggest the defendant's conduct was in any way deceptive. I agree with the finding of Fagan J. I do not impose conditions as to electronic monitoring.

Scheduling

For the same reasons identified by Fagan J above, counsel for the defendant contended there was no reason for the defendant to submit a schedule of movements for the following reasons: 1. his risk is not correlated to being in any particular place; 2. there remains a power pursuant to proposed conditions 3 and 17 for the defendant's DSO to direct him not to attend any place if any issue arises; and 3. the defendant is already obliged to report where he has been in accordance with proposed condition 9.
Counsel for the defendant also submitted that the defendant does not dispute the making of proposed condition 18, which would prevent him from attending any place that he knows drugs are illegally sold.
The State pressed the conditions as proposed with respect to a schedule of movements. It was submitted schedules provide structure, which in turn reduces the risk of impulsive violence. It also encourages pro-social activities and enables the ESO Team to monitor the defendant's associations with criminal peers.
Further, it was submitted that "[t]hese conditions work together with electronic monitoring to ensure the defendant is where he says he will be". However, in the event the Court was not minded to impose electronic monitoring, the State contended: "there is an even greater need to have a weekly reported schedule to know where the defendant is and to monitor his risk factors".
Reference was also made to the evidence of Ms Farroway and the OIMS notes as to the fact that the conditions can and have been flexibly applied.
I find the conditions, in this respect, as sought by the State to be appropriate. The imposition of a schedule provides structure and encourages pro-social engagements, which reduce the risk of the defendant re-committing another serious offence, particularly one of impulsive violence.

Condition 11: The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.

As to proposed condition 11, the defendant contended that there was "no evidence for why such condition is necessary". It was also submitted, whilst the offence was committed after midnight, "there is no pattern of offending involving a risk with the defendant being absent from home between 9am and 6am". Thus, such condition may be described as "significantly oppressive" and "it may prevent him from engaging in activities that result [in] proper reintegration in the community (which may, in fact, reduce any risk of reoffending)".
The defendant proposed the following alternative wording: "If a DSO directs him to do so, the defendant must be at his approved address between 9pm and 6am".
In reply the State relied upon the evidence of Ms Hollis, who gave evidence as to the success of curfew enabling a better management of the defendant on the interim supervision order and thereby reducing his risk.
The paramount consideration for the Court is the safety of the community: s 9(2). The State contended that the curfew condition justifiably and reasonably addresses the defendant's risks with the flexibility of permitting the relaxation of the curfew if the defendant specifically seeks that exception. Risky scenarios are engaged in at night and his associations with criminal peers is a risk. Curfew is still able to be applied flexibly at the discretion of the DSO on the current wording.
I consider condition 11, as formulated by the State, to be appropriate essentially upon the basis of the factors relied upon by the State.

Condition 13: The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.

As to proposed condition 13, the defendant contended that there was "no evidence for why such condition is necessary". It was also submitted, whilst the offence was committed after midnight, "there is no pattern of offending involving a risk with the defendant being absent from home between 9am and 6am". Thus, such condition may be described as "significantly oppressive" and "it may prevent him from engaging in activities that result [in] proper reintegration in the community (which may, in fact, reduce any risk of reoffending)".
The defendant proposed the following alternative wording: "If a DSO directs him to do so, the defendant must not spend the night anywhere other than at his approved address".
In response to the alternative wording, the State submitted: The difficulty of the proposed wording is that it may in effect work to the detriment of the defendant. If such a direction is given by the DSO it would arguably need to be given as a blanket prohibition or alternatively the proposed wording presupposes a level of knowledge regarding the defendant seeking to spend the night somewhere. The condition in the amended summons addresses the risk of associating with criminal peers but in its wording proposed by the plaintiff enables the defendant to have a dialogue with his DSO about seeking an exception. That conversation would invite consideration of risk.
I consider condition 13, as formulated by the State, to be appropriate essentially upon the basis of the factors relied upon by the State in response to the defendant's alternative version of condition 13 and having regard to the expert opinion as to risks associated with engagement with criminal peers.

Condition 14: The defendant must not permit any person to stay overnight, at his approved address, without the prior approval of his DSO.

The State, in this respect, relied upon its submissions advanced in relation to condition 13, in particular, it was submitted that the condition served "to monitor the same risk of associating with criminal peers".
Counsel for the defendant submitted, correctly, that the defendant has not committed offences of any sexual nature. In the absence of such evidence, there is no proper basis to mandate the inclusion of condition 14 in any extended supervision order. Such a condition, it was submitted, is "a significant curtailment of the defendant's [and his grandparents'] lawful rights". I also accept that submission, if there is added the consideration that the condition would not seem to achieve the same benefit of risk avoidance as found in condition 13.
I do not accept the State's submission as to condition 14. In the particular circumstances of the defendant, there is no proper basis under the Act for the imposition of such a condition.

Condition 20: The defendant must not start any job, volunteer work or educational course without notifying his DSO

Counsel for the defendant opposed the inclusion of condition 20. It was submitted that "the defendant does not have any history which would suggest his working or volunteering would result in an increase of risk for the commission of a serious offence. If anything, it would be likely to ameliorate such risk". Further, it was contended that "[t]here remains no evidence that by the defendant undertaking employment, educational courses or education would increase the risk of the commission of an offence and so the condition is unnecessary".
In reply, the State submitted: "[n]otification of where the defendant is working or volunteering or studying enables the ESO team to conduct any necessary checks and risk assessments". Reference, in this respect, was also made to the evidence of Ms Farroway in her affidavit affirmed 7 August 2018 (para 71).
I accept the submission of the defendant in this respect. The State has not established the effectiveness of this condition in addressing risk in this case. The condition is unnecessarily intrusive. I reject condition 20.

Condition 25: The defendant must not enter any licensed premises he knows or ought reasonably to know are licensed without the prior approval of his DSO.

Counsel for the defendant contended that condition 25, notwithstanding the subsequent amendment by the State to include the words "he knows or ought reasonably to know", is likely to result in significant oppression to the defendant and, in fact, reduce the likelihood of successful reintegration after a long custodial sentence. This was supported with reference to the commonplace in modern society for "many places are licensed including, inter alia, many cafes and restaurants and most cinemas". Thus, it was contended that the current wording is not well-tailored if the primary purpose is to avoid the defendant consuming alcohol, which, it was submitted, is already adequately dealt with by conditions 22, 23, 26, 27 and 35.
If the Court was minded to impose such a condition, the following alternative wording was proposed by the defendant: "The defendant must not enter any hotel or public house without prior approval of his DSO".
The State contended that the alternative wording proposed by the defendant was "ambiguous as to what risk is being addressed". It was contended that the State's formulation of the same condition was justified as a condition imposed to monitor "his use of alcohol and ensure the defendant avoids places that may encourage his high risk scenarios". Further, the State reminded the Court that the offence occurred at night at an RSL where alcohol was served.
The State submitted: "[t]he condition per the amended summons addresses the original concerns of the defendant. He will not be breached if he has entered somewhere where he could not have known was licensed".
There is clearly a strong relationship between the defendant's consumption of alcohol and the risk of violence or a further serious offence. Further, the condition is designed to avoid that which is likely to be productive of high risk scenarios.
After consideration of both alternative formulations, by the respective parties, within the circumstances of the risk identified, I reached the view that further amendment was appropriate to allow for some additional latitude, particularly in light of the age of the defendant. The condition proposed is designed to tailor the condition to avoid the defendant consuming alcohol whilst providing reasonable opportunity for him to engage in pro-social activities and reintegrate into society. Accordingly, the words "other than cafes and cinemas" was added as follows: The defendant must not enter any licensed premises, other than cafes and cinemas, he knows or ought reasonably to know are licensed without the prior approval of his DSO. [Emphasis added.]

Condition 30: The defendant must not associate with any people who he knows or ought reasonably to know will be or are consuming or under the influence of alcohol (except his grandparents) without the approval of his DSO. The defendant must obtain that approval as soon as the defendant knows or becomes aware that persons (other than his grandparents) he is associating with are or will be consuming alcohol.

Counsel for the defendant repeated her submissions, in this respect, in relation to condition 25. It was submitted that, notwithstanding the State's amendment to include "other than his grandparents", the condition creates an impediment upon the defendant's ability to successfully reintegrate into society. Counsel for the defendant expanded upon this impediment, it was contended that the condition prevents "the defendant [from] sharing a dinner table at his house if a guest or family member is drinking a glass of wine".
In reply, the State advanced the following submissions: 1. Condition 30 still allows for the defendant to be able to be present with someone drinking alcohol, but requires that approval from the DSO is simply required first. As to the example of a dinner guest, "[i]f the defendant knows there is a dinner guest coming it would be sensible to advise the ESO Team who would likely grant the exception". The State noted, in this respect, that the ESO Team would be expected to approach their task "with constructive pragmatism". 2. As to the particular wording suggested by the State, "it allows a general exception for the grandparents which enables the more ordinary circumstance of the grandparents drinking alcohol in his presence to occur without approval".
The condition is appropriate to manage the risk associated with alcohol consumption and for the reasons addressed by the State as summarised above. I do not consider that the condition will impede his reintegration into society as I expect it will be applied by the extended supervision order with a constructive pragmatism (consistent with the demonstrated approach of that team in this matter).
Condition 30 in the terms proposed by the State is appropriate.

Mobile phone and electronic communications

As to conditions 36, 37 and 40, counsel for the defendant relied upon the findings of Fagan J at the preliminary hearing: Conditions 36 to 40 of the proposed Interim Supervision Order as sought by the plaintiff concern the defendant's use of mobile phones and SIM cards. These orders envisage that the defendant would be required to provide his Departmental Supervising Officer with a list of all mobile phone devices and SIM cards, and that the DSO would be permitted to inspect remotely those phones and to monitor his activity on any device. The conditions would also require that the defendant follow directions of the DSO with respect to access to the internet on any tablet or data storage device or computer. By cl 39 it is proposed that the DSO should be able to require the defendant's telephone carrier or internet service provider to share information concerning his accounts.
As to the same, Dr Ellis gave the following evidence at the final hearing: Q. That's the Court's concern. How does the defendant permitting those supervising him to look at his electronic devices manage his risk of the commission of a serious violence offence? A. I think this would be mainly in looking at who he's associating with, because the main risk of association, if you're associating with people who endorse the use of violence or endorse general criminal behaviour that's, if you're associating with people who reinforce those ideas with you, your risk of violence may increase. A similar would be if you are associating with people who use substances, so I think that would be the main rationale for looking at who you're associating with, and so your online activity gives some indication of that.
Counsel for the defendant also noted, "[t]o the extent that it is relevant, the defendant [presently] has no telephone or access to the internet. Therefore, there has also been no cause for concern about his access to the same".
The State contended that such conditions permit oversight, particularly in the event the defendant acquires a phone, as to "who the defendant is associating with and monitors whether he is engaging in the purchase of drugs".
It was conceded that an earlier formulation of the Schedule attached to the summons "went further than what was necessary to address risk".
In having regard for the remarks of Fagan J at the preliminary hearing, notwithstanding the subsequent amendments by the State, I find his Honour's remarks, with respect, to be appropriate and correct. I reject conditions 36, 37 and 40.

Search and seizure

Counsel for the defendant submitted, in this respect, that the risk the defendant poses does not appear to be correlated in any way to his possession of anything (such as child pornography). Further, since the interim supervision order was imposed, the premises in which the defendant resides have not been searched. In that light, it was contended "[t]here appears therefore to be limited, if any, need for such a condition".
It was also submitted that the condition is "likely to adversely impact upon the rights of third parties, including the defendant's grandparents with whom he resides". Counsel for the defendant contended that the level of invasion of the defendant and his family's privacy is not necessary to meet any identified risk.
The State pressed for the inclusion of such conditions based upon the identified risk of the defendant, namely, "his proclivity to possess weapons or take illicit substances". Thus, conditions with respect to search and seizure provide a means of oversight of that risk.
I do not accept the submissions advanced by the defendant. In light of the risks earlier found and the submissions of the State, with which I agree, in my view, conditions with respect to search and seizure are necessary to enable oversight and management of those risks.

Condition 53: The defendant must agree to the persons referred to in condition 49/50 above sharing information including reports on his progress and information he has told them with each other and, with his DSO and with any other persons involved in his supervision only if that information is relevant to the defendant's risks of committing another serious violence offence

Counsel for the defendant contended that the imposition of condition 53, in the terms proposed, was likely to be "counterproductive to the defendant's healthcare needs" by permitting the confidentiality he has with his health care professionals to be violated. Such circumstances, it was submitted, may impair that therapeutic relationship - particularly in the absence of the defendant's "confidence in the confidentiality of such communications".
In support of its exclusion, counsel for the defendant further submitted: 1. This is not a case where those supervising him need access to, for example, his sexual predilections as discussed with a medical practitioner in order to manage risk; and 2. There are well-established principles which permit patient information being shared if the patient is a risk to himself or others, which would be sufficient protection in the present case.
As to the subsequent amendment by the State to include the qualification: "only if that information is relevant to the defendant's risks of committing another serious violence offence", counsel for the defendant accepted such an addition would "ameliorate to a significant degree to the defendant's concerns". However, the defendant maintained that "the phraseology of the condition is vague and would still have the effect of impacting upon the therapeutic relationship between the defendant and his clinicians as the defendant would not know what aspects of his otherwise-confidential communications would be disclosed as relevant to his 'risk'".
The State submitted that the wording per the amended summons addressed the defendant's concerns. The phraseology was not vague. Ultimately, the condition justifiably and appropriately reduces risks addressing the paramount concern of safety to the community. That must prevail over the desire to ensure confidentiality of communication.
The Court imposed the following condition which represented an appropriate balance between maintaining the safety of the community as a paramount concern and ensuring that there is no unnecessary impairment to the therapeutic relationship between the defendant and those treating him: The Defendant must agree to the persons referred to in 49 and 50 above sharing information with each other and the DSO as to the fact of his attendance at appointments and his overall progress in therapy, counselling or other treatment including the practitioner's general opinion as to his development of insight into offending risk factors and, in particular, the Defendant's risk of committing another serious violence offence.

Condition 49

The condition was not the subject of argument. The Court simply amended condition 49, to remove a typographical error with respect to the repeat inclusion of "any healthcare practitioner".

DURATION

As for duration, the court appointed experts considered an extended supervision order of 3 years was necessary for the defendant to complete any drug rehabilitation program and to "refine the appraisal of risk". Dr Ellis also commented that 3 years may be a reasonable period of time for the defendant to consolidate a stable mental health state and have engaged in regular and meaningful activity in the community.
I shall fix the duration of the order made at 3 years.

CONCLUSION

The orders made and entered with respect to this matter on 19 December 2018 were made for the foregoing reasons.

Annexure A (312 KB, pdf) 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: 30 April 2019

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

OBJECTS OF THE ACT

The Act's primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community "must be the paramount consideration" when determining an extended supervision order application: s 9(2).
The word "ensure", which is referred to in the objects of the Act, 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: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [61].

State of New South Wales v McGorm

At a glance

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