State of New South Wales v McGrath

Supreme Court of NSW|2016-12-07|Before: Johnson J, Hulme J, Grove J

JUDGMENT

JOHNSON J: By Summons filed on 30 September 2016, the Plaintiff, State of New South Wales, sought orders under the Crimes (High Risk Offenders) Act 2006 ("the Act") with respect to the Defendant, Andrew Mark McGrath.

Preliminary Hearing and Orders

On 3 November 2016, following a preliminary hearing, RA Hulme J made orders under s.7(4) of the Act appointing two qualified psychiatrists or psychologists to conduct separate examinations of the Defendant and to furnish reports to the Court, together with an interim supervision order ("ISO") pursuant to ss.10B, 10C(1) and 11 of that Act, with the ISO to commence on 17 December 2016: State of New South Wales v McGrath [2016] NSWSC 1560.
The Defendant had been sentenced by Grove J for the offence of murder to a term of imprisonment for 18 years commencing on 18 December 1998 with a non-parole period of 13 years and six months: R v McGrath [2000] NSWSC 419. An appeal against sentence was dismissed by the Court of Criminal Appeal: R v McGrath [2002] NSWCCA 207.
The Defendant has been on parole since 27 May 2016. His entire sentence will expire by effluxion of time on 17 December 2016. It was for this reason that RA Hulme J directed that the ISO commence to operate from that date.

Final Hearing of the Application

The final hearing of the Plaintiff's application came before me on 7 December 2016.
By that time, the Court-appointed psychiatrist (Dr Gerald Chew) and psychologist (Mr Patrick Sheehan) had examined the Defendant and provided reports to the Court.
Mr Aitken of counsel appeared for the Plaintiff and Mr O'Neil of counsel appeared for the Defendant at the final hearing.
The following documentary material was tendered or read on behalf of the Plaintiff at the hearing: 1. affidavit of Vincenzo Camporeale affirmed 30 September 2016; 2. Exhibit VC1, the two-volume exhibit to the affidavit of Mr Camporeale affirmed 30 September 2016; 3. affidavit of Sarah Gilmour sworn 14 October 2016; 4. affidavit of Jessica Wardle sworn 18 October 2016; 5. the second affidavit of Jessica Wardle sworn 24 October 2016; 6. the third affidavit of Jessica Wardle sworn 29 November 2016; 7. affidavit of Cherice Cieplucha sworn 28 November 2016; 8. affidavit of Ajay Dayal affirmed 30 November 2016; 9. expert report of Mr Sheehan, psychologist, dated 18 November 2016 (Exhibit A); 10. expert report of Dr Chew, psychiatrist, dated 19 November 2016 (Exhibit B).
Mr Sheehan, Dr Chew, Ms Cieplucha and Mr Dayal each gave oral evidence and was cross-examined at the final hearing.
No evidence was tendered in the Defendant's case.
Helpful written submissions were made by Mr Aitken and Mr O'Neil and counsel spoke to those written submissions at the conclusion of the hearing.

Principal Issues for Determination

The principal issues for determination by the Court are as follows: 1. whether the Plaintiff has established that the Defendant is a "high risk violent offender" for the purpose of s.5E(2) of the Act - that is, whether the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision; 2. if the Court is so satisfied and determines that a high risk violent offender extended supervision order ("ESO") ought be made with respect to the Defendant, the duration of such an order: s.10; 3. if an ESO is made, the conditions which the Court considers appropriate as part of the ESO: s.11.

The Statutory Scheme

Section 3 of the Act provides: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
Courts have emphasised that the legislative purpose of the Act is protective and not punitive, with the protective purpose being fundamental: State of New South Wales v Colebrook [2016] NSWSC 1702 at [9]. Proceedings under the Act are civil proceedings: s.21.
Section 5E is of particular importance in this case. Section 5E provides: "5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence."
It will be noted that s.5E(2) refers to a "serious violence offence". That term is defined in s.5A as follows: "5A Definition of 'serious violence offence' (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A serious indictable offence is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act."
The Plaintiff seeks an order that the Defendant be made subject to an ESO. In that respect, s.5F provides: "5F Extended supervision orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk violent offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk violent offender extended supervision order."
Section 9 provides for determination of an application for an ESO and the factors to be taken into account in that respect. Section 9 states: "9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2), (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). (4) In this section, a relevant offence means: (a) in the case of an application for a high risk sex offender extended supervision order - a serious sex offence, or (b) in the case of an application for a high risk violent offender extended supervision order - a serious violence offence."
If the Court determines that an ESO should be made, s.10 provides with respect to the term of such an order. Section 10 states: "10 Term of extended supervision order (1) An extended supervision order commences when it is made, or when the offender's current custody or supervision expires, whichever is the later. (1A) An extended supervision order expires at the end of: (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. (2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law. (3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender."
Finally, the Act provides in s.11 for conditions that may be imposed as part of an ESO. Section 11 states: "11 Conditions that may be imposed on supervision order An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender."

Some Preliminary Issues

The Plaintiff may only apply for an ESO where, at the time of filing the application, the Defendant was a "supervised violent offender" under s.5J(1) of the Act. The Defendant had been sentenced to a term of imprisonment for murder and, as at the time the application was filed on 30 September 2016, he was on parole for that offence. Accordingly, the Defendant fell within this statutory formula at the time the present proceedings were commenced: s.5J(2)(a)(i) and (iii).
A "violent offender" means a person over 18 years sentenced to imprisonment for a "serious violence offence": s.4. The offence of murder falls within the definition of "serious violence offence" in s.5A(1)(a) set out at [16] above.
Accordingly, these preliminary aspects are satisfied in the circumstances of this case.

Construction of s.5E of the Act

An important issue in these proceedings is whether the Plaintiff has demonstrated that the Defendant is a "high risk violent offender" as defined in s.5E(2) of the Act (see [15] above).
The proper construction of s.5E has been considered recently by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57. A number of propositions emerge from the judgment of Beazley P (Gleeson JA agreeing in a separate judgment).
Firstly, a finding that a person poses an unacceptable risk within the meaning of s.5E(2) is the gateway to the power to make (relevantly) an ESO under s.5F: State of New South Wales v Donovan [2015] NSWCA 280; 90 NSWLR 389 at 396 [24]; Lynn v State of New South Wales at [55], [148].
Secondly, the right of the Defendant to his personal liberty, at the expiration of the sentence of imprisonment being served, is not relevant to the determination whether he poses an unacceptable risk for the purpose of s.5E(2): Lynn v State of New South Wales at [44], [55]-[58], [128], [148].
Thirdly, before the Court embarks upon a determination under s.9 of the Act, it must have been satisfied, to a high degree of probability, that the person is a "high risk violent offender" as provided for in s.5E(2): Lynn v State of New South Wales at [48].
Fourthly, the meaning of the phrase "unacceptable risk" in s.5E raises, in the first instance, a question of statutory construction - what the Court must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision" - the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of s.5E - a determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made: Lynn v State of New South Wales at [51].
Fifthly, the evaluation of whether an offender is a "high risk violent offender" has to be undertaken in the context of legislation with the primary object of ensuring "the safety and protection of the community": Lynn v State of New South Wales at [55].
Sixthly, to the extent that there are differing approaches in first-instance decisions concerning the determination as to whether a person is a "high risk violent offender" within the meaning of s.5E(2), the proper approach is to give the words of s.5E(2) their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act - it is not appropriate to have regard to the serious consequences for the Defendant arising from (in this case) conditional liberty by way of an ESO: Lynn v State of New South Wales at [57]-[58].
Seventhly, the word "ensure" (in s.3(1)) has shades of meaning and, in the context of the Act, the evaluation to be made under s.5E(2) 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 - if it were otherwise, every risk would be unacceptable: Lynn v State of New South Wales at [61].
Basten JA (in a separate judgment) identified four interlocking steps to be undertaken on an application for an ESO (Lynn v State of New South Wales at [124]ff) involving identification of: 1. the nature and seriousness of the risk posed by the offender with respect to further serious violence offences; 2. the appropriate conditions which might be imposed which are part of an ESO; 3. the likely effect of such an order in removing or diminishing the risk; and 4. if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order.

Factors Under s.9(3) of the Act

A substantial volume of documentary material is in evidence for the purpose of the final hearing. I will refer to that evidence under the different headings contained in s.9(3) of the Act. The Defendant's Criminal History and Patterns of Offending Behaviour: s.9(3)(h)
The Defendant was born on 15 March 1979. At the age of 19 years, he committed murder as described in the sentencing remarks of Grove J in R v McGrath at [2]-[3], [6]-[8]: "2 On Sunday 13 December 1998 the prisoner travelled from Fennells Bay (where he was sharing a house with a man named Peter Tinker) to the victim's home in Muswellbrook. Whilst there he attacked him and suffocated him with a wet tea towel. He left the body in the house and returned to Fennells Bay where he arrived on the Monday morning in company with an acquaintance whom he had apparently encountered on his journey. This person departed shortly thereafter and is not relevant to any matter under present consideration. 3 Later that day the prisoner told Mr Tinker that he had killed John Lund. … 6 In evidence in these proceedings the prisoner said that he had heard that the victim was going to move in with friends of his named Graham and Elizabeth who had a three year old daughter. I note that, before John Lund moved in with [xxx] and [xxx] - said to be about three months prior to his death - he was described as living with people named Graham and Elizabeth. 7 Information passed among members of the group that there were allegations against John Lund of sexual assault by him upon the elder of [xxx's] daughters who was then aged eight. On 28 May 1998 the appropriate police had been contacted and a statement from the child had been obtained. The prisoner became privy to the existence of the allegation and was told by [xxx] that there had been a rape to which his response was to say that he would go to Muswellbrook and 'sort it out'. [xxx] told him not to go near the place and to leave it to the police. She specifically asked him not to tell Graham and Elizabeth whom she feared would inform John Lund about the investigation. 8 Late in the evening of Tuesday 15 December police attended the victim's premises in response to information from a neighbour about animal behaviour at the house and concern for the welfare of the occupant. An officer entered through a small bathroom window and discovered a male body supine on the lounge floor. The body was decomposing and the constable had to flee from the emanation of odour. In due course the body was identified as that of John Lund."
Grove J continued at [12]-[15]: "12 The prisoner was arrested on 18 December and interview with police shortly thereafter was recorded on video and audio tape. A search of the premises at Fennells Bay had located store, Medicare, bank and pensioner concession cards taken from John Lund's wallet. The prisoner admitted taking them. He further admitted the killing and, as I noted at the commencement of these remarks, he has pleaded guilty to murder. 13 The physical aspects of the execution of the crime are little disputed. The victim was bashed into unconsciousness or semi consciousness and, thus inhibited from defending himself, he was suffocated with a wet tea towel. What are in dispute are the motive and circumstances which led to that act of murder. 14 The product of the listening device reveals claims by the prisoner that he killed John Lund as an act of vengeance for the alleged abuse of [xxx's] elder daughter. The prisoner proclaimed himself to Mr Tinker as a type of vigilante engaged in protecting children. He added descriptions of his hatred of all offenders of this type. 15 Police seized documents authored by the prisoner which he claimed were drafts of prints for T-shirts and the like and doodlings which he made under the influence of cannabis. Included was a slogan 'No excuse. Child abuse. It sucks.' And a statement 'Proven Hate Equals Death In the Eyes Forever In Little Earthlings' which would appear to be a mis-spelled or irregular intended acronym for the word paedophile."
After noting that the Defendant had provided three versions concerning his motive to commit murder, Grove J continued at [22]: "I am satisfied to the necessary standard that the prisoner's motive in going to Muswellbrook was the execution of a vigilante type of vengeance for the victim's assumed guilt of child abuse. The discussion with Peter Tinker was spontaneous and there is no reason to conclude that the prisoner was inhibited from fully and accurately disclosing his culpability. The version to Ms Robilliard [psychologist] and the Court shows significant contrivance on the part of the prisoner. When speaking to Peter Tinker both before and at the time of being recorded, the prisoner mentioned the children running about the house but it is only in the most recent version that the description has been embroidered with the alleged observation of arousal."
The sentencing Judge expressed his impression that the Defendant "has a very flexible concept of truth" (at [24]) and continued with the following additional findings at [25]-[26]: "25 I find that the prisoner went to Muswellbrook with the intention of killing John Lund; that his motive was an obsessive hatred directed towards a man who was the subject of an allegation of child abuse; that the prisoner's hatred was part of a wider, undiscriminating and obsessive hatred of persons the subject of such allegations and that he executed his intention of killing John Lund when the opportunity arose during the visit. It was not, as claimed to Ms Robilliard, a killing determined by a sudden impulse. 26 I am satisfied that the prisoner has no real remorse for his actions as witness his evidence that the death was a kind of justice that was done. It was instructive to observe the prisoner incanting that retribution for anything John Lund may have done had nothing to do with him, yet eventually he could not resist expressing the view that I have just mentioned towards the end of cross examination."
The Defendant had committed a number of criminal offences before the offence of murder committed in 1998 at the age of 19 years. He committed offences of break, enter and steal and larceny between 1989 and 1992. In November 1993, the Defendant was sentenced by way of a control order and whilst in juvenile detention, committed two separate assaults upon other children for which he was subsequently sentenced to the rising of the Court (Exhibit VC1, pages 41-42).
Given the Defendant's murder offence and issues pertinent to this application, reference ought be made to a psychological committal report of Hany Gayed, psychologist, dated 8 February 1994 where Ms Gayed said (Exhibit VC1, page 398): "During his childhood Andrew has been inflicted with physical abuse from his step father and recalls being continually hit with an electrical cord. Andrew denies any sexual abuse, however Andrew has been involved in incidents of assaulting residents because they have a history of sexual offences against children. One can not but wonder if these residents offences cause such rage in him because of the abuse that he was subjected to and the possibility that it was sexual."
In 1994 and 1995, the Defendant committed offences of malicious damage, obtain benefit by deception, larceny and possession of a firearm (a non-functioning air rifle) for which custodial and non-custodial sentencing orders were made.
Apart from the assaults committed whilst in juvenile detention, the Defendant does not have any recorded history of violence other than the murder conviction. He has, however, given differing accounts of other acts of violence in two Violent Offenders Therapeutic Program ("VOTP") applications whilst in custody. In 2009, he admitted to assaults of different persons when he was aged 16 and 18 years. In 2016, he described other incidents of hitting persons when he was a child.
I have referred earlier to the sentencing remarks of Grove J concerning the index offence of murder. It is to be noted that the Defendant provided differing accounts of the circumstances surrounding the murder. To his flatmate, Mr Tinker, he boasted that he had hit the victim and "I wouldn't be surprised if I fractured his fuckin' skull" and that he had been committing similar crimes against paedophiles before (an allegation as to which investigating police could find no evidence) (Exhibit VC1, pages 127-162, 229-231). The Defendant told Mr Tinker that he struck the victim to the back of the head and then wet a cloth before suffocating the victim and that there were two young men and two girls in the house when he arrived, but they had left shortly afterwards. The Defendant said that he had wiped down things for fingerprints and removed a wine glass from which he had been drinking.
To investigating police, the Defendant claimed that it had been a mercy killing of a man given six weeks to live, who had repeatedly asked the Defendant to kill him. The Defendant told similar things to Justice Health nurses following his arrest and claimed to police that he did not believe that the victim was a paedophile.
In a report of Dr Olav Nielssen, psychiatrist, dated 5 July 1999 prepared for the Defendant's murder sentencing hearing, the Defendant said that he had travelled to Muswellbrook to try and persuade the victim, whom he suspected of having abused his friend's child, not to move in with another family with a young child. He said "I didn't see it as my job to punish people, but the law was about to fail". He said that he did not intend to kill the victim in that he did not take a weapon to the house (Exhibit VC1, pages 390-393).
In a report of Anna Robilliard, psychologist, dated 9 May 2000, the Defendant stated that he had known the victim for about 18 months, and that he knew the family in whose house the victim had lived had a three-year old child, whose screaming appeared to the Defendant to be a sign of abuse. He said that he lost control and snapped (Exhibit VC1, pages 373-382).
In evidence on sentence, the Defendant claimed that his version to Ms Robilliard was the truth. He claimed that he found the victim in a state of sexual arousal when he arrived at the house, in the presence of the children who were visiting. The Defendant has maintained this claim since (Exhibit VC1, pages 364-365, 599-602).
However, as mentioned earlier, Grove J concluded that the Defendant's evidence was "embroidered" with the sentencing Judge finding that the Defendant had travelled to Muswellbrook with the intention of killing the victim (see [37] above).
In his recent conversation with Mr Sheehan, the Defendant maintained the version he had given to Ms Robilliard, claiming that he felt the children were in imminent danger and that it was up to him "to solve the problem" (Exhibit A, paragraph 19). Compliance with Parole Obligations: s.9(3)(f)
The Defendant's non-parole period of 13 years and six months expired on 17 May 2012. It was not until October 2014 that the State Parole Authority ("SPA") granted the Defendant parole release.
The Defendant was released on parole on 17 November 2014. The Defendant was warned not to contact the then 15-year old niece of his victim. Despite this, he established Facebook contact with her (which he denied at the time) and claimed to have heard rumours that she was having a sexual relationship with an older male (Exhibit VC1, page 752). A week later, Kara Thomson, a psychologist with Community Corrections, observed that the Defendant's "current behaviour is consistent with his offending behaving [sic], where he perceives to be the protector/rescuer for females whom he perceives can't look after themselves" (Exhibit VC1, page 754).
The SPA revoked the Defendant's parole as of 13 February 2015 arising from his breach of conditions flowing from his contact with the niece of his murder victim.
The Defendant appeared before the SPA on 24 March 2015 with respect to revocation of his parole. Given the significance of the SPA's determination on that day to the present application, it is appropriate to set out the decision of the SPA as delivered by the Chairperson, the Hon James Wood AO QC (Exhibit VC1, pages 507-509) (the pseudonyms have been used to guard against identification of persons): "HIS HONOUR: The inmate was released to parole on 17 November 2014. His parole was revoked on 13 February in 2015, three months later. Revocation was based on social media posted under the parolee's Facebook profile using his name and deeply offensive and insensitive self given description 'The tea towel bandit'. The significance of this description relates to the fact that the victim of the offence of murder was suffocated to death by his use of a tea towel in revenge for sexual assault allegedly admitted by the victim. Apart from the lack of remorse, insight or victim empathy which this displays, his Facebook communications are disturbing. One dated 1 January 2015 states: 'For those others who have tried to make my world that little bit worse, your time is up. I look forward to an old fashioned square up. Happy New Year, Looking for a rifle.' The latter being an emoticon which he, apparently, selected. Today he has described that as humorous. Although how that can be so considered is beyond imagination. In response on 2 January the comments from various persons who were accepted as friends he noted, 'There are other influences that will be dealt with real soon. Once I'm legal on the road I will be after them'. Then on 24 January 2015 he posted a question, 'Where is [V2]'? and additionally asked, 'More to the point, where is the dog [P1], the putrid piece of shit she is with'. [V2], it is to be noted, is the half-sister and guardian of [V2-S2] who was the niece of the murder victim. The parolee has acknowledged travelling to [A9] intending to hand deliver a letter to [V2] but which he subsequently posted from [A9]. The breach report of 30 January 2015 records that the parolee was given a verbal direction on 19 November 2014 and, again, on 26 November 2014 not to have any contact with [V2-S2]. Following an exchange of messages to [IM5], her partner, which also included a message which was sent to him by [V2-S2] directing no further contact, he then sent a threatening message to her. The parolee needs to understand that his release to parole did not occur as an automatic right. The authority needed to be satisfied that his release was in the public interest and the decision to grant him parole was conditional upon his strict compliance with the conditions imposed. They included a condition to adapt to normal lawful community life. For the short period that he was on parole until these events he had been compliant with his parole conditions and it is regrettable that he has behaved in the way which has been outlined above. The parolee needs to accept that the conduct which led to his original sentence involved the most serious offence in the criminal calendar. It is not a matter which is to be taken lightly by the use of his self described description of 'The tea towel bandit'. The parolee also needs to accept that he has no business interfering in the lives of other persons and that, as I have said, his use of the name tag was totally inappropriate. Each of these matters leaves the authority with a great deep concern as to whether he accepts the criminality for which he has been convicted. The authority is also concerned as to the fact that he seems to consider that he is entitled to interfere in the lives of others as he did in the case of the index offence although, fortunately, his more recent threats or observations have not been carried into fact. The authority takes the view that his perception of justice and his entitlement to take actions in relation to conduct of others, which he considers unacceptable, and his acknowledgments that he learned in custody to verbalise threats and use bluff as a means to bully people, does indicate that he has not acquired the ability at this stage to adapt to a normal lawful community life. The authority takes into account that the public interest, protecting the safety of the community, is of paramount consideration in considering whether to rescind the revocation. It is satisfied that it is not in the public interest at this time to release him back to parole and in these circumstances this decision is that the revocation of 13 February 2015 is to stand for the reasons stated. Parole will be considered at the due date."
The Defendant remained in custody until his further release on parole on 27 May 2016.
In a report to the SPA dated 9 December 2015, it was noted that the Defendant had been reluctant to discuss what had caused the breach of parole and appeared evasive during an interview when discussing his involvement with social media (Exhibit VC1, page 516).
The affidavit of Sarah Gilmour sworn 14 October 2016 notes positive progress for the Defendant in aspects of his current parole. The Defendant has been subject to electronic monitoring as a condition of his current parole. Reports of Mr Sheehan and Dr Chew Following Court-Ordered Examinations of Defendant: s.9(3)(b)
The psychological report of Mr Sheehan and the psychiatric report of Dr Chew are of particular significance to the determination of the present application.
In his report dated 18 November 2016, Mr Sheehan provided the following helpful executive summary (Exhibit A, page 4): "Mr McGrath is a 37-year old male currently serving a custodial sentence for 'murder'. This conviction is recognised as a serious violence offence as defined in the Crimes (High Risk Offenders) Act 2006. I understand that the State of NSW is applying for Extended Supervision Order of 5 years duration. Mr McGrath's risk of committing a serious violence offence is estimated to be in the Medium to High risk category relative to other men who have offended violently. His background is one of poor childhood adjustment (badly aggravated by an experience of sexual abuse), with early expression of a severe conduct disorder and antisociality as a juvenile and young adult. There is some evidence of him attacking other detainees in a juvenile detention centre when he believed them to have committed child sex offences. At the age of 19 years he committed a murder against an adult male whom he believed was a child sex offender and whom he believed presented a threat to young children in his social group. He has committed no violence offences since this time. Through this offence Mr McGrath has developed a distorted sense of identity, as the 'Tea Towel Bandit', enabling him to play a somewhat grandiose role of protector and possibly allowing him play out a role of mastery to compensate for the helplessness experienced as a consequence of his own sexual victimisation as a young child. The intrinsic rewards for this role (and perhaps validation from other prisoners) has made it difficult for him to relinquish this role, and therefore to experience empathy or remorse for his crime, even though it has cost him so dearly (with 16 years in custody). He was paroled to the community in late 2014 but quickly re-established a social presence that continued to trade on his reputation as the 'Tea Towel Bandit'. Despite a number of positive indicators of good social adjustment, he disobeyed specific association directives from his parole officer and became involved as a 'protector' and avenger of a young female, resulting in escalating threat and breach of parole. He has subsequently completed a moderate intensity violence treatment program in custody, allowing him to identify a number of factors involved in his offending and the need to 'back off' when he is tempted to over-involve himself in a protective role in the life of someone he knows. The evidence suggests to me that despite these insights, Mr McGrath remains vulnerable to falling into high risk scenarios such as those described. Given his use of lethal force there is a realistic likelihood that any future violence could escalate to a serious violence offence. In my view, an ESO of three years would be advantageous to assist Mr McGrath to further consolidate on the gains he has made thus far towards stable community life. This period of supervision and support can work towards establishing a manner of social engagement that does not revolve around him occupying the role of protector of the weak. By assisting him to achieve this stable lifestyle as he moves into his fourth decade of life, this may be sufficient to attenuate his risk in an enduring way beyond the expiry of supervision."
It is appropriate to refer in a little more detail to aspects of Mr Sheehan's report. In particular, Mr Sheehan stated that: 1. through the index offence of murder, the Defendant had developed a distorted sense of identity, enabling him to play a somewhat grandiose role of protector, with the intrinsic rewards for this role (and perhaps validation from other prisoners) having made it difficult for the Defendant to relinquish this role and therefore to experience empathy or remorse for his crime; 2. despite positive indicators of social adjustment, the Defendant disobeyed association directives from his parole officer in 2015 and became involved as a "protector" and avenger of a young female, resulting in escalating threat and breach of his parole; 3. he concluded that the evidence suggested to him that, despite the Defendant's insights into the need to back off when tempted to become over-involved, the Defendant remained vulnerable to falling into high-risk scenarios such as those described and, given his use of lethal force in the past, there was a realistic likelihood that any future violence could escalate to a serious violence offence; 4. he considered that an ESO of three years would be advantageous to assist the Defendant to further consolidate on the gains he had made so far towards a stable community life.
Mr Sheehan referred in his report to the Defendant's offending Facebook posts whilst on parole in January 2015 and observed (Exhibit A, paragraph 28): "The behaviours described are of concern because they seem analogous to the process by which Mr McGrath came to commit his index offence. That is, escalating hatred and hostility towards an adult male whom he strongly feels is taking advantage of a young person, with the erroneous perception that it is his personal responsibility as a man to resolve the issue. Parole was revoked as of 13 February 2015 and the revocation was confirmed at a formal hearing before the State Parole Authority on 24 March 2015. Mr McGrath acknowledged that he could "kind of understand why supervisors were concerned about his activities, but he could not reflect an appreciation of how the trajectory of his behaviour was alarmingly close to his index offence. He referred to gaol culture as having influenced his behaviour, in terms of having to 'stand up for yourself' when under threat."
Mr Sheehan considered that there was some evidence to suggest a personality disorder in that the Defendant would meet the criteria for Antisocial Personality Disorder and may also have traits of Narcissistic Personality Disorder (Exhibit A, paragraphs 38-39).
In relation to the Defendant's strong aversion to child sexual abuse and his belief that he was a protector, Mr Sheehan concluded that the Defendant appeared to have benefited from treatment with increased insight, although Mr Sheehan considered gains in psychological therapy concerning the Defendant's underlying fears and vulnerability "may have great value in arresting the core features of his risk of violence" (Exhibit A, paragraph 49).
In cross-examination, Mr Sheehan expanded upon his concerns about the Defendant seeing himself as a protector (T24.17-44, 7 December 2016): "Q. Can I ask you firstly just general questions about Mr McGrath seeing himself as a protector? A. Yes. Q. Is it a problem that he sees himself as a protector per se or is it the approach he has taken in particular on one occasion in the past that's a problem? A. I think in his case it's a problem generally. It's a problem because then it sets the groundwork for the rest of it. If it hadn't been so problematic for him in the past a lot of people would define themselves as a protector, and it may not be pathological, but in his case it's very unhelpful. Q. It's not an unusual or an unnatural reaction to want to help people who find themselves in the position that some of the people who he's sought to protect find themselves in, is it? A. I think it goes deeper than that, Mr O'Neil. I have made this point in the report. I actually think that's really about him, not about the person he's looking to protect. I think it's a self serving dynamic that makes him feel better, that makes him feel more secure in those relationships as well. If I can be the protector then it's a safe relationship where I can occupy that role and be more secure in that relationship. So it's complex, but I see what you're saying, what's wrong with wanting to protect people? It's nice, it's pro social, but in his case, no. Q. Is that part of the point you make in relation to future counselling that, by helping him to address the underlying issue, you say the manner in which he seeks to protect would be addressed? A. Yes. "
Mr Sheehan conducted risk assessments and concluded that on the Violence Risk Scale ("VRS"), the Defendant was within the medium range, but overall in the medium-to-high risk category of violent offending (Exhibit A, paragraph 83). Mr Sheehan concluded that the risk of a serious violence offence was not generated by contact with child sex offenders generally, but where the Defendant's relationship with a seemingly vulnerable person intersected with the presence of an identifiable source of perceived threat - the risk is heightened "through the lens of his relationships" (Exhibit A, paragraph 81).
Mr Sheehan expressed the opinion that an ESO for a period of three years would seem appropriate in the Defendant's case.
In his report dated 19 November 2016, Dr Chew noted that the Defendant maintained strong attitudes about child sex offenders, stating that he thought that such offenders were "less than human" (Exhibit B, paragraph 26). Dr Chew noted that the Defendant said that hurting and killing was wrong and that he would leave any matters to the authorities to address.
Dr Chew noted that persistent violent attitudes, lack of insight and ongoing violent ideation are all empirically validated risk factors contributing to the risk of future violence and that the Defendant's ongoing attitude did increase his risk somewhat (Exhibit B, paragraph 60).
Dr Chew considered that the Defendant may fulfil the diagnostic criteria for Antisocial Personality Disorder, although he scored below the cut-off point for psychopathy (Exhibit B, paragraph 61).
With respect to the Defendant's risk of reoffending, Dr Chew said (Exhibit B, paragraph 62): "It is my opinion that the highest risk scenario for future serious violence remains a similar situation to the index offence- specifically contact with a child sex offender or potential child sex offender who has offended or allegedly offended against someone known to him. I think that alcohol and other drugs could potentially increase this risk. I think that his risk has been moderated somewhat over time particularly with his engagement in treatment programs."
Dr Chew felt that the Defendant's insight into his attitudes towards child sex offenders could improve over time with engagement in an appropriate treatment program addressing some core beliefs, whilst ongoing demonstrated compliance with supervision would further reduce the risk of committing a violent offence (Exhibit B, paragraph 62(b)).
Dr Chew noted that the Corrective Services' assessment of the Defendant using LSI-R placed him in the medium-high range of risk/needs. The VRS assessment placed him in the medium risk range and Dr Chew scored the Defendant on the VRAG scale and placed him in the medium risk category. Using the OxRec tool, Dr Chew placed the Defendant in the medium risk category.
Overall, Dr Chew considered that the Defendant appeared to be in the moderate/medium risk category of further violent offences, which included serious violent offences and less serious violent offences. He noted that it is difficult to be more precise about "serious violent offences" and that no empirically validated risk assessments are available to help with prediction of this specificity of type of offence (Exhibit B, paragraph 63).
Although Dr Chew did not nominate a period for any ESO, he stated that engagement of that type ought be for the medium-to-long term (T39, 7 December 2016). Dr Chew recommended engagement with services and supervision in a gradually reducing regime (Exhibit B, page 32). Assessment by a Relevant Practitioner as to the Likelihood of Reoffending: s.9(3)(c)
A risk assessment report was prepared by Ms Cieplucha and Ms Danielle Matsuo, psychologist, on 9 March 2016 (affidavit of Vincenzo Camporeale, 30 September 2016, Annexure A). The report was prepared following an interview with the Defendant. It assessed the Defendant's risk of reoffending as being in the medium-high range with highest treatment needs in the areas of interpersonal aggression, attitudes and cognition (Exhibit VC1, pages 300-301).
The risk assessment report of 9 March 2016 expressed particular concern with respect to the conduct of the Defendant, referred to in the decision of the SPA with respect to his Facebook account and the characterisation of himself as "The Tea Towel Bandit". In that report, the Defendant was described as having traits suggestive of a criminal personality, which included a lack of empathy, guilt and remorse, grandiosity and an unrealistic sense of self-worth, in addition to manipulation.
Ms Cieplucha and Ms Matsuo said in the risk assessment report of 9 March 2016 (paragraphs 78-79): "78. Based on the available information it is considered that Mr McGrath has had one act of serious violence, which resulted in the death of his victim. This offence occurred within the context of him seeking revenge for an alleged act of abuse against a friend's daughter, which he perceived as a form of justice. There do not appear to have been any additional acts of serious physical violence. It is suggested that should Mr McGrath come into contact with someone suspected of, or charged with a sexual offence against a child, his risk of violence would increase. Mr McGrath holds deep suspicion and resentment towards child sex offenders, which is reflected not only in his index offence, but also by his behaviour at Kirkconnell prior to commencing the VOTP. His attitudes expressed during this current assessment indicate that he still perceives his actions as being appropriate and justified. 79. Potential situations that could elicit aggressive responses would include those that Mr McGrath considers confrontational, provocative or threatening. Whilst Mr McGrath reported a tendency towards retaliation in the form of verbal abuse, intimidation and threats, he does have the potential for extreme physical violence. The likelihood of him committing future violence would increase if he experiences conflict in which he feels compelled to assert his dominance, and would significantly increase if he were to have access to a weapon." Statistical Likelihood of Reoffending: s.9(3)(d)
The risk assessment report of 9 March 2016 noted a number of tests previously administered to the Defendant. In 2009, he was assessed using the LSI-R test, an actuarial risk instrument that provides an indication of a level of risk of general and violent recidivism within 12 months of release. The Defendant's score fell in the medium range of risks/needs, with the same result after retesting in 2010. Following the Defendant's breach of parole in 2015, it was readministered with a medium-high range result.
An HCR-20 test was administered, this being a structured professional judgment tool with a check list of risk factors specific to violence. The Defendant was found to be in a moderate risk category in 2012 on this test. Further assessments included the VRS, which was administered in 2016. This is a conceptual actuarial risk assessment specifically developed to assess the risk of violence for forensic clients, particularly those being considered for release after a period of treatment. It assesses both static and dynamic risk factors to provide a probability of an individual's risk for violence. Application of this test found the Defendant's risk to be within the medium risk range.
On 2 August 2016, a supplementary risk assessment report considered the psychological report of Ms Gayed in 1994, where the Defendant had been noted to have assaulted others whom he believed had sexually abused children (see [40] above). The risk assessment report noted that this behaviour was consistent with the index offence and was demonstrative of entrenched attitudes, but did not alter the previous assessment of medium-high risk (Exhibit VC1, pages 278-280). Corrective Services Report About Management of the Defendant in the Community: s.9(3)(d1)
A risk management report was prepared by Clare McNaughton, Senior Community Corrections Officer, on 22 April 2016 (Exhibit VC1, pages 281-298). The report noted positive aspects of the Defendant's response to supervision on parole following his release in late 2014, but noted the issues with contact in disobedience of directions and Facebook threats that led to parole revocation. The risk management plan sets out other features which were proposed with respect to the Defendant. Rehabilitation and Treatment Programs Participated in by the Defendant and his Willingness to Do So and his Level of Participation: s.9(3)(e)
The Defendant has completed a number of courses and treatment programs including CALM and Getting SMART in 2012.
In September 2013, the Defendant was offered a place on the VOTP program, but reportedly declined as his classification had previously been reduced to C3 without having to do the program, and he was described as not having expressed interest in restorative justice programs to date (Exhibit VC1, pages 450-456).
In February 2016, the Defendant was recorded as saying that he did not want to take part in the VOTP or EQUIPS programs in custody as Corrective Services had had a year to offer those programs and it was now too late (Exhibit VC1, page 778).
The Defendant completed a number of trade courses and vocational certificates whilst in custody (Exhibit VC1, pages 324-334). Views of the Sentencing Court at the Time the Sentence of Imprisonment was Imposed: s.9(3)(h1)
Reference has been made earlier in this judgment to a number of findings made by Grove J in his remarks on sentence (see [35]-[38] above). It is not necessary to repeat them under this statutory heading. Any Other Information as to the Likelihood of Committing Further Serious Violence Offences: s.9(3)(i)
As counsel for the Plaintiff submitted, the Defendant has been in custody for nearly all of his adult life and significant parts of his adolescence. The age at which the Defendant committed the offence of murder may make it more difficult to predict future violence, however it is relevant to take into account his conduct whilst in custody, his continuing obsession and his conduct when first released to parole in late 2014 when considering this aspect.
I accept the Plaintiff's submission that other significant barriers to the Defendant's progress appear to be his continuing attitude justifying the murder offence, and the need to develop insight into the interplay between his perception of himself as a protector and the danger that that poses for commission of future serious violence offences, in circumstances where he appears to continue to harbour a deep dislike of child sex offenders and to be easily persuaded that certain people may fall within that category. The Safety of the Community: s.9(3)(a)
Although this statutory factor appears first within s.9(3), it is appropriate to refer to it at the end of consideration of other factors under s.9(3) of the Act. This is because all of those factors, in one way or another, bear upon the safety of the community. It is important to keep in mind that the primary object of the Act is to provide for the capacity to make certain orders so as to ensure the safety and protection of the community (see [13]-[14], [30], [32] above).
It is appropriate to draw together a number of these factors under this important heading.
I accept the submission for the Plaintiff that the Defendant's theme of protector of the vulnerable has manifested itself at different points in his life.
As early as 1994, the Defendant demonstrated a capacity to assault other persons because of a belief that they had a history of sexual offences against children (see [40] above). The Defendant confirmed to Dr Chew that he had assaulted two sex offenders whilst in juvenile detention (Exhibit B, paragraph 53).
The Defendant committed murder in 1998 in circumstances where he perceived himself as acting as a protector implementing vigilante justice against the victim for his assumed involvement in child abuse. The Defendant acted upon this attitude, in the gravest way known to the law, thereby taking a human life.
Whilst in custody in 2010, the Defendant placed a newspaper clipping (reporting his crime) up on display in his cell as a form of "paedophile deterrent" (Exhibit VC1, pages 616-617).
Of critical importance is the conduct of the Defendant in late 2014 and early 2015 following his release to parole. Despite a warning not to contact the 15-year old niece of his victim, the Defendant established Facebook contact with her. Thereafter, the Defendant set up a Facebook page under the heading "The Tea Towel Bandit" and expressed other views relating to that topic, as outlined in the decision of the SPA on 24 March 2015 (see [52] above).
A fair reading of the risk assessment report conducted by Corrective Service officers, and of the independent expert reports of Mr Sheehan and Dr Chew, provides a substantial objective foundation for concerns with respect to the conduct of the Defendant in the community without appropriate supervision.

Has the Plaintiff Established that the Defendant is a High Risk Violent Offender for the Purpose of s.5E(2) of the Act?

It is necessary to address the specific question posed by s.5E(2), which has been described as the gateway through which the Plaintiff must pass before the Court is to consider the making of an ESO (see [26] above).
At the outset, it is important to acknowledge that the question is not whether it would be desirable for the community and the Defendant that he be subject to supervision in the community following the expiration of his sentence. That is not the question to be considered by the Court. The ESO is not intended to be used as a substitute for parole: State of New South Wales v Sancar [2016] NSWSC 867 at [90].
It is necessary for the Court to consider whether it is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. However, the Court is not required to determine that the relevant risk is more likely than not in order to make a finding of unacceptable risk: s.5B(3).
The term "serious violence offence" is defined in s.5A of the Act so as to confine the class to graver forms of offences of violence (see [16] above). It is important to keep this aspect in mind. It is not sufficient to approach the statutory question in s.5E(2) upon the basis whether the Defendant constitutes an unacceptable risk of committing any offences of violence if not kept under supervision: State of New South Wales v Sancar at [86].
A question arises as to whether the requirements of s.5E may be satisfied in this case where a single very serious crime of violence has occurred. Mr O'Neil sought to rely upon the decision in State of New South Wales v Sancar in this respect. As has been seen, however, the evidence in the present proceedings involves the unusual circumstances of the index offence of murder itself and more recent conduct on the part of the Defendant (in late 2014 or early 2015) which gives rise to concern as to his risk of serious violent reoffending. This case is significantly different from State of New South Wales v Sancar.
It is important to note that the Applicant has in fact committed murder in the past. Further, the context in which he murdered the victim in 1998 was one involving thought processes and attitudes which have manifested themselves in the Defendant, both before the murder (his 1994 assaults of others in juvenile custody) and since then (his acts in boasting of his reputation, in particular by his Facebook posting and associated comments in late 2014 and early 2015).
It is true, as counsel for the Defendant submitted, that the 2014-2015 activities did not translate into any acts of violence, let alone serious violence offences. However, the Defendant has committed murder in the past whilst motivated by similar thought processes. Some 16 years later, when the Defendant had emerged from custody and the need to control his conduct was manifest, he acted in a manner which confirmed the continuation of his deep-seated views which had shown themselves, and been acted upon, in a most serious fashion in the past.
This is a most unusual case. It would be wrong to approach this matter upon the basis of concentration upon a single serious violence offence (murder) committed long ago in considering whether the requirements of s.5E(2) have been met.
The Defendant has been and remains a complex individual with unusual thought processes with respect to protection of others whom he perceived to be vulnerable. The thought processes upon which he acted at the age of 15 years (in juvenile detention) and again at the age of 19 years (the murder offence) continue and remain current in the Defendant, now 37 years old.
I have had regard to the various forms of evidence before the Court on this application which address static and dynamic risk factors in the Defendant. In approaching an assessment of the risk of the Defendant committing a serious violence offence in the future, I keep in mind the gravity of offences which constitute the threshold for this category. I have kept in mind, as well, Dr Chew's evidence that a statistical assessment tool confined to serious crimes of violence does not really exist (see [72] above).
A person who is minded to carry out acts of violence motivated by vigilante action, with the view to protecting a person whom he perceives as being vulnerable, is likely to use violence and, if necessary, significant intentional violence for this purpose. The Defendant has murdered in the past in this very scenario.
It is important that an air of practical reality be maintained in approaching the predictive exercise contained in s.5E(2) of the Act. The potential catastrophic consequences of the repetition of the Defendant's 1998 homicidal conduct should be kept in mind: State of New South Wales v McGrath at [52].
I accept the Plaintiff's submission that the Defendant, prior to the murder and immediately after it, exhibited a strong obsession with and an antipathy towards persons whom he believed to be child sex offenders who may place at risk a vulnerable person whom the Defendant protected. That obsession has continued to manifest itself throughout the period of his imprisonment with the Defendant seeing himself as a protector of the vulnerable.
The Defendant's obsession with paedophiles has been linked by Mr Sheehan and Dr Chew to risk scenarios where the Defendant has contact with an alleged child sex offender who has potentially offended against someone known to the Defendant. The Defendant's risk is heightened "through the lens of his relationships". There is a complex structure of persons and relationships involving the Defendant which has given rise to difficulties in the past. There is a real and tangible prospect of the Defendant adopting his protector role once again with respect to one or other of the persons who constitute the extended group of persons referred to in the evidence.
My assessment may have been different with respect to s.5E(2) had the Defendant not demonstrated, soon after his release on parole in late 2014, the very attitudes which had set the scene for the murder in 1998.
The various risk assessments which have been undertaken have involved different levels of risk depending upon the assessment tool utilised. In my view, the most important one in the assessment of medium-to-high level of risk identified in the risk assessment report identified by Ms Cieplucha and Ms Matsuo in March 2016 (see [74]-[76] above).
The Defendant has been in custody for more than 17 of the last 18 years of his life. The steps which he is presently taking under parole supervision are tentative, although they are displaying some promising signs.
In all the circumstances of this unusual case, having undertaken the evaluative process required (see [29] above), I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
The Plaintiff has demonstrated, to the requisite standard, that the matter should proceed through the s.5E(2) gateway to an assessment as to whether an ESO should be set, and if so for what period and subject to what conditions.
In reaching this conclusion, I have kept in mind that the degree of risk in this instance should be weighed against possible outcomes. Given the Defendant's use of lethal force in the index offence, there is a realistic and tangible likelihood that any future violence could escalate to the level of a serious violence offence.

Should an ESO be Made in this Case?

I have expressed my satisfaction that the Defendant is a high risk violent offender as defined in s.5E(2) of the Act. Accordingly, it is open to the Court to make an ESO with respect to the Defendant under s.5F of the Act.
In determining whether to make an ESO with respect to the Defendant, the Court must have regard to the statutory factors identified in s.9(3) of the Act and to any other matters which it considers relevant. I have set out in some detail the evidence which bears, directly or indirectly, on the various statutory factors under s.9(3) of the Act. I have noted, as well, that these matters bear upon a critical statutory factor, being the safety of the community under s.9(3)(a) of the Act.
I express my satisfaction that the Court should determine the Plaintiff's application by making an ESO with respect to the Defendant under s.9(1)(a) of the Act.

Duration of ESO: s.10

The Plaintiff submitted that an ESO should be made for a period of five years. Although it was acknowledged that Mr Sheehan had proposed a period of three years and Dr Chew had not specified a period other than a medium-to-long term period, Mr Aitken submitted that given the variety of factors in this case, a five-year term should be set.
Mr O'Neil submitted that, if an ESO was to be made, it ought be of a very short duration. He submitted that an ESO for a period of 15 months would be appropriate in this case, which would constitute a total period of supervision for two years by way of parole or ESO.
In considering an appropriate term for an ESO, the Court should keep in mind that the purpose of the legislation is protective and not punitive, and that different factors apply to those concerning the determination of a term of imprisonment: State of New South Wales v Tillman [2008] NSWSC 1293 at [57]-[59], [61]-[63]. At the same time, the Court should not be blind to the practical effect of such an order, which will place restrictions upon the liberty of the Defendant in a number of respects: State of New South Wales v Tillman at [60]. The restrictions on the liberty of an individual should be taken into account in determining the term and conditions of an ESO.
In my view, the evidence of Mr Sheehan is of considerable value on this issue. A period of three years is a substantial one, which will allow the benefits of the ESO to apply to the Defendant as he continues his reintegration into the community. A period of three years is also consistent with the opinion of Dr Chew that a medium or longer term period of supervision is appropriate in this case.
I am satisfied that the ESO with respect to the Defendant should operate for a period of three years.

Conditions of ESO: s.11

With respect to conditions, it is necessary to keep in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached. A proper basis needs to be demonstrated for including the conditions: State of New South Wales v Ali [2010] NSWSC 1045 at [88]; Lynn v State of New South Wales at [141]. Although the discretion conferred by s.11 is a broad one, it has to be exercised in conformity with the legislative purpose: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 at 76 [50]. The Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales at 76-77 [53].
In accordance with usual practice, a set of draft conditions was attached to the Summons initiating the present proceedings. Those conditions have been amended and refined prior to and in the course of the hearing, as a result of evidence given by witnesses and submissions made by counsel.
I will refer to the various categories of proposed conditions and, where necessary, resolve any contest as between the parties with respect to the appropriateness of those conditions. I will use the paragraph numbers applicable to the settled set of conditions as sought by the Plaintiff at the conclusion of the hearing. Monitoring and Reporting
I propose to impose Conditions 1, 2 and 3 which were not controversial at the hearing. Electronic Monitoring
Conditions 4, 5 and 6 relate to electronic monitoring. It was submitted for the Defendant that a shorter period ought be fixed for electronic monitoring, namely a period of about six months instead of 12 months under Condition 6.
I am satisfied that the period of 12 months provided for in Condition 6 is appropriate in this case. Schedule of Movements
Conditions 7-10 relate to the use of a schedule of movements. The proposed conditions do not provide for immediate activation of the requirement for a schedule of movements. Rather, what is proposed is that these conditions be put in place, as against the prospect that the conditions may need to be activated as time passes with the Defendant at liberty in the community. The evidence indicates that a schedule of movements may be needed if the Defendant has particular difficulties in reintegrating in the community.
It was submitted for the Defendant that, if a schedule of movements was not required from the outset, then conditions should not be put in place for its possible use during the ESO.
I am satisfied that Conditions 7-10 ought be set as part of the ESO. These conditions constitute a flexible aspect of the ESO, which will allow appropriate supervision and assistance to be provided in the event that the Defendant struggles with his ongoing period settling back into the community. In my view, the conditions are reasonable and ought be set. Accommodation
Conditions 11-13 relate to the Defendant's accommodation and are not controversial. Place and Travel Restrictions
Conditions 14-16 relate to place and travel restrictions. They are not controversial and, in my view, are reasonable proposed conditions. Employment, Finance and Education
Conditions 17 and 18 relate to the Defendant's employment, finance and education.
I note that the Defendant recently lost his employment, but he has demonstrated a strong desire to obtain employment and he will be assisted in this respect by the Departmental Supervising Officer ("DSO"), Mr Dayal. In my view, these conditions are reasonable. Drugs and Alcohol
Conditions 19-21 provide for restrictions upon the Defendant's possession or use of alcohol and prohibitions upon his possession or use of drugs.
It was submitted for the Defendant that flexibility was appropriate, in particular with respect to restrictions on possession and use of alcohol. I note in this respect that the conditions are flexible in the sense that the DSO is entitled to permit the Defendant to use alcohol or to enter premises, if considered appropriate.
I am satisfied that these conditions are reasonable and appropriate. Non-Association
Conditions 22-26 provide for non-association by the Defendant with certain specified persons (described by pseudonyms).
Submissions were made at the final hearing concerning these proposed conditions. Mr O'Neil submitted that it was beneficial if the Defendant was permitted to make contact with one or more of these persons with whom he has had past family and other associations.
Mr Aitken submitted that associations with one or more of these persons had given rise to difficulties in the past (when the Defendant had assumed his protector role) and that appropriate safeguards were necessary as part of the ESO.
I have regard to the evidence of Mr Sheehan and Dr Chew on these aspects which, on balance, support the implementation of non-association conditions, but with a measure of flexibility whereby contact may be undertaken with the prior approval of the DSO.
I am satisfied that these conditions are reasonable and appropriate in the circumstances of the case. Weapons
Conditions 27 and 28 relate to weapons. They are not controversial and ought be fixed in the circumstances of this case. Access to the Internet and Other Electronic Communication
Conditions 29-34 are intended to place restrictions upon the Defendant's access to the Internet and other electronic communication, including social media.
Mr O'Neil submitted that, whilst scrutiny of social media was appropriate, a broader process of scrutiny of the Defendant's email accounts may go too far.
Mr Aitken submitted that the Defendant's activities on Facebook in late 2014 and early 2015 provided a clear context for conditions of this type. It was submitted that a capacity to consider the Defendant's email accounts was part and parcel of an appropriate degree of supervision of his social media activities.
I am satisfied that Conditions 29-34 are both reasonable and appropriate in the circumstances of this case. The Defendant's activities in late 2014 and early 2015 provide a clear foundation for regulation and supervision in this area. In my view, the proposed conditions constitute a reasonable balance as between the public interest in maintaining supervision of the Defendant and protection of his own privacy. Search and Seizure
Conditions 35-39 relate to search and seizure.
Submissions were made as to the necessity of provision for a "pat-down search" in Condition 36. It was submitted for the Plaintiff that this condition was appropriate as a means of determining, for example, whether the Defendant had a second mobile phone which he was using for social media purposes.
I am satisfied that these conditions are appropriate, based as they are upon the reasonable and proper exercise of discretion by the DSO as part of the supervision of the Defendant. Personal Details and Appearance
Conditions 40-44 relate to the Defendant's personal details and appearance. No submissions were made against these conditions which are not controversial.
I regard these conditions as being reasonable and appropriate in the circumstances of the case. Medical Intervention and Treatment
Conditions 45-48 relate to medical intervention and treatment.
Once again, no submission was made in opposition to these conditions which provide for appropriate flexibility, in particular with respect to attendance by the Defendant at psychiatric and psychological assessments, therapy, support and treatment as indicated by the DSO.
I regard these conditions as being appropriate and reasonable.

Conclusion and Orders

The Plaintiff has established that the Defendant is a high risk violent offender for the purpose of s.5E(2) of the Act. I am satisfied that an ESO should be made in this case for a term of three years. The ESO will contain conditions in the final form of the draft conditions as they stood at the conclusion of the hearing on 7 December 2016.
I make the following orders: 1. an order pursuant to ss.5F and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the Defendant be subject to a high risk violent offender extended supervision order for a period of three years from the date of this order; 2. an order pursuant to s.11 of the Crimes (High Risk Offenders) Act 2006 directing that the Defendant, for the period of the high risk violent offender extended supervision order, comply with the conditions set out below in the schedule to this judgment.

SCHEDULE OF CONDITIONS OF SUPERVISION ANDREW MARK MCGRATH Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting

The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions by his DSO or any other person supervising him. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.
If the defendant is not charged with any criminal offence, for a period of 12 continuous months from the date of the commencement of the ESO, the defendant will no longer be required to wear the electronic monitoring equipment and condition 4 will cease to apply.
If electronic monitoring is removed because of condition 5 and the defendant is then charged with any offence of breaching the ESO, or with any other criminal offence, the DSO or any other person supervising the defendant may reapply condition 4. Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period
The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
The defendant must live at an address approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. Part C: Place and travel restrictions
The defendant must not leave New South Wales without the approval of CSNSW.
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must not go to a place if his DSO tells him he cannot go there. Part D: Employment, finance and education
If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
The defendant must not start any job, volunteer work or educational course without the approval of his DSO. Part E: Drugs and alcohol
The defendant must not possess or use alcohol unless permitted by the DSO for specific occasions and must not possess or use cannabis or any other prohibited substance.
The defendant must submit to testing for alcohol and prohibited drugs as directed by his DSO.
The defendant must not enter any licensed premises (but not including restaurants, cafes and cinemas) where alcohol is sold without the approval of his DSO. Part F: Non-association
Unless otherwise approved by the DSO in writing, the defendant must not approach or have contact with: a. P4; b. V2-M; c. V2; d. V2-S2; or e. members of the victim's immediate or extended family, including, but not limited to, V2-F. For the purposes of this condition, "contact" includes in person or via a third party, by phone, internet, text, letter, social media or other means of communication.
The defendant must not associate with people that his DSO tells him not to.
The defendant must not intentionally associate with any people who are consuming or under the influence of illegal drugs (or alcohol, unless he obtains prior approval from his DSO, except for in relation to cafes or restaurants or cinemas).
If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service Part H: Weapons
The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.
The defendant must not carry on his person, at any time, ammunition. Part I: Access to the internet and other electronic communication
The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
The defendant must not create a social media account or operate any existing accounts on social media without the prior approval of his DSO. Social media includes but is not limited to Facebook, Twitter, Instagram, Snapchat and any similar media used for communication with other users.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part J: Search and seizure
If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person.
For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched.
During a search carried out pursuant to condition 35 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 35 to 38 above. Part K: Personal details and appearance
The defendant must not change his name from "Andrew McGrath" or use any other name without the approval of his DSO.
The defendant must not use any alias, log-in name, or a name other than "Andrew McGrath" or use any email address other than those known to the DSO under condition 29 above, on any internet site, any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
The defendant must not change his appearance without the approval of his DSO.
The defendant must let CSNSW photograph him.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part L: Medical intervention and treatment
The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2016

At a glance

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Judgment (14 paragraphs)

Parties

Cases Cited (10)